On marriage, religious liberty, and the “grand bargain”

by Robert George
From Mirror of Justice (A blog dedicated to the development of Catholic legal theory)

It was only yesterday, was it not, that proponents of sexual liberalism were telling us that the redefinition of marriage to include same-sex partnerships would have no impact at all on the lives of those persons and religious and other institutions that hold to the traditional conception of marriage as a conjugal union? Such persons and institutions would simply be unaffected by the change. So why should it matter to them that the law treats Bill and Harold, or Sally and Sheila, as married? Those making this argument were also assuring us 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 was (according to Andrew Sullivan and others) going to promote these 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 would be restricted, advocates of the redefinition of marriage accused us of engaging in “scare tactics.” No one, they said, was proposing the legal recogition of multi-partner relationships or the normalization of “open marriages.” No one, they insisted, would demand that Catholic or other foster care and adoption services agencies be required to place children in same-sex headed households. No one, they said, would require religious institutions in their schools and social services agencies to treat same-sex partners as spouses. No one, they said, would impose penalties or disabilities on dissenting institutions in licensing, accreditation, and the like. No one would be fired from his or her job (or suffer employment discrimination) for voicing support for conjugal marriage or criticising same-sex sexual conduct and relationships.

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 belief in the historic conjugal conception of marriage as the union of husband and wife is plain old “bigotry.” There is no rational basis for it. No reasonable person of goodwill could disagree with the liberal position on sex and marriage, anymore than a reasonable person of goodwill could embrace racism.

The dispute about sex and marriage is not, according to those leading the charge for redefining marriage, a reasonable disagreement among reasonable people of goodwill. It is a battle between the forces of reason, enlightenment, and equality, and those of ignorance, bigotry, and discrimination. Their opponents are to be treated just as racists are treated—since they are the equivalent of racists. Of course, we 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 disablity upon them and their institutions. (Just ask Bob Jones University.)

The fundamental error made by some, I believe, was to imagine that a grand bargain could be struck: “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.

I completely agree with Rob Vischer: “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 those seeking to carry forward the cause of sexual liberationism (and, if anything has become plain, it is that this is the larger cause of which the redefinition of marriage is an integral component) 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? 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, there are those who 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 one that they have ample resources to promote). We’ve all heard the argument (or taunt): “The acceptance of same-sex marriage on a national scale is inevitable. You had better get on the right side of history, lest you be remembered in the company of Orville Faubus.” 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. Does that mean that the reverse is true and that the conjugal conception of marriage will ultimately prevail in law and culture? No. There is nothing inevitable in this domain. As Roberto Unger used to preach to us in courses I took with him at Harvard, the future will be determined by human deliberation, judgment, and choice, not by laws of history analogous or akin to the laws of physics. As the Marxists learned the hard way, the reality of human freedom is the permanent foiler of “inevitability” theses.

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25 Responses to On marriage, religious liberty, and the “grand bargain”

  1. Toadspittle says:

    .
    We might have to go laboriously through this paragraph by paragraph. Let’s hope not, but here goes..

    “It was only yesterday, was it not, that proponents of sexual liberalism were telling us that the redefinition of marriage to include same-sex partnerships would have no impact at all on the lives of those persons and religious and other institutions that hold to the traditional conception of marriage as a conjugal union?”

    If it is indeed true the claim that “gay marriage” proponents claimed that it would have “no impact at all,” that is to say neither positive nor negative – on the lives of others (a claim which Toad rather doubts) then it was far too bold a claim for anyone to make.
    In fact, same-sex marriage has had no impact at all on the life of Toad and his wife, as far as they can see. But it may well have some sort of impact on the lives of others, for various reasons. No man is an island.
    What we should consider is how much of an impact is permissable. Toad has a great friend, a high ranking University professor who has been in a stable, caring, same-sex relationship for over 20 years. He wants to legalise this for several, mainly financial, but also emotional, reasons. So far, no luck. And now he is now being powerfully stigmatised and discriminated against for trying to do this. His job is at risk
    This seems wrong to Toad. And he would be prepared to take a little impact himself to assure his friend of success.
    If “gays” want to go to a church and hold hands and get married, and they can find a clergyperson prepared to do the job for ready money, why not let them?
    If sight of this happy occasion causes the righteous a little pain, Toad suggests they offer it up for the souls in purgatory.
    And, when it comes to changing the status of marriage, it is worth pointing out yet again, that inter-racial marriages were recently illegal in several places. Probably still are.
    No mention of that in the above.

