We are now at the point where, I believe, American Catholics should accept state recognition of same-sex marriage simply because they are Americans.
Let’s be careful to observe that he is not saying that American Catholics should accept same-sex marriage per se, only state recognition of it. It’s a distinction with a meaningful difference. One may think drug use is immoral, but decline to support the drug war because for whatever prudential reasons, you believe it’s not worth fighting. Maybe this is what he means by this remark. I’m trying to be charitable in my interpretation.
But he didn’t say quite this. Bottum could have written, “We are now at the point where, I believe, American Catholics should accept state recognition of same-sex marriage, if only because they stand to lose more in this lost cause than they could possible gain.” It seems to me that this is what his essay more or less argues. Still, the more I think about it, the more I’m troubled by his unfortunate phrase: “simply because they are Americans.” It implies pretty strongly that to continue resisting SSM is unpatriotic.
I do not believe that, but if it is true, then as an orthodox (and Orthodox) Christian, I’ll accept the slur without shame, and any sanctions and opprobrium that may come with it. It won’t be the first time in history a believer has had to choose between serving the state and serving God. I pray that the choice is never put to me, but if I am ever forced to make that choice, I will always and everywhere choose God, without apology. I am a Christian first, and an American second.
And you? Better get this question straight in your head right now, before you are put to the test. Do you think I’m being alarmist? Read law professor Hadley Arkes’ contribution to the 1996 First Things symposium on “the judicial usurpation of politics.” The symposium was extremely controversial when it was published 17 years ago, causing some First Things board members to resign in protest over what they considered its intemperance. The gist of the symposium was that the courts had badly overreached to impose an elitist liberal cultural agenda, such that the entire American order was imperiled. Many of the magazine’s friends and fellow travelers felt that Father Neuhaus had staked far too radical a position — and it’s easy to see how they reached that conclusion.
It’s interesting to re-read the essays in light of events on the gay marriage front in the last decade. Here’s how Arkes’ essay begins:
We were taping, early in May, a program for public television dealing with “same-sex marriage.” Opposite me was a professor of law, openly gay, who had just written a book in favor of gay marriage. The question before us was whether the states would be obliged to honor the marriage of homosexual couples if the courts in Hawaii delivered to the country that unsolicited gift. After all, the states bore a residual authority to object, on moral grounds, to certain kinds of marriages—as in the case, for example, of incestuous unions. But with the same claims to residual authority, some states in the past had objected on moral grounds to interracial marriages. That ground of objection had been removed from the states as soon as the courts became clear that policies of that kind were in conflict with the deeper principles of the Constitution. The question then was whether the Supreme Court was about to do the same thing in relation to gay marriage with the decision, then pending, in Romer v. Evans: The case was not about gay marriage, but it could undercut the authority of a state to withhold any privilege or franchise from people on account of their homosexuality. When the question was posed, the professor reacted with a blank stare. Of Romer and its implications—and its connection to gay marriage—he professed to know nothing.
No more than a fortnight after the decision was handed down in Romer v. Evans, the same professor was in print, in the New Republic, not only aware of the connection, but quite emphatic now in his opinion: Romer v. Evans would in fact call into question the authority of a state in refusing to honor gay marriages. And indeed, as he suggested, it would call into question the power of the Congress to act now, with the Defense of Marriage Act, in seeking merely to preserve, for the states, their freedom to refuse.
That Romer should have any bearing of this kind on the law of marriage is still barely understood even by people who make their living by following public affairs. That the decision could have vast, unsettling effects on our law—that it could be used as a powerful lever in changing the professions, the universities, and the cast of our private lives—is well beyond the imagining of a public that does not spend its days absorbed in the life of the courts. And of course the media have taken care to shelter the public from any account in these matters that may be too precise or jolting for the public to hear.
There should be, by now, nothing startling in this pattern, for it has marked the ways of our courts and our politics over the past thirty years. The judges form a virtual concert to advance the interests of gay rights and other parts of the liberal agenda, and those who would resist these initiatives, even with the most modest measures, are branded as the aggressors and the zealots. Whether the issue has been abortion, or euthanasia, or “gay rights,” the courts have taken steps that were noticeable even at the time as novel and portentous. But these moves seemed to have struck no chord, no moral or religious nerve, running through the broad public. All of which must make us wonder whether we are indeed in post-Christian or post-religious America. But if these events have not set off alarms, it is even less likely that people would be sensitive to that subtler shift of power that runs to the root of the American regime itself: In one issue after another touching the moral ground of our common life, the power to legislate has been withdrawn from the people themselves, or the “consent of the governed,” and transferred by the judges to their own hands. And on this point, there has been no example more striking than the recent run of cases on “gay rights.”
For my own part, I would credit the avowals made by gay spokesmen like Barney Frank and Andrew Sullivan that they do not have the remotest interest in promoting polygamy, or in weakening the laws that sustain families. But their argument runs beyond their intentions. The arguments for gay marriage must in fact put into place the premises that make it untenable for the law to hold back from the acceptance of polygamy. And one thing may be attributed to the gay activists quite accurately and fairly: they have the most profound interest, rooted in the logic of their doctrine, in discrediting the notion that marriage finds its defining ground in nature. For that reason, we can count on the fact that there will be someone, somewhere, ready to press this issue by raising a challenge in the court and testing the limits even further.
