Reading The New York Times over breakfast, as I do, is an unhealthy habit. Even if I skip the inanities of the editorial page, reading all the awful news first thing in the morning puts me in a gloomy state of mind that takes hours to dispel. This gets worse as I open the computer and turn to the daily bulletin on religion and conflict of the Tony Blair Faith Foundation which carefully records all the horrible atrocities of Islamists from ISIS to Boko Haram. If after this the phone rings, I’m ready to hallucinate that I’m in Saudi Arabia, our trusted ally in the Middle East, and that the Department for the Promotion of Virtue and the Suppression of Vice is ordering me to come in to be flogged for impure thoughts (I don’t trust the Obama administration to protect me).
Thus it is a relief to comment on an article, with whose analysis of the situation I mostly agree, though I can think of some more optimistic scenarios. The American Interest, a Washington publication which kindly lets me use its website to send out this blog, in its May-June 2016 issue has published an article by Michael Needham, “Religious Liberty after Obergefell”. The reference is to Obergefell v. Hodges, the case in which the Supreme Court decided, in a vote of 5 to 4, that state laws banning same-sex marriage were unconstitutional. Note that this decision was made before Antonin Scalia’s death and thus the disappearance of the most reliable (and, incidentally, witty) conservative justice. Needham heads Heritage Action for America, a conservative organization. I don’t know him, but I assume that I don’t share his views on homosexuality in general and same-sex marriage in particular, which no doubt accounts for my less pessimistic perspective on this matter.
I don’t usually use this blog to promote my own religious or political views. In this instance, however, a measure of disclosure seems appropriate. I am a Lutheran, though rather on the heterodox side. But I tend to believe in making a sharp difference between the two realms of Law and Gospel: Marriage falls under the former realm, which means that it is not a sacrament, but a historically relative institution to be prudentially assessed. Part of this prudence is a conservative skepticism about radical change (as Heimito von Doderer, an Austrian writer put it, conservatism is the hunch that one’s old aunts had a point after all). For this reason I’m a registered Republican; I live in Brookline, Massachusetts, where the party committee meets annually in a phone booth. As to what is called “traditional” marriage (the “tradition” was invented by the bourgeoisie around the seventeenth century CE)—man and wife with their children living in a separate household away from wider kin—I think it is probably the best arrangement for raising happy and self-assured children.
Needham is probably right that Obergefell is a landmark decision with far-reaching consequences—from his viewpoint, very bad, and things could get worse. A lot depends of course on the next few appointments of new justices, but the Supreme Court is unlikely to reverse a major decision very quickly, and both lower federal courts and state calls will have to follow its lead. The Republican leadership and what Needham calls its “consultant class” cannot be relied upon to continue its conservative line on marriage, a topic it cares about little, unless it is useful to mobilize one specific constituency. John Kasich, the governor of Ohio and for a while the bright hope of the “moderate” stop-Trump campaign (though probably now overtaken by Ted Cruz), expressed relief that the same-sex issue was now “off the table”, allowing Republicans “to move on” to more serious issues. The same can be said of big business, for long a pillar of the Republican party. Major corporations threatened boycotts of those states when Indiana and North Carolina were about to pass legislation expanding protection (“exemptions”) for people refusing services or participation in actions violating their religious convictions. The Religious Freedom Restoration Act (RFRA) was passed in 1993, by large majorities in both houses of Congress and signed into law by President Bill Clinton. It set up precisely such protection.
Things have changed a lot since then. RFRA might itself be ruled to be unconstitutional. The civil rights analogy is now frequently cited to insist that basic human rights trump First Amendment rights. Opposition to same-sex marriage is like racist opposition to interracial marriage, and to be treated accordingly. The tax-exemption of institutions, including religious ones, could be threatened for resistance to legally imposed sexual orthodoxy. Thus Catholic Charities in Massachusetts was forced to stop its adoption activity because of refusing to place children in same-sex households. Even worse: The newly invented crime of “hate speech” could be used as a weapon to stop any public statements criticizing homosexuality. Thus a state agency in Houston, Texas, wanted to issue subpoenas for sermons against homosexuality by clergy (this move was withdrawn after a storm of protests—perhaps Texas is indeed the last bastion of conservatism). The final phase of this development would be that conservatives could only express their views of sex, gender and marriage by whispering in their homes or (maybe) at worship in church.
I don’t disagree with Needham’s analysis of Obergefell’s likely consequences, including the effect on religious freedom, even if my different view of homosexuality makes it hard for me to regard same-sex marriage as a doomsday scenario for Western civilization. I also agree that the present ascendancy of gay ideology will not be quickly reversed and that an extended period of public education and advocacy will be needed before those of us (not by any means all conservatives) who are in favor of an ideal of heterosexual monogamy, have to huddle together in underground wedding chapels. Needham’s suggestion to stop relying on RFRA and instead advocate FADA (First Amendment Defense Act) makes sense, because it lessens the need for courts to decide which “exemptions” override other rights and which don’t. But before I outline a politically more promising middle-ground position on south-of-the-navel issues, I’ll briefly ask why sexuality has such a central place in the conflict between conservatives and progressives.