    “No one would be fired from his or her job (or suffer employment discrimination) for voicing support for conjugal marriage…” Toad would be interested, and amazed if an example of the above could be produced. What if someone was fired from their job because they expressed dissent over the marriage of a black co-worker to a white one?
    Would that be unfair? Denial of free speech? Maybe.

    “No one, they insisted, wanted to alter those traditional marital norms.” the writer declares.
    What we must suppose he means by this is that no one wanted to make the marriage of a man and woman illegal, which is all that could be done.
    If he meant something else, Toad would like to know what.

    Like

  2. Toadspittle says:

    .

    In short,
    if it could be demonstrated that same-sex marriage really would have no impact at all on the lives of others – then the writer could, and would, have not the slightest objection to it.
    Would he?

    Like

  3. teresa says:

    Toad, good considerations, I think the problem of same sex marriage is that people nowadays tends to think marriage only in legal terms and don’t seem to consider it to be also based in nature. I still remember my Hegel course during my study, and in his “Vorlesungen über Rechtsphilosophie” he mentioned family as a natural institution. So the concept of marriage can’t be changed arbitrarily.

    As for the impact, neither do I feel the impact of same sex marriage on my own personal life. But it seems that in the States there are several cases of impact of same sex marriage: one year ago I read in Washington Post a case that a Church run adoption agency was forced to give their children to same sex couples for adoption, or this agency must be closed down. Recently one U.S. bishop did say they will have to close down these children’s homes and adoption agencies if they are to be forced to give their children to same sex couples. If same sex couples are living legally in a marriage and thus construct a family like heterosexual couples, the Church would be forced to treat the partnership between homosexuals as the same as heterosexuals, and it will have a lot of practical implications.

    Not that the righteous are offended I think, actually, very liberal rabbis are also willing to bless a same sex partnership, and marry the couple. In very liberal Christian congregations they can also have a “marriage”, if they pay, well, yes. For the Catholic Church it is impossible as marriage is a sacrament and defined as a union between a man and a woman, who will bring forth offspring.

    I would say that a “civil partnership” for homosexuals with certain legal protections is a much better solution, as practised in Germany. But it is still a much too liberal solution for some, though I see no great problem with it. But perhaps there is some impact which I am unaware of. So I am interested in the opinions of the others.

    (Must go into the town for a while but I shall look in here again this afternoon).

    Like

  4. Toadspittle says:

    .
    …And another thing…
    “…but we don’t hesitate to stigmatize them (presumably meaing Christians) and impose various forms of social and even civil disablity upon them and their institutions. (Just ask Bob Jones University.) “ Is Mr(?) George citing this imbecile institution approvingly? It seems so to Toad, though it is not entirely clear.
    This from Wiki:
    “The three Bob Joneses, especially Bob Jones, Jr., sharply criticized the Roman Catholic Church. For instance, Jones, Jr. once said that Catholicism was “not another Christian denomination. It is a satanic counterfeit, an ecclesiastic tyranny over the souls of men….It is the old harlot of the book of the Revelation—’the Mother of Harlots.'” All popes, Jones asserted, “are demon possessed.” In 2000, then-president Bob Jones III referred, on the university’s web page, to Mormons and Catholics as “cults which call themselves Christian.”
    And, incidentially, inter-racial marriage is forbidden.
    “In a 2000 interview, the then-president, Bob Jones III, said that interracial dating had been prohibited since the 1950s “
    Also Wiki. And who’s to say they havn’t got a perfect right to impose whatever rules they like on their own people? (Apart from Toad)

    (P:S: don’t forget to send Wiki a 2012 donation: very good cause.)

    Like

  5. The Raven says:

    Toad,

    I think that the author of this piece is guilty of a little conflation: he is mixing up the processes that result in gay marriage becoming an issue with the actual fact of gay marriage. I think that the real object of his attack is the way in which equalities laws have been enforced, which is a fair point of concern, but he is making an unwarranted leap by attaching those problems to gay marriage per se.

    I think that the real issues with gay marriage are theological and philosophical (I suppose that there is also a sociological concern about normalising what can be seen as dysfunction). The problems that the author cites are related but tangential to the question of marriage between persons of the same sex.

