Same-sex Marriage Again

Given the likelihood of the eventual legalization of same-sex marriage, it is appropriate to step back a little to gain a broader perspective. Same-sex marriage can be viewed as bringing under statutory control that which had previously been unregulated. In this sense it is like the legalization of marijuana and the  mandatory registration of all guns. It is unlike the first in that same-sex relationships are not regarded as illegal; and it is unlike the second in that same-sex marriages are not mandatory. From the stand point of freedom, it is the voluntary acceptance of an infringement upon our freedoms, which is what marriage has always been, whether state-sponsored or not. It has long been held that one of the chief functions of institutions is the organization of society for the good of all. From the Christian perspective, they are accommodations to sin for the good of others and havens from sin. In particular, marriage is viewed as an institution ordained by God for the good of those married, their children, and society as a whole. It is not good for men and women to be alone. Marriage reflects in microcosm the attitudes and relationships of the society as a whole. In this way, its role in the rearing of children is of fundamental importance for society. Moreover, marriage is viewed as a haven from the sin of promiscuity. It can be viewed, then, in George Gilder style, as intended to reign in the activities of men and women for the good of both society and those that marry.

From the point of view of those who want to bring every activity under state aegis, same-sex marriage is a victory. One might argue that this is not the case here since the marriage is enjoined and dissolved voluntarily.  The state, however, has the power to bestow and deny benefits as it pleases, resulting in us willingly restricting our freedoms. Where special tax benefits, and other privileges, are bestowed upon those married, we might easily be tempted to take the bait. This is often a good thing. It is good for us and for others that our freedoms are restricted. Indeed, that every legislation does just that.

 From the perspective of traditional marriage, it might too be seen as a victory. How can this be since they have fought so hard against it? In this long debate, it has often seemed that homosexuals and lesbians, at least some of them, are the last bastions of traditional marriage. Marriage has in the preceding decades been increasingly devalued, as has much in American life. Yet in this debate regarding same-sex marriage what has not been doubted is the view that marriage is a life-long commitment of fidelity, just what large numbers of heterosexuals deny. What so many Americans reject has been won in same-sex marriage: Monogamy. Were marriage law more faithful to that intention, it might be more secured. Sadly, faithfulness and even sacrifice are viewed by many of our neighbors as dispensable, and in this there are many legislators who are ready and willing to come to their aid. What is lacking in this victory is the view that marriage is a haven from sin, and this because promiscuity is not viewed as one. Nonetheless, what is often missed in the focused debate upon the sex of the couples, is that same-sex marriage has unequivocally been sold as an embrace of the traditional, and even Christian, view of what marriage entails and binds us to. And this can rightly be viewed as a victory for traditional marriage.

A marriage will not long endure where it is not viewed as binding us.  This is so whether the marriage is sanctioned by law or not.  And this voluntary acceptance of the binding will not stand lest we embrace the good that it works in us and in those near to us.  Inasmuch as that which works can often come against us, we suffer. For this reason, marriage, as all our vocations, are seen as a cross, which like that which was first upon Calvary, works good in us and for others. Statutory marriage deals not only up privileges, but also obligations. As such, it can serve to bind us to that which we pledge. Without, however, those very same commitments that establish unsanctioned marriage, fidelity and the embrace of our bonds, sanctioned marriage will not long endure, nor serve the purpose for which it was established. Marriage, as all law, seeks to tame and civilize us, lest sin and disorder reign. But if that law remains only as deep and strong as the shackles that bind us, little is gained. Somehow it must take up residence in some refuge of our heart. That way is the way of humility and brokenness. How strange and foreign falls those words upon the cobblestones of our times, what not so long ago could have been heard, but now is garbled or hated. Perhaps same-sex marriage will yet save us from ourselves. Will they call us back to fidelity and long suffering? How odd it should rise up from the stones that were rejected.

