Skip to comments.Same-Sex Marriage and the Failure of Justificatory Liberalism [Open]
Posted on 12/11/2008 1:24:45 PM PST by NYer
On November 4, 2008, the people of Californiain a 52 to 48 percent voteplaced in the states constitution an amendment that reaffirmed that marriage consists of one man and one woman. The amendment, Proposition 8, overturned the California Supreme Courts May 2008 ruling that invalidated a statute that was passed in 2000 in a statewide referendum by a 61 to 39 percent vote. That 2008 opinion held that limiting marriage to one man and one woman, as required in the 2000 statute, violated the equal protection rights of homosexuals under the California constitution.
Following the Proposition 8 victory, thousands of its opponents protested in a number of California venues including in front of the Mormon Temple in Los Angeles and Rick Warrens Saddleback Church in Orange County. The rage and anger exhibited toward the Latter-day Saint and Evangelical believers who were present during the protests was palpable. The protesters were clearly blaming their loss on the effort and organizational and financial support of LDS citizens as well as Pastor Warrens vocal backing for Proposition 8.
There is a certain irony in seeing those who speak so often of tolerance and understanding using the occasion of a political loss to unleash a torrid of vitriol that no one would ever confuse with tolerance and understanding if the perpetrators were burning crosses or Dixie Chick CDs. And yet the perpetrators in this instance, the losers in the Prop 8 election, do not see it that way. They see the absence of same-sex marriage from our legal regime as a grave injustice that must be remedied by any means necessary. For them, tolerance does not extend to injustice.
But then the initial argument, offered to the general public several decades agothe call for the wider society to be tolerant of homosexualitywas something of a ruse. Many of us were under the impression that the requirement of tolerance entailed that citizens were in fact permitted to offer negative or positive judgments about the objects of their toleration, and in some instances shape policy consistent with those judgments. After all, one does not tolerate that with which one agrees; one embraces it. One can only tolerate that with which one disagrees. This is why the Museum of Tolerance in Los Angeles is misnamed. One ought not to be merely tolerant of ones fellow human beings; one ought to embrace them as persons with intrinsic dignity made in the image of God. Of course, what these persons believe and practice for a variety of subjectsincluding religion and human sexualityare the proper objects of tolerance.
So, for example, as a Christian in a regime that requires religious liberty, I may reject my Muslim neighbors theology as mistaken, but I may not obstruct her religious freedom. If, however, her husband wants to acquire another wife, consistent with Islamic teaching, he may do so. But he may not require, as an entailment of his religious liberty, that the laws of our community recognize his polygamous union as a marriage that would require by the force of law that the institutions and members of that community recognize it as well. He could, if he wanted to, change the laws by the legislative mechanisms afforded to him by our system of government. But this would require that he secure the cooperation of his fellow citizens by means of argument and persuasion. And if he were to be successful, polygamy would no longer be an object of mere toleration, but a public good supported by the community and enshrined in its laws. Those who dissent from this point of view may harbor their dissent in private, just as racists may in their hearts remain racists. But they would have no right to practice their dissent in their public lives, including employment, education, housing, and public accommodations.
In the post-election discussions on Proposition 8 much has been made about the religious make-up of those that supported the amendment. Take, for example, the comments of Professor Geoffrey Stone of the University of Chicago Law School:
Proposition 8 was enacted by a vote of 52 percent to 48 percent. Those identifying themselves as Evangelicals, however, supported Proposition 8 by a margin of 81 percent to 19 percent, and those who say they attend church services weekly supported Proposition 8 by a vote of 84 percent to 16 percent. Non-Christians, by the way, opposed Proposition 8 by a margin 85 percent to 15 percent and those who do not attend church regularly opposed Proposition 8 by a vote of 83 percent to 17 percent.
What this tells us, quite strikingly, is that Proposition 8 was a highly successful effort of a particular religious group to conscript the power of the state to impose their religious beliefs on their fellow citizens, whether or not those citizens share those beliefs. This is a serious threat to a free society committed to the principle of separation of church and state.
Setting aside the question of what Stone could possibly mean by a particular religious group (since that group would include Mormons, Catholics, and Evangelicals), what he seems to be suggesting is a version of what is called justificatory liberalism. Because there are many different versions of this position, I will focus on what I think Prof. Stone is defending. He seems to be saying something like this: Because religious citizens have an understanding of sources of authority, background beliefs, and reasons not shared by their neighbors, they should restrain from employing those sources as the basis for the reasons why they enact laws that limit the liberty of their fellow citizens who do not share those sources of authority.
But its not clear why religious citizens should accept this rule if they have fulfilled all their epistemic duties and believe that they have good grounds for the coercive laws they support, even if those grounds are supported by premises not held by all. It is the case, after all, that each of us comes to the public conversation with a cluster of beliefs that we hold for a variety of reasons, many of which are based on both arguments we have carefully assessed as well as authorities that we believe are reliable and have no reason to distrust. But in that case, the typical non-religious citizen enters the public square in precisely the same position as the typical religious one. And in both cases, each likely supports laws that he or she thinks are reasonable and necessary but that in some cases have the consequence of limiting the liberties of others, even though each is not likely to see that consequence as a net harm, since each will see it as an advancement of justice and the public good. Consider the following example.
In Massachusetts soon after the states Supreme Judicial Court in Goodrich v. Department of Public Health (2003) required that the state issue marriage licenses to same-sex couples, Catholic Charities, which was at the time in the child adoption business, was told by the state that it could no longer exclude same-sex couples as adoptee parents. Because the Catholic Church maintains that same-sex unions are deeply disordered and sinful, and, because it did not want to compromise its moral theology, Catholic Charities ceased putting children up for adoption.
Thus, from the perspective of Catholic citizens who oppose same-sex marriage, this state of affairs limits their liberty and that of their Church based on an understanding (e.g., arguments for same-sex marriage that its advocates find persuasive, a philosophical anthropology and view of human sexuality that same-sex marriage proponents find intuitively obvious, etc.) that they do not share with those who support same-sex marriage, including Massachusetts Supreme Judicial Court.
As it happens, the proponents of same-sex marriage, including Stone and many gay citizens, see this state of affairs as an advancement of justice and the common good. For that reason, they find same-sex marriage is almost a logical entailment of what they think the ends of liberal democracy should be. For, in their minds, the state is unjust if it denies citizens the opportunity to marry whomever they choose, particularly when the state’s denial is based on an understanding of human sexuality inexorably tied to a source of authority that gay citizens reject. Meanwhile, opponents of same-sex marriage see injustice in the state’s coercing them to embrace a policy that they maintain is deleterious of social justice and the public good.
My point is this: If we interpret Stone and the postProposition 8 protesters as embracing the position that one cannot support a law that limits anothers liberty if ones reason for the law is based on premises and sources of authority not shared by ones fellow citizens, neither side in the same-sex marriage debate can escape the scope of that prohibition. It is, in the words, of Robert P. George, a clash of orthodoxies, for which the dominant understanding of liberal democracy is ill suited to secure peace.
Mormon Temple in Los Angeles
Saddleback Church in Orange County
Comments of Prof. Geoffrey Stone of the University of Chicago Law School
Banned in Boston by Maggie Gallagher, Weekly Standard (May 15, 2006)
Goodrich v. Department of Public Health (PDF)
A Clash of Orthodoxies by Robert P. George, First Things (August/September 1999)
Silly professor. Leftists aren’t interested in justice, fairness, facts or reason. If they were, they wouldn’t be leftists!
Gay Marriage is not a public good.
I learned a long, long time ago that liberals will tolerate anything except a challenge of their premises, which they think self-evident like the axioms of euclidean geometry,