In the name of “marriage equality” and
“non-discrimination,” liberty—especially religious liberty and the
liberty of conscience—and genuine equality are undermined.
It was only yesterday, was it not, that we were
being assured that the redefinition of marriage to include same-sex
partnerships would have no impact on persons and institutions that hold
to the traditional view of marriage as a conjugal union? Such persons
and institutions would simply be untouched by the change. It won’t
affect your marriage or your life, we were told, if the law recognizes
Henry and Herman or Sally and Sheila as “married.”
Those offering these assurances were also claiming that the
redefinition of marriage would have no impact on the public
understanding of marriage as a monogamous and sexually exclusive
partnership. No one, they insisted, wanted to alter those traditional
marital norms. On the contrary, the redefinition of marriage would
promote and spread those norms more broadly.
When some of us warned that all of this was nonsense, and pointed out
the myriad ways that Catholics, Evangelicals, Mormons, Eastern Orthodox
Christians, Orthodox Jews, Muslims, and others would be affected, and
their opportunities and liberties restricted, the proponents of marriage
redefinition accused us of “fearmongering.” When we observed that
reducing marriage to a merely emotional union (which is what happens
when sexual reproductive complementarity is banished from the
definition) removes all principled grounds for understanding marriage as
a sexually exclusive and faithful union of two persons, and not an
“open” partnership or a relationship of three or more persons in a
polyamorous sexual ensemble, we were charged with invalid slippery-slope
reasoning. Remember?
No one, they assured us, would require Catholic or other foster care
and adoption services to place children in same-sex headed households.
No one, they said, would require religiously affiliated schools and
social-service agencies to treat same-sex partners as spouses, or impose
penalties or disabilities on those that dissent. No one would be fired
from his or her job (or suffer employment discrimination) for voicing
support for conjugal marriage or criticizing same-sex sexual conduct and
relationships. And no one was proposing to recognize polyamorous
relationships or normalize “open marriages,” nor would redefinition
undermine the norms of sexual exclusivity and monogamy in theory or
practice.
That was then; this is now.
I must say, though, that I still can’t fathom why anybody believed
any of it—even then. The whole argument was and is that the idea of
marriage as the union of husband and wife lacks a rational basis and
amounts to nothing more than “bigotry.” Therefore, no reasonable person
of goodwill can dissent from the liberal position on sex and marriage,
any more than a reasonable person of goodwill could support racial
segregation and subordination. And this, because marriage, according to
the redefiners, consists principally of the emotional union of people
committed to mutual affection and care. Any distinctions beyond this one
they condemn as baseless.
Since most liberals and even some conservatives, it seems, apparently
have no understanding at all of the conjugal conception of marriage as a
one-flesh union—not even enough of a grasp to consciously consider and
reject it—they uncritically conceive marriage as sexual-romantic
domestic partnership, as if it just couldn’t possibly be anything else.
This is despite the fact that the conjugal conception has historically
been embodied in our marriage laws, and explains their content (not just
the requirement of spousal sexual complementarity, but also rules
concerning consummation and annulability, norms of monogamy and sexual
exclusivity, and the pledge of permanence of commitment) in ways that
the sexual-romantic domestic partnership conception simply cannot.
Still, having adopted the sexual-romantic domestic partnership idea, and
seeing no alternative possible conception of marriage, they assume—and
it is just that, an assumption, and a gratuitous one—that no actual
reason exists for regarding sexual reproductive complementarity as
integral to marriage. After all, two men or two women can have a
romantic interest in each other, live together in a sexual partnership,
care for each other, and so forth. So why can’t they be married? Those
who think otherwise, having no rational basis, discriminate invidiously.
By the same token, if two men or two women can be married, why can’t
three or more people, irrespective of sex, in polyamorous “triads,”
“quadrads,” etc.? Since no reason supports the idea of marriage as a
male-female union or a partnership of two persons and not more, the
motive of those insisting on these other “traditional” norms must also
be a dark and irrational one.
Thus, advocates of redefinition are increasingly open in saying that
they do not see these disputes about sex and marriage as honest
disagreements among reasonable people of goodwill. They are, rather,
battles between the forces of reason, enlightenment, and equality—those
who would “expand the circle of inclusion”—on one side, and those of
ignorance, bigotry, and discrimination—those who would exclude people
out of “animus”—on the other. The “excluders” are to be treated just as
racists are treated—since they are the equivalent of racists. Of course,
we (in the United States, at least) don’t put racists in jail for
expressing their opinions—we respect the First Amendment; but we don’t
hesitate to stigmatize them and impose various forms of social and even
civil disability upon them and their institutions. In the name of
“marriage equality” and “non-discrimination,” liberty—especially
religious liberty and the liberty of conscience—and genuine equality are
undermined.