    Like

  6. teresa says:

    Sorry for the English, wrote the above comment in haste and had the German word “Paar” for “couple” in the head and thus made the silly mistake, now corrected and amended

    Like

  7. marcpuck says:

    Professor George continues, blogging about a former student’s conversation with his constitutional law professor who is apparently ready to welcome the day when Catholics are consigned with their fellow haters to exclusion from the judiciary and other public office: http://bit.ly/srMGVi .
    (And, no, Toadspittle, Robert George doesn’t at all agree with Bob Jones University’s historically racist nonsense, but it is a good institutional example of the sort of ‘social and even civil disabilities’ that will increasingly attach to Catholics who won’t desist from publicly opposing the imposition of so-called ‘same sex marriage’ and its ethos; no graduate of BJU would ever be hired in the editorial departments of, e.g., CNN or, presumably, the BBC, and no graduate of BJU would ever be appointed to the Federal bench, either.)

    Like

  8. teresa says:

    Thank you Marc for providing us with this very useful information. And Happy New Year (though a belated one, should have greeted you yesterday!).

    Like

  9. JabbaPapa says:

    If “gays” want to go to a church and hold hands and get married, and they can find a clergyperson prepared to do the job for ready money, why not let them?

    as a simple, and fairly lapidary response : because Catholicism requires consensus for any change, and there is not only no consensus, but indeed there is widespread opposition to the notion of same-sex “marriage”.

    Like

  10. Srdc says:

    What’s got us to this point is brokenness. If there wasn’t a 60% divorce rate, and breakdown of the family in general, there would be no gay marriage. Alternative lifestyles are trying to fill a vacuum already created.

    Like

  11. Jerry says:

    I would say that a “civil partnership” for homosexuals with certain legal protections is a much better solution, as practised in Germany. But it is still a much too liberal solution for some, though I see no great problem with it. But perhaps there is some impact which I am unaware of.

    I think Teresa is right that this would be a better solution. In New Zealand we have “civil unions” which are available to both homosexual and heterosexual couples. Some readers may remember that contributor to CP&S Joyful Papist suggested that it would make sense for the Catholic Church to emphasise the distinction between Christian sacramental marriage and civil marriage. The church could adopt a neutral stance with respect to civil marriage, while affirming that a Catholic Marriage is exactly what it has always been. Priests could cease to function as marriage celebrants in the legal sense, whilst still marrying couples in the eyes of the church. A Catholic couple would simply have to seperately register their union as a civil marriage.
    No priest would be asked to celebrate a homosexual union, and no confusion would arise between the ever changing popular understanding of “marriage” and the fixed position of the Catholic Church.

    Like

  12. Srdc says:

    Jerry,

    The difference is in NZ, those in civil unions cannot adopt. What are your views on this?

    Like

  13. Jerry says:

    Srdc,

    Good point. The difficult thing about adoption is that it can’t be reduced to personal choices made by “consenting adults”. All western governments reserve the right to intervene if a child is being raised in a demonstrably abusive environment, or refuse to allow adoption to manifestly unsuitable homes. — My purely personal view is that it is possible for a child to be raised well by a commited and morally serious same sex couple. —

    But as to the broader issue of how the Catholic Church should approach the issue, there is an obvious problem. The Church has every right to hold to her definition of marriage. And every right to state that sacramental marriage is the best and most appropriate context in which to raise a child.

    Having said that, I find it difficult to see refusing to accept children being raised by a same sex couple into a Catholic school (eg Bp Chaput) as anything other than a penalty imposed on an innocent child.

    When all is said and done, I tend to think that the NZ model (we have same sex marriage in all but name) isn’t too bad. Even if a case can be made for same sex adoption, there is no social consensus behind it.

    Like

  14. JabbaPapa says:

    Jerry, I think that civil unions, as they also exist in France, are a basically satisfying solution, to a problem that has been created in civil law, and in civil law only – no matter the more involved personal positions of those who are either pro or contra.

    Simply, there are laws now that are so complex and so involved concerning the legal, fiscal, and other such situations of married couples, that same sex couples are objectively discriminated against if their own relationships are not legally recognised.

    The legal recognition of those relationships does not however require that they be defined as “marriage”.

    Like

  15. Toadspittle says:

    .

    “What’s got us to this point is brokenness. If there wasn’t a 60% divorce rate, and breakdown of the family in general, there would be no gay marriage.” a bold assertion from Srdc, which Toad doubts is true. Fewer gay marriages possibly, but even that is dubious.
    True, some men are known to divorce their wives in order to marry their boyfriends – but surely not 60% of them?
    Pity there are no figures (as far as Toad knows) yet for gay divorces. We must pray that they are more successful at marriage than us “straights.”
    Or maybe we should pray that they are not? Interesting.

    And Jabba, Toad was not for a minute suggesting that Catholic priests should perform gay marriages. At least, not without the express approval of the pope, and him getting a percentage of the fee.