Gay Marriage

Today (3/26/2013) the US Supreme Court will begin reviewing two cases associated with gay or homosexual marriage. Were I sitting on the bench I would have a number of questions for the proponents of gay marriage. The aim of these questions would be the clarify what it is they are suing for. My line of questioning would go something like the following.

Under the present understanding of marriage sexual relationships are important because they can produce children. Were the definition of marriage extended to include people of the same sex, what relevance does the possibility of a sexual relationship have for marriage?  If the possibility of a sexual relationship is relevant for marriage, what is that relevance? Do you maintain that having sexual relationships is necessary for establishing the bond between the couple? That would seem to be a difficult position to maintain. Whereas, if the possibility of sexual relationships were important because of the possibility of producing children, perhaps we ought to be considering here heterosexual polygamous marriage and not homosexual marriage. If then having sexual relationships are not relevant for marriage, what objection would you have to the marriage of a son with his father? Indeed, they might claim that in order to receive equal protection under the estate tax code, they ought to be permitted to marry. The possibility of sexual relationships being irrelevant for marriage, what else ought to be irrelevant? If it is only the establishment of a mutual commitments that constitutes marriage, what would distinguish your arguments from those arguing for polygamy or group marriage?  

The question before the Supreme Court is, or ought to be, a purely legal one. Is it unconstitutional to define marriage as between consenting adults of the opposite sex? Prima facie, it seems absurd to even ask the question. It is, however, not the legal definition of marriage per se that is at stake. From a strictly legal standpoint, it is instead the large set of laws and regulations that are associated with the designation of marriage. For this reason, the issue before the Court will be one of equal protection under the law. What the plaintiffs will have to argue is that there are no justifiable or relevant reasons to deny homosexual couples the same rights, obligations, and privileges granted to heterosexuals through statutory marriage.

There are many peculiar aspects of this national debate. Both the proponents and opponents of gay marriage appear confused. Whereas, the debate can only be strictly enjoined along statutory lines, all combatants clearly believe that much more is at stake. The relationship between a societal and a statutory understanding of marriage are only loosely linked. Whereas, a societal understanding of marriage is associated with a lifelong, loving mutual commitment of a couple to each other, statutory requirements and regulations say next to nothing of it. From the perspective of the law, the relationship appears not much different from the formation of a corporation. The debate amongst both combatants is intimately associated with the social acceptability of homosexuality. The presumption of both sides in the dispute is that gay marriage and the morality of homosexuality are irrevocably linked.  Yet, it ought to be clear that one can believe homosexuality to be immoral or surely not something we want to encourage and still be in favor of gay marriage; or to believe that homosexuality is equally as moral as heterosexuality and yet be opposed to gay marriage. The former only requires a liberal sense of toleration and the purchase of the equal protection argument; and the latter that heterosexual marriage is sufficiently distinct from homosexual relationships to justify the legal distinction and that equal protection can be obtained piecemeal on a case by case basis. The opponents of gay marriage might very well be willing to give up all the laws associated with marriage as long as they can preserve the definition of marriage. While the equal protection argument is only concerned with laws grown up around the class of married people, my suspicion is that the vast majority of gay marriage proponents are in complete agreement with their opponents: the real issue is the definition of marriage and not equal protection under the laws associated with that definition. Theodore Olsen, the attorney speaking against the constitutionality of California's Proposition 8, admitted the same in his testimony today before the Supreme Court, putting him in the unenviable position of having to defend the ability of a mere label to do great things. And this is because the ultimate issue, while being publicly engaged in the courts, is not legal, but societal. But if what is being sought in gay marriage is merely the label, or some measure of respectability, it seems that it is being sought in the wrong arena. That societal respectability cannot be won in the courts, but only in the community at large, where it has been engaged in for well over a decade in the media, both news and entertainment, and in our educational institutions. The fruits of that billion dollar onslaught are evident in the changing attitudes of the American populace. But if what is sought in gay marriage is respectability, then appeals to equal protection under the law are moot. But if the appeal to the Supreme Court is not on the basis of equal protection, then upon what is it based? 

