Tag Archives: Same-sex Marriage

Prothero, “Why Liberals Win the Culture Wars (Even When They Lose Elections)”

In January, HarperCollins Publishers will release “Why Liberals Win the Culture Wars (Even When They Lose Elections): The Battles That Define America from Jefferson’s Heresies to Gay Marriage,” by Stephen Prothero (Boston University). The publisher’s description follows: 

In this timely, carefully reasoned social history of the United States, the New York Times bestselling author of Religious Literacy and God Is Not One places today’s heated culture wars within the context of a centuries-long struggle of right versus left and religious versus secular to reveal how, ultimately, liberals always win.

Though they may seem to be dividing the country irreparably, today’s heated cultural and political battles between right and left, Progressives and Tea Party, religious and secular are far from unprecedented. In this engaging and important work, Stephen Prothero reframes the current debate, viewing it as the latest in a number of flashpoints that have shaped our national identity. Prothero takes us on a lively tour through time, bringing into focus the election of 1800, which pitted Calvinists and Federalists against Jeffersonians and “infidels;” the Protestants’ campaign against Catholics in the mid-nineteenth century; the anti-Mormon crusade of the Victorian era; the fundamentalist-modernist debates of the 1920s; the culture wars of the 1980s and 1990s; and the current crusade against Islam.

As Prothero makes clear, our culture wars have always been religious wars, progressing through the same stages of conservative reaction to liberal victory that eventually benefit all Americans. Drawing on his impressive depth of knowledge and detailed research, he explains how competing religious beliefs have continually molded our political, economic, and sociological discourse and reveals how the conflicts which separate us today, like those that came before, are actually the byproduct of our struggle to come to terms with inclusiveness and ideals of “Americanness.” To explore these battles, he reminds us, is to look into the soul of America—and perhaps find essential answers to the questions that beset us.

In the mail: Witte’s “Western Case for Monogamy Over Polygamy”

I was pleased to receive Professor John Witte’s new volume, released earlier this year, The Western Case for Monogamy Over PolygamyWitte, Monogamy and Polygamy, in which, with at least half an eye cocked at the coming legal contests over polygamous marriage, John explores the following questions:

What is the Western tradition’s case for monogamy over polygamy, and is that case still convincing in a post-modern and globalized world? Are there sufficiently compelling reasons to relax Western laws against polygamy, and is this a desirable policy given the global trends away from polygamy and given the social, economic, and psychological conditions that often attend its practice? Or, are there sufficiently compelling reasons, reconstructed in part from the tradition, to maintain and even strengthen these anti-polygamy measures, in part as an effort to hasten the global demise of this practice?

I’ve only had a chance to glance at the book but from that quick scan, it appears that the primary justifications advanced in the book as a historical matter for monogamy over polygamy relate to “joint parental investment in children” and ensuring “that men and women are treated with equal dignity and respect within the domestic sphere,” the latter logic of which, the book claims, “applies to dyadic same-sex couples, who have gained increasing rights in the West in recent years, including the right to marry and to parent in some places.”

The book is immensely and richly detailed and comprehensive, with chapters including “From Polygamy to Monogamy in Judaism,” “The Case for Monogamy Over Polygamy in the Church Fathers,” “Polygamy in the Laws of State and Church in the First Millennium,” “Polygamous Experiments in Early Protestantism,” and “The Liberal Enlightenment Case Against Polygamy.”

Garnett, Inazu, and McConnell on FADA and Religious Nonprofits

very interesting comment authored jointly by Rick Garnett, John Inazu, and Michael McConnell on the recently introduced First Amendment Defense Act. A bit:

Today, tens of thousands of religious organizations, and tens of millions of Americans, continue to believe and teach that the proper understanding of marriage is a union of one man and one woman. But they do far more than believe and teach this and other views.

They also give food, clothing, shelter, counsel, and comfort to millions of Americans in need. They offer some of the most important and desperately needed health, educational, and social services in the country. And they provide billions of dollars and thousands of full-time workers for international relief aid that serves vulnerable migrants, refugees, and persecuted minorities. The work of religious organizations has long been and continues to be central both to religious believers’ lives and to the welfare of others. Our communities—and, indeed, communities around the globe—would be much worse off without these organizations and their faith-informed good works.

Despite the crucial role that religious organizations and individuals have long played in our country, some voices now suggest that they and their work are somehow tainted because of their beliefs about marriage and sexuality. Some argue that the time has come to push religious believers out of the public square and confine them to the quiet, private realm of personal prayer and worship. This despite the Supreme Court’s recent decision in Obergefell v. Hodges, which not only required states to legally recognize same-sex marriages but also said, “the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”

Nonetheless, because of their traditional views on human sexuality, religious organizations have already been threatened with heavy-handed government action….