The linkage of progressive politics, secularism and sexual liberation has a long history. Jacobins, the most radical faction of the French Revolution, wanted to hang the last aristocrat with the entrails of the last priest. The infamous Marquis de Sade was residing in a lunatic asylum when he penned his last work, a tract entitled “One More Effort and You will be True Republicans”. That effort was for a law that every citizen would have a right of free access to the body of every other citizen. The end of sexual frustration, imposed by priests serving the ancien regime, would then be the final triumph of the egalitarian republic. Thus it was a good choice of symbolism when the Jacobins, in a solemn desecration of the Church of the Madeleine, installed a prostitute (une fille de joie, “daughter of joy”) to represent the goddess of reason. I think this anticipation of the spirit of Woodstock helps explain the sexual obsession of the progressive mind. To put this linkage into less mythopoetic terms: If you give a chocolate addict a free pass to a candy store, and then take it away again, the result will be seething hatred against those deemed responsible. There really was a sexual revolution in the 1960s and 1970s in America, the most religious country among Western democracies. Survey data show a high association of religion with repressive morality, especially among younger Americans (who more than their elders fully enjoy the free candy, without resorting to little blue pills).
If one wants to change or at least modify the presently powerful progressive ideology in matters of sexuality and gender identity, one should have a clear picture of the empirical distribution of values in the society, and thus a realistic assessment of one’s chances of success. America is still a strongly religious society, especially if one compares it with Europe (the most relevant comparison). Evangelicals are about 30% of the population, Roman Catholics about 22%; of course these statistics do not tell us how many of these people believe in let alone live by the teachings of their respective communities of value. But together they constitute a considerable reservoir of Americans relatively free of Woodstock nostalgia. Add to this religiously conservative Jews and Muslims, and many others still haunted by the raised fingers of old aunts. The United States is still a democracy. Eventually, numbers count and even affect the nine sages in their priestly robes. Still, it is not realistic (even if one wanted to, which I don’t) to lock the candy store and throw the key away.
But I think some lessons can be drawn from some recent changes in public opinion. One, of course, is the change in public attitudes toward homosexuality and same-sex marriage. Apart from what is suggested by my candy-store theory, there are other factors: gay-friendly depiction in the media, legal decisions and government actions (Hans Kelsen’s famous “normative power of facticity”), and the diffuse effect of personal experience with gay people who seem to be decent and normal (sex aside). America has become a more tolerant place. There have been remarkable changes in attitudes toward Jews and African-Americans. Even polite anti-Semitism has become unacceptable in groups (like the WASP country-club set) where it was prevalent as recently as the 1950s. The collective memory of World War II and the Holocaust are important, and so are the media, legal and political actions, and many informal personal contacts. In a recent survey respondents were asked which religious group, other than their own, they liked most: Jews were first on the list. (In case you wonder, atheists, Muslims and Mormons were at the bottom.) Irving Kristol, a few years ago, nicely described this development: “We used to worry that Gentiles wanted to kill our children; now we worry that they want to marry them.” (If one worries about the demography of the Jewish community, the worry is not groundless.) These changes favor progressive beliefs in progress.
Two other changes seem to go in opposite directions: On abortion, an increase in pro-life attitudes, especially among young people. And on the death penalty, an increase in opposition (also in the same demographic). This is not the place to speculate about the pertinent factors. But, so as not leave you in terrible suspense, let me give you two hunches: On abortion, the availability of ultra-sound imagery, making it hard to deny the humanity of embryos even early in the pregnancy, and (related to this) the repulsive refusal of most pro-choice activists to disallow abortions at any stage of pregnancy. On the death penalty, the availability of DNA testing, leading ever more frequently to findings of innocence of convicted murderers (either on death row or, worse, already executed).
Here then are my recommendations on a strategic platform for those not ready to worship at the shrine of the fille de joie (I happen to agree with the platform, but more important I think it has a political chance in the US—no guarantee):
1. Until very recently homosexuals (especially males) were savagely persecuted; the claim of historical victimhood should be acknowledged repeatedly. My erotic interests have been incurably fixated on women, so I paid little attention to homosexuality until one profoundly shocking event: It took place during my first full-time teaching job in a town in North Carolina. I was a spectator at the much reported trial of a middle-aged married member of a prominent local family, convicted of the crime of “sodomy” with a young man (not a child, no violence involved). I was in court when the accused was sentenced to prison for twenty to fifty years. I happened to see the face of his mother during the sentencing. A few years later I was teaching at the New School for Social Research in New York. My office was a few blocks from the famous Stonewall Inn, a gay hangout whose patrons were alternatively arrested or blackmailed by the police. During one such raid in 1969 one patron (never identified) shouted “enough!” The cops were beaten up and thrown out. I cheered, and followed the ensuing gay movement with sympathy—until much of it later turned ugly itself.