What is utterly lacking in this debate is the classical liberal distinction between tolerance and legality. According to that understanding, we can tolerate those behaviors that we judge immoral or undesirable. Not all states share this distinction, and what is more, not all  individuals do. It seems that in this debate, we have reverted to an earlier time before such a distinction was established. Both sides of this issue believe in the equivalence of morality and legality. This conclusion is perhaps engendered by years of tolerance training, whereby tolerance is taken as either envisioning everyone and all behavior as good, or as having no opinion at all. We have been taught that to judge someone is bad. And if we judge no one, we must have no basis upon which to do so. Any kind of morality is judged bad, but that we have none. In this view, loving is equivalent to approving of everyone and every thing. Such a view, or anything like it, undermines the quality of true tolerance. Indeed, it rejects a tolerance that tolerates what is evil or bad, as intolerant and evil itself. 

What interests me here is what the rejection of true tolerance looks like, and what it bodes for liberal democratic societies. In all societies some beliefs and behaviors are judged so immoral that they must be prohibited in all quarters. In more liberal societies the number of such behaviors and beliefs is smaller than in less liberal. But this is not the only basis for such a distinction. For two societies agreeing in all matters moral need not have identical statutes and legal compulsion. That difference is reflected in the level of tolerance. What underlies that tolerance and makes one society or individual more tolerant than another? It could be moral ambiguity. A society or individual that is morally ambivalent is likely to be more tolerant. That is surely the case today in America. There is a rapidly declining sense that something is right or wrong, and each is left to find his or her own way. Moral relativism and the sovereignty of personal autonomy reigns supreme. It is evidence of a declining culture that has lost its way, and sees no reason or warrant for anything outside a utilitarian, pragmatic ethic, perhaps the best that a de facto scientism can support. 

As a Christian, however, I am interested in something I regard as far more profound and rare. It seems clear that the Cross of Christ must support some kind of true tolerance. For it is there that the imperfect are embraced. How is this possible?  For what is not diminished, indeed is magnified on the Cross is the evil of evil; and not merely the evil of the world that would crucify the one who is good and blameless, but the evil and guilt inherent in each of us. How, in not diminishing our guilt, can we be embraced?  In some sense, we must be judged greater than and distinct from our evil. For in forgiving that evil, something still remains. In true love it is that remainder, the individual person, that is unconditionally bound to. In this loving and binding, it is not necessary to embrace all aspects of their behavior and beliefs. It is part of the cross we bear that we not do so, which is just what is rejected in our modern tolerance: that there be a cross to bear. For suffering of any kind is judged an evil. We lack a sense of an enduring self that is greater than the suffering experienced, perhaps in large measure because we lack the ontological support of personal existence provided by a personal god. And if our ontological inadequacy is unsupported, as our subjectivity is ungrounded, what remains for the individual but to find rest in the relativism of the herd? We must all get along in our shared ambiguity and uncertainty, having no basis to do otherwise. If this is even close to correct, homosexuality or any such issue pressed upon the public's mind must be met by conformity. For the fear of not conforming has no place to stand or hide. It is a public self, internally hollow. And if it is dread of conformity that motivates the modern mind, then what does that bode for a liberal democracy? What does it bode for our nation when tolerance embraces only conformity and rejects the cross of a true tolerance? Does it result in a totalitarian society, or, at least, one that cannot resist it? This message is not only for these, but also for those that bear the marks of the Cross. For if Christ should embrace them and their imperfection, how then ought they embrace the world and those in it? What does the chasm between themselves and their guilt, bridged by unwarranted forgiveness, entail for their relationship with others? I would suggest that it carves out a place for us, an imperfect world, and our relationship with it. What more I cannot, nor will not, dare to say, but to argue that it makes a way for what is rare: a true tolerance, and even forgiveness for wrong. What that looks like, I will not try to say, nor do I think it takes a single shape, made more complex by loved ones who practice homosexuality, or a host of sins and behaviors, from which none of us are free.