Some members of Congress have now introduced the First Amendment Defense Act (FADA) in an effort to ensure that overheated rhetoric and political opportunism do not endanger the important work of faith-based organizations. The core of FADA would require the federal government to honor its longstanding commitments to treat all such organizations with an even hand. It would prevent federal officials from attempting to strip tax-exempt status, from denying equal access to federal facilities and entitlements, or from taking adverse actions related to licensing or accreditation….

We understand that new versions will address many or all of these issues. We think the best approach is to tailor FADA to the core area of concern: religious nonprofits. That focus would serve the cause of religious freedom by making it more likely that this important legislation can move forward.

One thought that has occurred to me on the issue of “tax exemption” of nonprofit institutions is that the entire discussion seems askew. It generally begins from the premise that the government can and should be able to tax anyone and anything that it pleases. The tax base is limitless. Amenability to taxation, however, ought not to be the default posture, as if the government simply gets to decide at its pleasure and election whom and what it wishes to tax. Income taxation only follows from the fact of income generation, and though nonprofits generate income they do not distribute it to individuals for private use but spend it in ways that promote public functions and purposes. Nonprofit actors are not appropriate objects of this kind of taxation at all. Consider, for example, the way in which the Connecticut Supreme Court in an 1899 decision discussed Yale University’s tax exempt status (not an income tax decision, of course):

The non-taxation of public buildings is not the exception but the rule. The corporations, whether municipal or private, which own and are by law charged with the maintenance of such untaxed buildings, are not the recipients of special privileges, in any sense obnoxious to the law. The seats of government, State or municipal, highways, parks, churches, public school-houses, colleges, have never been within the range of taxation; they cannot be exceptions from a rule in which they were never included.

Yale University v. Town of New Haven, 42 A. 87, 91 (1899). These institutions are, as the authors of the piece put it, actors within “civil society” that should in general not be touched by the government’s taxing power. Moreover, a government decision not to tax is emphatically not the same as a government decision to grant money or subsidize. We use the language of “exemption” when we speak of the taxable status of nonprofits, but it would be better instead to think of their nontaxable status as marking a boundary of the government’s power to tax.

[Update: I’ve amended some things in the post for clarity.]

Greve on “The Bob Jones Rule”

I was going to post on one particular exchange between Solicitor General Verrilli and Justice Alito in yesterday’s oral argument in the same-sex marriage case, but Professor Michael Greve’s post is a better read than what I can come up with. A bit:

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

Solicitor General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that.

That answer is about as straightforward and committal as you’ll see from an experienced lawyer. It’s curious because the Solicitor General had excellent reasons to deny the point and to deflect the question. His task was to assuage worries about what the Court is being asked to do here and to script the justices’ forthcoming press release (formally known as “the opinion for the Court”): that’s not what this means. And he had a million ways of making reassuring noises. It’s not some complicated legal case, for Pete’s sake: all Mr. Verrilli needed was to argle-bargle for the remaining five minutes of friendly colloquy about First Amendment values, competing dignities, the arc of history, and the meaning of life. In short, Verrilli made the concession not because he had to; he volunteered it. Why?

Because if the tax exemption jazz becomes “an issue,” it’s decided the minute gay marriage becomes the constitutional baseline. Because everyone knows that. Because the LBGT folks already have those complaints and briefs in their drawers, to be filed (almost “certainly”) on July 1.  And because DoJ and the IRS and OCR, in their last remaining eighteen months in office, are in a hurry to roll over to their constituencies and to hammer the hold-outs, in meticulous observance of the law. A hallmark of this administration. Or maybe they’ll hand out waivers.

I don’t deny that” says “dare me. It’s not going to hurt me in this case, and I’ll plant a flag for the next cases.” Mr. Verrilli could have coasted; instead, he waited for his opening to push further. A heck of a lawyer, at his considerable best.

DeGirolami on Standing and Justiciability in the Same-Sex Marriage Cases

I have a short piece over at Commonweal on the issues of standing and justiciability in United States v. Windsor and Hollingsworth v. Perry. Here’s a little bit:

Yet the question of relevance persists: Even if lawyers and judges pay attention to standing, why should the public care about it, particularly when matters of equality, freedom, and civil rights are jostling for the limelight?

