Tag Archives: Religion and Same-Sex Marriage

Thoughts on the Political Psychology of Compromise

Professor Thomas Berg (St. Thomas) posted a very thoughtful comment a few days ago on two pieces about same-sex marriage written respectively by Professors Michael Perry and Rick Garnett. I’ve reprinted my thoughts about Tom’s comment below, in case it is of interest to readers here.

Reading Tom’s thoughtful comment below is a pleasure. He takes each of Michael’s and Rick’s respective pieces, notes and elaborates on areas of agreement, and proceeds to explain with care where he may have a different view. I should also say that I very much respect and admire the work that he, Professor Laycock, Professor Wilson, Rick, and Michael (among others) have been doing on the issue of religious exemptions and same-sex marriage.

The tail end of Tom’s post caught my eye: “In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples’ efforts to live out their deep, pervasive commitments–but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions.  It is frequently argued that activists for SSM, “aggressive and uncompromising,” will never return that sympathy.  But the struggle here is, as in so many other cases, to convince those in the middle.  My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a “live and let live” approach that will protect traditional religious organizations’ ability to maintain their identities.”

Here are a few friendly questions for Tom about this paragraph, offered up in an appreciative spirit. The overarching question is: Why is this your judgment? More specifically, what is the basis for the judgment that, as a predictive matter, a metaphorical cessation of hostilities on the substantive question of same-sex marriage will, as time goes on, result in a metaphorical cessation of hostilities on the substantive question of religious exemption? It seems to me that in order to reach that conclusion, one would have to believe certain other things, too–things which are not necessarily particular to this debate but may reflect more general beliefs about political psychology. It is those more general beliefs that I want to explore and think about in this post.

First, it seems to me that one would need to believe in a theory of what I’ll call sympathetic reciprocity in politics (the word “sympathy” appears several times in Tom’s comment), which might go something like this: in the realm of politics or policy-making, over the long-term, people remember and respect concessions, and they respond to those concessions with concessions of their own. They reward sympathy with sympathy. And eventually, with time and good faith, a people that holds radically different beliefs about the good life can achieve a modus vivendi–a ‘live and let live’ ethic–by observing a policy of sympathetic reciprocity.

Setting aside this particular controversy, though, I wonder whether that is an accurate description of the reasons that political concessions generally get made. We do not accept a ‘live and let live’ ethic for many issues of public concern; we do accept them for others; and the issues for which we do and do not accept such an ethic are relatively stable but always changing. But is the extent to which we accept such an ethic in turn dependent on a theory of sympathetic reciprocity–that is, on the extent to which those with whom we disagree have previously extended sympathy toward the policy that we champion and that they disavow? Does politics have a sympathetic memory in this way, and does it reward those who moderate their views with reciprocal concessions? Or is the acceptance of a ‘live and let live’ ethic more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends–in sum, is it far more dependent on considerations of cultural and political power? I grant that this is a gloomier view than I think is at work in Tom’s comment. I’m not sure that I endorse it in an unqualified way. But I hope Tom might say a little bit more about why–on what grounds–he holds (or seems to hold) to the comparatively sunny view of sympathetic reciprocity in politics.

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Garnett on Same-Sex Marriage and Religious Freedom

Our friend Rick Garnett (Notre Dame) has a short piece on Commonweal concerning the implications of the Supreme Court’s recent same-sex marriage decisions (Rick’s primary focus is the DOMA decision, United States v. Windsor) for claims of religious freedom. The essay may be usefully read, I think, as having larger application to the issue of exemptions from generally applicable laws. A bit from the conclusion of Rick’s essay:

It is easier to respect religious freedom in law and policy when everyone agrees or when governments do not do very much. With disagreement and regulation, however, inevitably comes conflict between religious commitments and legal requirements and, when it comes, the majority tends to take care of itself. What about the rest? In a constitutional democracy like ours, we are generally willing to absorb some costs and suffer some inconveniences in order to accommodate the invocation of rights by dissenting or idiosyncratic minorities, especially when the majority thinks that it has a stake in those rights. For example, America still takes a robustly libertarian approach to the freedom of speech, and protects offensive and worthless expression to an anomalous extent, because most Americans still think that protecting misuses and abuses of the right is “worth it.”

However, as religious liberty increasingly comes to be seen as something clung to by a few rather than cherished and exercised by many, as religious traditions and teachings start to strike many as the expensive and even dangerous concerns of quirky, alien margin-dwellers, and as the “benefits” of allowing religious believers’ objections or religious institutions’ independence to stand in the way of the majority’s preferred policies begin to look more like extractions by small special-interest groups than broadly shared public goods, we should expect increasing doubts about whether religious liberty is really “worth it.” We should be concerned that the characterization by the majority in Windsor of DOMA’s purpose and of the motives of the overwhelming and bipartisan majority of legislators that supported it reflects a view that those states—and religious communities—that reject the redefinition of marriage are best regarded as backward and bigoted, unworthy of respect. Such a view is not likely to generate compromise or accommodation and so it poses a serious challenge to religious freedom.

Young, “Religion, Sex, and Politics”

PrintNext month Fernwood Publishing will publish Religion, Sex, and Politics: Christian Churches and Same-Sex Marriage in Canada by Pamela Dickey Young (Queen’s University). The publisher’s description follows.