    All this causes Toad to reflect that God must be almost as inordinately fond of gays as He is of beetles and stars – as He has made such a teeming multitude of all three.
    (Apologies to Haldane.)

    Like

  16. The Raven says:

    Jerry, there is no social consensus for adoption by same sex couples in the UK either, but it is being imposed upon us, irrespective of the married/civil partnership state of the potential adoptive parents.

    Like

  17. Srdc says:

    Toad,

    I was referring to heterosexual marriage divorce rates and the breakdown of the male/female relationship that creates a vacuum for alternative lifestyles to seem okay to people.

    Like

  18. Srdc says:

    Raven,

    The problem is that the gay lobby does not want a compromise. They have created their own reality and want to impose it on others. Any affirmation of traditional marriage is seen as a denial of them.

    Like

  19. JabbaPapa says:

    The problem is that the gay lobby does not want a compromise.

    That’s the truth.

    Like

  20. Toadspittle says:

    .

    “The problem is that the gay lobby does not want a compromise.”

    Unlike the Catholics, of course.

    Like

  21. Jerry says:

    The problem is that the gay lobby does not want a compromise. They have created their own reality and want to impose it on others. Any affirmation of traditional marriage is seen as a denial of them.

    It depends on what you mean by an affirmation of traditional marriage. Marriage, considered as a sacrament of the Catholic Church, is obviously not the same as ‘marriage’, the legal institution which defined and modified in law by legislation.

    British (say) society has no right to dictate to the Church the nature of Catholic marriage. And nor does it do so. What constitutes a valid Catholic marriage is an internal matter for the Catholic Church. Likewise, the Church has no more say than any other individual or voluntary association as to how civil marriage is defined.

    Same-sex civil marriage needn’t impinge on the freedom of the Church. It is (literally) a civil-union which can have status in law, and no status or validity whatsoever in Catholic religious terms.
    Surely it makes sense for the Church to strongly defend the integrity of sacramental marriage, and calmly accept that civil society uses the word “marriage” to mean something quite different, and will pursue its own course.

    Which brings me back to JP’s suggestion that priests underscore the increasing divergence between Catholic and civil marriage, and renounce their function as legal celebrants. This in itself would clarify the debate and underscore the distinctiveness of Catholic marriage in an increasingly non-Christian, secular society. After all, before the 4th – 5th century the church worked with an understanding of marriage that was radically different from the non-Christian society in which it sojourned. — Since Christendom is no more, why not go back to that model?

    Obviously its a completely seperate issue how the Church deals with those calling for a change to the nature of catholic marriage itself — but that’s an internal matter.

    Like

  22. Toadspittle says:

    .
    What an extremely sensible suggestion, from J.P. via Jerry.
    More separation of church and state.
    Jery is right in a way, I suppose, to suggest that “Christendom is no more.”
    Toad would like to think of it as waving, rather than drowning, though.

    We should all rejoice in Tesco-style “diversity”, (q.v.) while keeping our cash firmly in our pockets. Thinks Toad.

    Like

  23. Jerry says:

    Toad would like to think of it as waving, rather than drowning, though

    A less distressing image might be that everyone decided that it was time to leave the party and pop down to the pub.

    Like

  24. Jerry says:

    We should all rejoice in Tesco-style “diversity”, (q.v.) while keeping our cash firmly in our pockets. Thinks Toad.

    I haven’t shopped at Tesco for many a year, settled in the antipodes as I am. I don’t quite see the harm in sponsoring the “Pride” march, or in the march itself. Don’t really see the harm in Free Masons either. I should make an effort to get more wound up about things.

    Seriously though, what JP suggested was (in its original form) tailored to the NZ situation, but I believe the point works just as well in the UK.

    let’s stop performing marriages that are not sacramental. Let’s have all our priests resign as marriage celebrants. Let’s have our bishops opt out of the arrangement with the government that makes a priest a marriage celebrant. If someone wants a sacramental marriage, let them first have a civil marriage. That’s the way it’s done elsewhere – and I think it’s a great idea. It makes a clear difference between marriage as a social and legal contract, and marriage as a sacred covenant.

    Like

  25. Srdc says:

    Jerry,

    I have no issues, with this line of argument, but what about the church’s teachings on the natural law theory and to work for the common good?

    It’s not just marriage, there is also a strong distinction between a religious vocation and a secular one. This distinction is found in both Catholic/Orthodox churches, but lived out in different ways.

    Like

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