The fundamental error made by some supporters of conjugal marriage
was and is, I believe, to imagine that a grand bargain could be struck
with their opponents: “We will accept the legal redefinition of
marriage; you will respect our right to act on our consciences without
penalty, discrimination, or civil disabilities of any type. Same-sex
partners will get marriage licenses, but no one will be forced for any
reason to recognize those marriages or suffer discrimination or
disabilities for declining to recognize them.” There was never any hope of such a bargain being accepted. Perhaps parts of such a bargain would be accepted by liberal forces temporarily
for strategic or tactical reasons, as part of the political project of
getting marriage redefined; but guarantees of religious liberty and
non-discrimination for people who cannot in conscience accept same-sex
marriage could then be eroded and eventually removed. After all, “full
equality” requires that no quarter be given to the “bigots” who want to
engage in “discrimination” (people with a “separate but equal” mindset)
in the name of their retrograde religious beliefs. “Dignitarian” harm
must be opposed as resolutely as more palpable forms of harm.
As legal scholar Robert Vischer has observed, “The tension between
religious liberty and gay rights is a thorny problem that will continue
to crop up in our policy debates for the foreseeable future. Dismissing
religious liberty concerns as the progeny of a ‘separate but equal’
mindset does not bode well for the future course of those debates.” But
there is, in my opinion, no chance—no chance—of persuading
champions of sexual liberation (and it should be clear by now that this
is the cause they serve), that they should respect, or permit the law to
respect, the conscience rights of those with whom they disagree. Look
at it from their point of view: Why should we permit “full equality” to
be trumped by bigotry? Why should we respect religions and religious
institutions that are “incubators of homophobia”? Bigotry, religiously
based or not, must be smashed and eradicated. The law should certainly
not give it recognition or lend it any standing or dignity.
The lesson, it seems to me, for those of us who believe that the
conjugal conception of marriage is true and good, and who wish to
protect the rights of our faithful and of our institutions to honor that
belief in carrying out their vocations and missions, is that there is
no alternative to winning the battle in the public square over the legal
definition of marriage. The “grand bargain” is an illusion we should
dismiss from our minds.
Of course, with sexual liberalism now so powerfully entrenched in the
established institutions of the elite sector of our culture (and, let
us not kid ourselves, fully embraced by the President of the United
States and the leadership of the Democratic Party), some view the
defense of marriage as a lost cause. I think that is another mistake—one
that sexual liberals have every reason to encourage their opponents to
make, and ample resources to promote. We’ve all heard the argument (or
taunt): “The acceptance of same-sex marriage on a national scale is
inevitable. It’s a done deal. You had better get on the right side of
history, lest you be remembered in the company of Orval Faubus.”
Of course, this is what we were told about a “woman’s right” to
abortion in the mid-’70s. But it didn’t turn out that way. A greater
percentage of Americans are pro-life today than in the 1970s, and young
people are more pro-life than people of their parents’ generation. The
idea promoted by the abortion lobby when their cause seemed to be a
juggernaut—that “the American people will inevitably accept abortion as a
matter of women’s rights and social hygiene”—proved spectacularly
false.
Or, speaking of “social hygiene,” think back to the 1920s and ’30s
when eugenics was embraced by the elite institutions of American
society—from the wealthy philanthropic foundations, to the mainline
Protestant denominations, to the Supreme Court of the United States.
Affluent, sophisticated, “right-minded” people were all on board with
the eugenics program. It, too, seemed like a juggernaut. Only those
retrograde Catholics, joined by some other backward religious folk,
resisted; and the thought was that the back of their resistance would
soon be broken by the sheer rationality of the eugenics idea.
The eugenicists were certain that their adversaries were on “the wrong
side of history.” The full acceptance of eugenics was “inevitable.” But,
of course, things didn’t quite turn out that way.
Note that my point here is not to say or imply that
redefining marriage is morally just like abortion or eugenics. There are
obvious and important differences. My point is about the claim by
progressives and some others in each case that the triumph of the cause
was “inevitable,” and that those who declined to go along were “against
progress” and had placed themselves on the “wrong side of history.”
Does that mean that the reverse is true, that the conjugal conception
of marriage will inevitably prevail in law and culture? No. There is
nothing inevitable in this domain. As the left-wing—but
anti-Hegelian—Brazilian legal theorist Roberto Unger used to preach to
us in courses at Harvard Law School, the future will be the fruit of
human deliberation, judgment, and choice; it is not subject to fixed
laws of history and forces of social determinism. As the Marxists
learned the hard way, the reality of human freedom is the permanent
foiler of “inevitability” theses. Same-sex marriage and the assaults on
liberty and equality that follow in its wake are “inevitable” only if
defenders of marriage make their adversaries’ prophecies self-fulfilling
ones, by buying into them.
Robert P. George is McCormick Professor of Jurisprudence at Princeton University. An earlier version of this essay appeared on Mirror of Justice.
