Over the past several years, there have been a number of reported incidents in the U.S. where a bakery has refused to make a wedding cake for a same-sex wedding. In the latest case, a bakery in Gresham, Oregon refused to bake a cake for a wedding between two women, citing religious objections. One of the aggrieved fiancées has filed a complaint with the state attorney general’s office, which is now investigating whether the bakery violated an Oregon statute prohibiting discrimination in public accommodations.
This incident illustrates a wider phenomenon—unwillingness to pursue liberal values when it comes to the politics of sexual orientation. By liberalism, I mean the strain of European political philosophy that arose in the eighteenth and nineteenth centuries partly as a reaction to the devastating religious wars of the sixteenth and seventeenth century, most particularly the Thirty Years’ War that killed eight million people in central Europe. Liberals like John Locke, Adam Smith, David Hume, and John Stuart Mill stressed individual rights, limited government, and freedoms of speech, press, religion, contract, and property as antidotes to such bloodshed. They aimed to allow people with fundamentally different world views to contribute jointly to the projects of government, order, and civil society with minimum friction. Liberalism is the philosophy at the heart of the enduring American constitutional order.
Alas, liberalism is losing out in the culture wars. The gay wedding cakes battles are representative of a wider disease that infects people in both camps—invoking the power of government to endorse and enforce one’s world view on matters of sexuality and identity. Rather than just saying, “I’ll take my business elsewhere,” the impulse is to call the attorney general’s office in support of one’s position, as though law and politics were the appropriate fora for deciding the morality of sexual identity and practice.
The predominant forces in both camps are pushing anti-liberal agendas. In 2004, the Virginia Legislature passed a statute invalidating private contracts between gay people if they replicated the incidences of marriage. Conservatives continue to resist political settlements on same-sex marriage that would shift marriage decisions from the state to individuals and private communities. On the other side, progressives are fighting to enshrine their views in marriage and antidiscrimination laws and school curricula. In the Chik-fil-A flap last summer, progressive politicians around the country threatened zoning prohibitions or other deployments of state power to fight the forces of “hatred and intolerance.”
Where are the liberals? Where are the people willing to say: “As much as possible, let’s not decide these questions in the arena of the state. Let’s let them play out in families, churches, religious communities, social networks, friendships, businesses, and private associations. Let’s resist the impulse to make these kinds of divisive moral and religious questions political questions. Let’s not fight another Thirty Years’ War.”
Let me try to preempt some likely objections with two concluding observations.
First, a liberal disposition cannot be confined to circumstances where one disapproves of someone else’s conduct but it causes no harm to others—because that’s an empty set. It’s child’s play for lawyers, philosophers, and economists to demonstrate that almost anything one person does affects other people. When the baker refuses to make the wedding cake, it imposes real distress, humiliation, and inconvenience on the person requesting the cake. Conversely, having to make the cake would impose real offense and moral indignity on the baker. Liberalism doesn’t depend on a view that one of the parties really isn’t hurt, any more than free speech depends on a view that words can never be hurtful. Liberalism is a disposition that says “the state must let pass these sorts of harm—they do not rise to the level of force and fraud where state intervention is justified.”
Second, to espouse liberalism isn’t to pretend that the state never has to make political judgments on issues of sexual orientation. Since the state runs the military, it must decide whether gay people can serve in the armed forces. Since the state regulates adoptions, it must decide whether gay people can adopt. And there are of course other examples. But the fact that it is sometimes unavoidable for the state to wade into these thorny issues does not justify the state wading in when it doesn’t have to. The great project of liberalism is to strive continually for resolutions that don’t involve the state deciding divisive issues of meaning and morality that require choosing between contending world views. This isn’t always possible, but it’s possible much more of the time than it happens.
Calling all liberals . . .
How Would Jesus Rule on Same-Sex Marriage?
As the U.S. Supreme Court prepares to rule on same-sex marriage, Christians on both sides of the issue continue to invoke Jesus in support of their position. Or, more precisely, they invoke a vision of ethics and morality (i.e., inclusivity vs. traditional moral values) that they associate with Christian teaching. But how would Jesus actually have responded if asked “how should the Supreme Court rule on same-sex marriage?”
That’s anachronistic, of course, but it’s the kind of question that “teachers of the law” routinely flung at Jesus, usually with the intention of entrapping or discrediting him. The legal elite of Jesus’ day peppered him with hot button legal and ethical questions like “should we pay taxes to Caesar” and “to whom do I owe neighborly duties?” Often, these questions involved marriage and sexuality: May a man divorce a woman for any and every reason? How should a woman caught in adultery be punished? If a woman marries seven different husbands in succession and then dies herself, which one is she married to in Heaven? It’s not hard to imagine CNN legal analyst Jeff Toobin cornering Jesus and asking him, “Hey Jesus, how about same-sex marriage?”
It would be presumptuous of me to say how Jesus would answer that question, so I won’t. But I will offer three observations from things Jesus actually said in response to similar questions.
First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective. On one side, we hear that marriage is about procreation and child rearing. On the other, that it’s about love and companionship. But Jesus did not understand marriage primarily in terms of its temporal or material effects. For Jesus, marriage was a spiritual representation of divine relationships. According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead. Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride. Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God. Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.
This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world. Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs. We’ve lost any sense of human institutions as good because of their correspondence to divinity. Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.” It’s safe to say that Jesus would have had a different take.
Second, and in some tension with my first observation, Jesus might have responded to a question about same-sex marriage by distinguishing between the spiritual ideal and pragmatic legal rules. That is what Jesus did on divorce. When asked whether a man should be allowed to divorce a woman for any and every reason, Jesus responded that Mosaic law allowed for divorce because of the hardness of people’s hearts, but that things weren’t that way from the beginning. Jesus was not advocating a change in the law, but a change in people’s hearts.
Christian thinkers have long debated the distinction between legal and spiritual marital norms. When Britain was liberalizing its divorce laws in the 1940s, my two favorite Christian writers, J.R.R. Tolkien and C.S. Lewis, took different views on whether Christians should advocate that secular legal institutions mirror the spiritual ideal. Tolkien opposed the divorce reforms on the grounds that the spiritual should inform the legal. Lewis argued for a pragmatic differentiation between the spiritual and the legal. In my view, Lewis was closer to the position staked by Jesus.
Finally, chances are that Jesus’ answer would go to issues far beyond the narrow question presented. This was almost invariably Jesus’ pattern when confronted with hot-button legal issues. He always found the question itself less important than the darkness it exposed. Thus, he turned the question about paying taxes to Caesar into condemnation of his questioners’ failure to honor God, the adultery penalty question into an indictment of his interlocutors’ self-righteousness, and the divorce question into an exposé of spiritual hardness. I shiver to think of how he might turn the same-sex marriage question back on us. All of us.
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Posted in CLR Forum Guest, Commentary, Daniel Crane
Tagged Christianity, Church and State, Marriage, Same-sex Marriage