This week should bring two significant Supreme Court decisions on the matter of same sex marriage, in the cases of Hollingsworth v. Perry (the California Proposition 8 case) and the United States v. Windsor (the DOMA issue). It would be a shame for the Court to hand down any sweeping ruling on the issues involved. Just like it did in Roe and Doe, the Court could stop the conversation, halting the ability of voices to be heard and for this to play out in a representative political sphere.
Representative politics ought to represent, and the people and their representatives should decide what marriage is, and whether they wish to change their minds on it, not the Court.
The Summer 2013 issue of The City, which mails this week, is full of smart writing on the issue of marriage and religious liberty. In editing the issue, I read a great deal of the work from Robbie George, Ryan T. Anderson, and others who have been making essentially the natural law argument in defense of the traditional definition of marriage. The core of their argument is here. Upon closer inspection, I think they have really been arguing against the rise of something which has a much larger impact than just a small number of homosexuals getting married -- they have instead been arguing against the modern concept of sexual identity. And this is a much tougher task, considering how ingrained this concept has become in our lives.
During the sexual revolution, we crossed a line from sex being something you do to defining who you are. When it enters into that territory, we move beyond the possibility of having a society in which sex acts were tolerated, in the Mrs. Patrick Campbell sense -- "I don't care what they do, so long as they don't do it in the street and frighten the horses" -- and one where it is insufficient to be anything but a cheerleader for sexual persuasion of all manner and type, because to be any less so is to hate the person themselves. Sex stopped being an aspect of a person, and became their lodestar -- in much the same way religion is for others. As Walker Percy wrote, "Pascal told only half the story. He said man was a thinking reed. What man is, is a thinking reed and a walking genital."
The problem with gay marriage is not about gay people getting married -- they've already been doing that, or living that way. The problem with gay marriage is not that it will redefine marriage into a less valuable social institution in the eyes of the populace -- that is already happening, has been for decades, and will continue regardless of whether gays are added to it or not. And the problem with gay marriage is not about the slippery slope of what comes next -- though yes, the legal battle over polyamory and polygamy is inevitably coming, as the principle of marriage equality demands it does (these relationships already exist below the radar, albeit with more poly than amory involved -- of the 500 gay couples followed in the respected San Francisco study, about half of the partners have sex with someone else with their partner knowing).
No, the real problem with gay marriage is that the nature of the marriage union is inherently entwined in the future of the first line of the Bill of Rights: our right to religious liberty. Orthodox believers of Christian, Muslim, and Jewish faiths were slow to understand this. I'm talking about something much bigger here than the discrimination lawsuits brought across the country against bakers and photographers: I'm talking about whether churches will be able to function as public entities in an era where their views on sin, particularly sexual sin, are in direct conflict with not just opinion but the law -- and proselytizing those views from the pulpit or in the public square will be viewed as using the protection of religious expression to protect hateful speech.
We saw this problem already in Illinois's marriage law, where churches which do not allow same sex unions would essentially have to close their doors to full participation in civil society. We see it as a constant issue regarding Canada's hate speech laws, where courts must discern whether quoting Bible verses amounts to "harming the public discourse." We will see it more here. That obvious oncoming clash strikes me as the most troublesome aspect of this, and the one that has received the least attention in the rush to legalize. The argument has been more about benefits and social outcomes and "won't somebody think of the children," ignoring the core problem, which raises challenges to the freedom of speech and expression the likes of which led to the pilgrims crossing the sea in the first place.
The conflict between sexual liberty and religious liberty is unlikely to be one the religious will win, in large part because of the broad and increasing acceptance of an idea President Obama has espoused more than once in public: that the religious have a freedom to worship, and that's where it ends. When you leave the pew, you must leave your faith there. Among the religious, this is absurd -- their entire lives are defined by their faith, in ways large and small. For both Christianity and Islam, the core of their faith is built on a call to take the message to the world, spreading it through public witness and preaching. Yet this belief in the limited freedom to worship is what led Obama's administration to argue that faith-based hiring and firing is a discriminatory act for religious entities. It will lead to similar cases in the years to come regarding the marriage issue, but not just focused in that space -- expect it to factor in divorce proceedings, custody battles, and more points involving the nice folks from Child Protective Services. Expect it also to factor in dramatically expanding the scope of these discrimination lawsuits -- think on the doctor in California who was brought up on discrimination charges for referring a lesbian couple to a colleague for artificial insemination.
In a litigious society, those conscience conflicts will multiply, with pressure on anyone who "refuses and refers" to be stripped of their government-provided license or memberships in professional society. This will occur in part because the gay and lesbian population is distinctly different in comparison to the rest of the public when it comes to religion. Half of the LGBT population is atheist, agnostic, or religiously unaffiliated -- and this makes them far less likely to respect the religious defenses of those they view as preaching and practicing bigotry, and recruiting people to join their bigoted club.
Without religious liberty, there really is no such thing as free speech. When government can pick and choose which form of expression is religiously defensible and which is unjustified hate, it fundamentally alters the relationship between state and citizen. If a different path toward gay marriage had been followed -- the compromise of a simple civil union approach to ensure access to rights and benefits -- it's possible this clash could've been avoided. A federalist solution to marriage could've slowed the approach to the issue to a point where the concerns of the faithful could achieve proper protection. But those for whom sexual identity is paramount have insisted on redefining institutions, through a series of repeated flashpoints -- from the Boy Scouts to the Catholic hospitals and adoption centers -- disregarding any of the outcomes. The calculation is simple: ensuring the supremacy of their worldview is the goal, and those who disrespect it (for religious reasons or not) deserve to be shunned, regardless of the fallout for civil society. And there will be fallout.
So the real issue here is not about gay marriage at all, but the sexual revolution's consequences, witnessed in the shift toward prioritization of sexual identity, and the concurrent rise of the nones and the decline of the traditional family. The real reason Obama's freedom to worship limitation can take hold is that we are now a country where the average person prioritizes sex far more than religion. One of the underestimated aspects of the one out of five Americans (and one out of three Millennials) who are now thoroughly religiously unaffiliated is that, according to Barna's research, they aren't actually seekers. They're not looking or thinking about being part of a community focused on spirituality, in prayer, fellowship, worship, or anything else. Their exposure to faith is diminished because they want it to be.
In a nation where fewer people truly practice religion, fewer people external to those communities will see any practical reason to protect the liberty of those who do. The world could in time come full circle to Mrs. Campbell's old line: You are free to believe, as long as you don't do it in the streets, so as not to frighten the horses.