First, because less is more. The Supreme Court wields its power within the constitutional structure only as long as it also retains a firm sense of the limits of that power. When it exceeds those limits, it disrupts the constitutional order and threatens its own authority. As always, Tocqueville saw this clearly:

The political power which the Americans have intrusted to their courts of justice is therefore immense, but the evils of this power are considerably diminished by the obligation which has been imposed of attacking the laws through the courts of justice alone. If the judge had been empowered to contest the laws on the ground of theoretical generalities, if he had been enabled to open an attack or to pass a censure on the legislator, he would have played a prominent part in the political sphere; and as the champion or the antagonist of a party, he would have arrayed the hostile passions of the nation in the conflict.

Or, as Justice Antonin Scalia put it in his dissent in the DOMA case, a free-floating power to say what the law is would be “an assertion of judicial supremacy over the people’s representatives in Congress and the executive”—an unsustainable exercise of judicial force that risks destroying the constitutional separation of powers.

Second, it is we who have the primary duty to make the law. We are given that duty by the federal and state constitutions, each of which provides representative mechanisms for us to discharge our duty. But the duty remains ours, not the Supreme Court’s. Constitutions are collections of entrenched choices made by the people to obligate not only their representatives and officials, but also themselves. Justice Kennedy’s dissent in the Proposition 8 case likewise notes that California’s popular initiative system represents a choice by the people of the state about where to vest law-making authority. A people that has no time for justiciability is more likely to cede its law-making powers and duties. Eventually, it will not even remember what power it has surrendered. It will then have the judges it deserves.

Gay Wedding Cakes and Liberalism

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.

Report: As Cardinal, Pope Supported Civil Unions As Alternative to Same-Sex Marriage

This will cause a stir. The New York Times reports that, in a private meeting with bishops in 2010, then-Cardinal Jorge Mario Bergoglio endorsed the idea of civil unions for gay couples as an alternative to same-sex marriage.

The suggestion came in the context of debate over legalizing same-sex marriage in Argentina. Although Cardinal Bergoglio vehemently and publicly opposed the law, the Times reports, at a private meeting of the Catholic bishops conference he supported civil unions as a compromise–“the lesser of two evils,” according to the cardinal’s authorized biographer. According to the Times, this suggestion “inflamed” the meeting, and the conference voted down the suggestion. Argentina eventually legalized same-sex marriage.

The Times argues that “Cardinal Bergoglio’s readiness to reach out across the ideological spectrum and acknowledge civil unions for gay people could raise expectations that he would do the same as pope,” but concedes that Pope Francis may have less need, and ability, to compromise on the issue. Anyway, in political terms, civil unions seems to be an idea whose time has passed–it’s doubtful that gay rights supporters would settle for anything less than marriage at this point.

Pierceson, “Same-Sex Marriage in the United States”

This month, Rowman and Littlefield Publishers published Same-Sex Marriage in the United States: The Road to the Supreme Court by Jason Pierceson (University of Illinois, Springfield). The publisher’s description follows.Same-Sex Marriage in the United States

Same-sex marriage has become one of the defining social issues in contemporary U.S. politics. State court decisions finding in favor of same-sex relationship equality claims have been central to the issue’s ascent from nowhere to near the top of the national political agenda. Same Sex Marriage in the United States tells the story of the legal and cultural shift, its backlash, and how it has evolved over the past 15 years.

There is a clear story of jurisprudential evolution with regards to same-sex marriage from Hawaii, through Vermont, Massachusetts, New Jersey, California, Connecticut, and, remarkably, Iowa in 2009. This book aids in a classroom examination of the legal, political, and social developments surrounding the issue of same-sex marriage in the United States. While books about same-sex marriage have proliferated in recent years, few, if any, have provided a clear and comprehensive account of the litigation for same-sex marriage, and its successes and failures, as this book does.

Brownson, “Bible, Gender, Sexuality”

Bible, Gender, SexualityThis month, Wm. B. Eerdmans Publishing Company published Bible, Gender, Sexuality by James V. Bownson (Western Theological Seminary). The publisher’s description follows.

In Bible, Gender, Sexuality James Brownson argues that Christians should reconsider whether or not the biblical strictures against same-sex relations as defined in the ancient world should apply to contemporary, committed same-sex relationships. Presenting two sides in the debate — “traditionalist” and “revisionist” — Brownson carefully analyzes each of the seven main texts that appear to address intimate same-sex relations. In the process, he explores key concepts that inform our understanding of the biblical texts, including patriarchy, complementarity, purity and impurity, honor and shame. Central to his argument is the need to uncover the moral logic behind the biblical text. Written in order to serve and inform the ongoing debate in many denominations over the questions of homosexuality, Brownson’s in-depth study will prove a useful resource for Christians who want to form a considered opinion on this important issue.