In a widely noticed essay in 1991 the lawyer-activist Nan Hunter argued, with an unsettling directness, that “the impact of [gay and lesbian marriage] will be to dismantle the legal structure of gender in every marriage.” For this arrangement, she said, has “the potential to expose and denaturalize the historical construction of gender at the heart of marriage.” For several years, Ms. Hunter was the director of the AIDS Project and the Lesbian and Gay Rights Project for the American Civil Liberties Union. With these credentials, and these published sentiments, she was eminently suited to her appointment, in 1993, as the “deputy general counsel/legal counsel” in the Department of Health and Human Services under the Clinton Administration. She is, in other words, one of the most highly placed lawyers within the government likely to be consulted for an official judgment on matters relating to “the family.” And she is in a position, of course, to stoke the engines of litigation.
For what drives the litigation for gay rights is the need to have the gay life recognized and confirmed in principle in every setting in which the issue may arise. Gay activists seem to understand that their interests will not be secured as long as there persists in the public a residual moral sense that there is something about homosexuality that is not quite right. Hence, the need to seek more and more occasions for inducing the public first to tolerate, and then, in small steps, to endorse or approve. And now, with Romer v. Evans, the Court has handed the activists a powerful new device for advancing the movement ever further.
The reach of this device becomes ever clearer when we recall that the Court was not faced, in Romer, with an attempt to stir up prosecutions or withdraw the protections of the law from gays and lesbians. Colorado had already repealed its laws on sodomy. With Amendment 2, the people of Colorado had decided simply to withhold endorsement or favoritism: The coercions of the law would not be used to punish those people who bore moral objections to homosexuality. And yet, this perspective, reflected in the law, was characterized by the Court now as an “animus,” a form of blind prejudice that could not justify itself in the name of any rational purpose. As Scalia noted, his colleagues were now “disparaging as bigotry adherence to traditional attitudes,” rooted in religious teaching. In a stroke then—and without the need to marshal any reasons—the Court could pronounce the traditional moral teaching of Judaism and Christianity as empty, irrational, unjustified.
We find ourselves asking, then, in a blend of wonderment and outrage: What would it take in this country—what would have to happen?—before serious Christians and Jews would recognize, at once, that a critical line has been crossed? It is one thing to say, as the courts already have, that the moral precepts of Christianity and Judaism may not supply the premises of the law in a secular state. It is quite another to say that people who take those precepts seriously may be enduring targets of litigation and legal sanction if they have the temerity to voice those precepts as their own and make them the ground of their acts even in their private settings.
Perhaps Rousseau, with an edge of madness, had it right: that all of this simply came along with the ethic of modernity, as it was spread through the diffusion of the sciences and the arts. “We have all become doctors, and we have ceased being Christians.” Whatever the cause, it should be plain now that something in the religious sensibility has been deadened. My friend Russell Hittinger argues, with increasing persuasiveness, that the courts are making the political regime unlivable for serious Christians and Jews. To sound that alarm is to offer the call to political alertness. But the alarm cannot register, it cannot be felt, among people who have not been affected yet by the sense, as Christians and Jews, that there is anything taking place that is especially worth noticing.
He wrote all this in 1996. Think about that. Since then, on same-sex marriage, the culture has profoundly shifted, to where in many places, what was once judicially imposed is now democratically supported. The courts are making it harder and harder for serious Christians and Jews. In that same symposium, Prof. Russell Hittinger wrote:
There is a real possibility that the moral and religious motivations of some citizens will become not only actionable at public law, through constitutional suits challenging legislation informed by such motives, but also actionable at private law. Unless the elected representatives of the people can compel the Court to refrain from invalidating political activity merely on the basis of the citizens’ moral or religious motivation, the task of reform is blocked. Should that continue, the option remaining to right reason is the one traditionally used against despotic rule: civil disobedience.
I remember reading that at the time, thinking it was an extreme conclusion to draw. I don’t think that anymore. We have now had three Supreme Court decisions — Romer (1996), Lawrence (2003), and Windsor (2013) — in which the Court has declared, each time with increasing force, that the only reason for laws disfavoring gays and lesbians is irrational hatred. It’s time put Arkes’ question again to small-o orthodox Christians and Jews: What would it take in this country—what would have to happen?—before serious Christians and Jews would recognize, at once, that a critical line has been crossed?
UPDATE: As ever, I welcome critical commentary, but if you are moved to respond by writing a bitchy tirade, save your time and your efforts, because I’m not going to publish it.
UPDATE.2: And, to avoid having the same argument we’ve had a million times in other threads, I’m not going to post responses that stray from the topic of this post: religious freedom in the emerging order, and how traditionalist Christians should think about what patriotism means in an America that is turning hostile to them. It’s an interesting question, because so many conservative Christians have thought, wrongly or rightly, for many years that being a “good Christian” and being a “good American” were one and the same. The emerging order is forcing them, or should force them, to rethink all this. If you want to make a general comment about SSM, save your breath.