Same-sex marriage continues to be a heated issue in Canadian politics. Why does this issue persist in the headlines and remain so controversial? What place does religion have in legislative and legal decisions? Religion, Sex and Politics analyzes the same-sex marriage debate in Canada by examining the intersections between religion, sexuality and public policy. Furthermore, the various arguments made by religious groups, both for and against same-sex marriage, are discussed, illustrating the range of perspectives on sexuality espoused by Christian groups and the numerous ways in which they influence the outcomes of legislation and court decisions.

Walhof on Religion and the Public Sphere

Darren R. Walhof (Grand Valley State University) has posted Habermas, Same-Sex Marriage and the Problem of Religion in Public Life. The abstract follows.

This article addresses the debate over religion in the public sphere by analysing the conception of ‘religion’ in the recent work of Habermas, who claims to mediate the divide between those who defend public appeals to religion without restriction and those who place limits on such appeals. I argue that Habermas’ translation requirement and his restriction on religious reasons in the institutional public sphere rest on a conception of religion as essentially apolitical in its origin. This conception, I argue, remains embedded in a standard secularization framework, despite Habermas’ claim to offer a new account of secularization. This approach betrays the complex reality of the political constitution of religion and the religious constitution of politics, as demonstrated by the current debate about marriage rights in the USA. In mischaracterizing the inherently public and political dimensions of religion, Habermas undermines the effectiveness of his normative framework.

Levin on Judaism and the Same-Sex Marriage Debate

While procrastinating about grading, I scrolled through today’s twitter feed (yes,  you too can follow my not-particularly exciting twitter feed) and found a extremely thoughtful op-ed by Hillel Y. Levin (U. Georgia Law School) in Tablet Magazine titled “Stay Out of It.”   In the piece, Levin criticizes recent statements from prominent Orthodox Jewish institutions opposing same-sex marriage.  Much of Levin’s criticism tracks some of the larger debates over whether there is a role for religious argumentation in the public sphere – debates frequently associated with John Rawls’s seminal article “The Idea of Public Reason Revisited.”

But Levin also presses on another reason why Orthodox Jews should be particularly sympathetic to same-sex marriage, which emphasizes the minority status of both the Jewish and LGBT communities.  Here’s an excerpt I found particularly noteworthy:

Unlike our Christian friends and neighbors, Jews grow up with our minority status deeply ingrained and without the instinctive expectation that our religious traditions and beliefs will naturally be reflected in the broader law and culture. As a minority within a minority, Orthodox Jews recognize that we reap the benefits of pluralism, tolerance, and accommodation. After all, if religious beliefs in this country were to orient secular law, we would find ourselves deeply disappointed and possibly threatened, just as we historically have in every other diaspora country.

Simson on Same-Sex Marriage and the Establishment Clause

Gary J. Simson (Mercer University School of Law) has posted Religion by Any Other Name? Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause. The abstract follows.

 This article considers whether laws prohibiting same-sex marriage should be found to violate the Establishment Clause. After explaining the nonendorsement principle that the Supreme Court has recognized as central to the clause, the article discusses the limited case law and commentary that explicitly address the constitutionality of same-sex marriage prohibitions under the Establishment Clause. It then examines the various reasons that opponents of same-sex marriage have offered in support of a ban and concludes that those reasons provide strikingly little justification for laws banning same-sex marriage.

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The Political Relevance of Religious Leaders

The New York Times is reporting that President Obama made fairly significant efforts to placate various religious leaders almost immediately after he announced last week that he now supports same-sex marriage (see this post by my colleague, Mark, in which the President explained that his position on same-sex marriage was informed by his Christian faith).  One of the people whom the President contacted expressed concerns that this policy shift might have implications for religious liberty.  The President is reported to have responded: “Absolutely not.  That’s not where we’re going, and that’s not what I want.”

What is most interesting is not the wide range of reactions that the President received from religious leaders, all of whom are otherwise aligned with the President politically, but that the President believed it to be crucial as a political matter to reach out to so many religious figures only hours after he made the announcement.  That alacrity speaks to the continuing political importance of these religious communities, whether for the right or the left.

The President, Faith, and Same-Sex Marriage

An interesting point that may be overlooked in President Obama’s announcement yesterday that he supports same-sex marriage. According to the President, his faith as a Christian helped lead him to this position. Referring to his wife, First Lady Michelle Obama, he said:

This is something that, you know, we’ve talked about over the years and she, you know, she feels the same way, she feels the same way that I do. And that is that, in the end the values that I care most deeply about and she cares most deeply about is how we treat other people and, I, you know, we are both practicing Christians and obviously this position may be considered to put us at odds with the views of others.

But, you know, when we think about our faith, the thing at root that we think about is, not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know, treat others the way you would want to be treated. And I think that’s what we try to impart to our kids and that’s what motivates me as president and I figure the most consistent I can be in being true to those precepts, the better I’ll be as a as a dad and a husband and hopefully the better I’ll be as president.

Of course, as the President suggested, not everyone agrees with his assessment of what Christianity requires in this respect — the US Conference of Catholic Bishops, for example. Still, in stating that his religious faith helped determine his position, the President is well within the American tradition of political leaders who explain their policies in religious terms.