2. The gay movement began as the defense of an individual’s freedom to choose his or her personal lifestyle—that is, as liberation from what Freud had called “biology as destiny”. More recently, sexual identity is supposed to be determined at birth. I think that this is in imitation of the civil rights movement—one doesn’t choose the color of one’s skin. Ironically, biology is destiny once more: the movement now does not emphasize the individual’s freedom to choose sexual identity, but society’s acceptance of what he or she already is. In either case, the legal and political implications are similar, their legitimations differ. I don’t think we know scientifically how much sexual identity is chosen, how much given genetically. It seems likely to me that individuals differ in that respect. One can think through morally plausible policies without deciding how much nurture as against nature shapes sexual orientation
3. Many if not most contemporary societies, at various stages of economic development, are increasingly pluralistic in terms of religion. Unless one is willing and able to enforce a restored religious uniformity, one must search for what I call “formulas of peace”. Historically, there have been different ones. During some periods of the Caliphate of Cordoba, there was a relatively amicable conviviencia between Muslims, Jews and Christians, with Muslims in control of the state, Jews and Christians as “People of the Book” enjoying considerable religious, personal and economic rights. This may be a relatively benign form of an Islamic state, compared to other more oppressive ones, but unlikely to be acceptable in any democratic society. Then there was the formula of the Peace of Westphalia, which mercifully ended the murderous Thirty Years’ war between Catholics and Protestants. Under its formula the ruler determined the religion of the state; those who disagreed were free to emigrate. The formula is certainly preferable to being massacred or forcibly converted, but hard to apply when religious groups live on top of each other. I think that the only practical as well morally acceptable formula is some degree of separation between the state and religion. There are different forms of this: British, American, French, German, Dutch. In all of these, the state (de facto if not de jure) is religiously neutral and presides benevolently over the pluralistic cacophony. This presupposes a secular space in which people of different faiths can peacefully interact. Important point: Acceptance of the secular space (and a secular discourse to go with it, such as religiously neutral law) is not the same as secularism, which is the project of banning religion from public life. Put differently: The U.S. constitution is not a Jacobin manifesto.
4. Even under the aforementioned separation formula, there must be some shared values between all the communities or the society will either lapse into conflict or fall apart before outside aggression. In the current German debate over the integration of immigrants the concept of Leitkultur (“lead culture”) refers to such a shared value system. This has a clear implication: There must be the shared secular discourse, supported by all communities, albeit for different reasons. Thus the first lapidary sentence of the 1949 German (then West German) constitution—“the dignity of man is inviolate”—was and is understood by Christians in terms of man in the image of God. But it can and is being understood by people of another or no faith in terms of other conceptions of human dignity.
5. Same-sex couples, however morally admirable, are not the same as a man and a woman sharing a household with the children they have themselves produced. A denial of reality is never a good foundation for a viable institution. For this reason I would have preferred if the term “marriage” had been avoided to describe “domestic partnership” (French usage), which could imply the same rights and obligations. But my old preference would probably be politically unfeasible now, because the “domestic partners” would feel not just different but morally downgraded as against “married couples”. But I think there are other ways of solving this problem, such as limiting the state function to issuing a marriage license from whatever religious or secular ceremony the couple want to have afterward. I don’t have to speculate about other possibilities: That is why God created lawyers (right after he created composers of atonal music?).
6. This post has become excessively long. I would really like to stop here. But given the centrality of the abortion issue in the culture war, I must at least give a hint of where I would go with this: Both labels “pro-choice” and “pro-life” are obfuscations. A woman does not have the choice of strangling her month-old baby. Of course an embryo is “human life”, so was my appendix when it was removed when I was twelve (it was definitely not “canine life”, and the surgical procedure was not an abortion). We badly need here what Confucians call “a rectification of terms”—the term at issue here is not “life” but “person”. Is the abortion of an embryo an act of homicide? This is not an easily answered question, because the question touches on the greatest mystery of all: Just what is a person? When, in the nine-month pregnancy, can we assume that a person is present? I find it equally implausible to say “five minutes after conception” as to say “five minutes before birth”. When, then? I, for one, can only say that I don’t know. And I’m skeptical of anyone who claims certainty about this. In talking with either “pro-choice” or “pro-life” proponents one should begin by asking, “What month are we talking about?” If they come up with a definite answer, we should doubt it. And if they agree that we don’t know but must make a reasonably responsible decision, we can talk about available options. Of course this will not convince those whose faith dictates a certain reply. If the law is promulgated by a state that is religiously neutral, one cannot simply submit to the alleged certainty. One can respect the right to the free exercise of a faith whose certainty one questions.
This must have been the longest post I have written since I started this blog. Enough is enough. Let me conclude with an observation: When talking about these south-of-the-navel issues, it is very salutary to understand that, whatever else sexuality is, it is profoundly funny. It will soon be announced by the Israeli Department of Antiquities that in yet another cave near the Dead Sea yet another fragment of Biblical text has been discovered. It is from the passage in Genesis 2, which recounts the creation of the first woman from a rib taken from the first man. God brought the woman to meet the man whose helper she is supposed to be. (A scribe had written in the margin—“if only!”) The canonical text says, “The man and his wife were both naked, and they were not ashamed.” But the recently discovered text adds one sentence: “They looked at each other for a long moment, and then they could not stop laughing.”
Peter Berger will be traveling for the next few weeks. He will resume writing on May 15.