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.
In November 1992, the voters of Colorado, in a referendum, foreclosed to legislatures at all levels the authority to treat gays and lesbians on the same plane as groups that have suffered discrimination based on race, religion, and gender. In effect, the amendment to their constitution (Amendment 2) would have removed from legislatures the authority to pass statutes that barred discriminations based on sexual orientation. Those statutes provided a club for the law in meting out public humiliations for people who hold moral and religious objections to homosexuality. In one telling case, the wife of a shopowner in Boulder, Colorado had given a pamphlet on homosexuality to a gay employee. For that offense, she was charged under the local ordinance on gay rights, and compelled to enter a program of compulsory counseling.
We will hear, no doubt, many different accounts of Amendment 2 in Colorado, but I would offer this construction: The Amendment merely sought to preserve for people, in their private settings, the freedom to honor their own moral understandings on the matter of homosexuality. The Amendment licensed no criminal prosecutions directed at gays or lesbians, and it withdrew from homosexuals no protections of the law. Still, the Court overturned this move by the people of Colorado, acting in their sovereign capacity, to shape their fundamental law. Ten years earlier, in Bowers v. Hardwick , the Court had upheld the power of a state to make sodomy a crime; but now, as Justice Scalia pointed out, the Court was willing to strike down a law merely for disfavoring homosexual conduct. And in the sweep of its judgment, the Court produced a decision that could be read by activists among the judges to encompass this principle: that it would now be immanently suspect on constitutional grounds to plant, anywhere in the laws, a policy that casts an adverse judgment on homosexuality, or accords to homosexuality a lesser standing or legitimacy than the sexuality imprinted in our natures. Armed with this decision, judges throughout the country would be able to tie up, or overturn, any statute in a state that refused to recognize gay marriage.
During the hearings on the Defense of Marriage Act, Representative Pat Schroeder (D-Col.) declared that the issue of gay marriage involved simply our willingness to honor, with equal respect, the love we encounter in all couples. And yet, as others were quick to point out, no one doubts the love of men for men, or women for women, just as no one doubts that there may be abiding relations of love between brothers and sisters, or grandparents and grandchildren. But those loves cannot be diminished as loves because they are not attended by penetration or expressed in marriage. Marriage is not needed to mark the presence of love, but a marriage marks something matchless in a framework for the begetting and nurturance of children. It means that a child enters the world in a framework of lawfulness, with parents who are committed to her care and nurturance for the same reason that they are committed to each other.
But that is to say there is a connection, long understood, between marriage and what may be called the natural teleology of the body”the inescapable fact that only two people, not three, only a man and a woman, can beget a child. As Michael Uhlmann has remarked, it becomes impossible finally to talk about marriage without using that N-word, nature, and without talking about the sexuality imprinted in our gendered existence: Male and female created He them. There is a purpose plainly marked in the fact that we are born man and woman, and it was once understood that this purpose found its expression in marriage as a blending of nature and law. If marriage were entirely a matter of law, then the positive law could prescribe virtually anything as a marriage: Brothers then might marry sisters”or brothers; they might even marry their household pets. Or, they might marry more than one person. If marriage is detached from that natural teleology of the body, on what ground of principle could the law rule out the people who profess that their own love is not confined to a coupling of two, but woven together in a larger ensemble of three or four?
When this question was posed in the hearings on the Defense of Marriage Act, it produced, among the defenders of gay marriage, a show of bafflement. Yet, the people who were inclined to dismiss the matter of polygamy were treating with a certain nonchalance something that deserved to be treated with far more caution and sobriety. For many years, there have been centers of polygamy in southern Utah and northern Arizona that have proven intractable. Some telling commentary was offered by Paul Van Dam, the Attorney General of Utah, in 1990:
Every law enforcement officer in Utah knows there are tens of thousands of polygamists in the area, and they are clearly violating the law. Yet if we prosecute these men and women, we know [from experience] that we will produce an incredible social disruption. Thousands of children must be cared for emotionally and otherwise, and that’s a terribly expensive proposition.
In addition, if you go after polygamists for illegal cohabitation, can you limit such a policy to polygamists, or do you pursue every couple in this state that is living together without benefit of a licensed marriage?
In other words, the authorities are already aware that the principled grounds of their restrictions have been compromised by the changes in the climate of opinion that have swept away the moral inhibitions on couples living together outside of marriage. One state legislator could remark, with offhandedness, that polygamy just doesn’t happen to be a big issue back in Iowa. But it seemed to elude this earnest man that polygamy does not happen to be an issue in his state precisely because the law, for many years, has cast up serious barriers against the practice. And if those barriers started coming down, do we really think that our species would be incapable of manifesting once again an interest in that arrangement?
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.
Justice Scalia has found his own, distinct touch as a jurist in offering the concrete example that illuminates the jural landscape; and in this case, he marked out with a chilling precision the path that leads out from Romer . Scalia noted that the Association of American Law Schools requires its members to extract, from the firms interviewing their students, an assurance of the employer’s willingness to hire homosexuals. If an interviewer harbors traditional moral views on homosexuality, his firm could be in violation of the rule established by the Association of Law Schools. We can expect, of course, that rules of this kind will quickly make their way into the bar associations, as well as other groups of professionals. Will there not be an incentive then for the law firms to gauge whether any senior partners”or even young associates”hold views that may put the firm at odds with these regulations? And the incentives will not emanate simply from the conventions of the law schools. After all, the Supreme Court itself has now declared that a moral objection to homosexuality is indefensible, a distillation of an unreasoned prejudice. If a young, gay associate is denied standing as a partner, could it not be claimed that the climate in the firm was poisoned at the outset, that it was set in a discriminatory cast by the presence of senior partners who bore moral reservations about homosexuality?
And what can be said in this respect for law firms could be said even more forcefully about colleges and universities. Given the litigious experience these days in the academy, we can virtually count on the fact that such grievances will be filed. What if a member of an academic department has simply done what I have done”given public testimony, or published a moral judgment on gay marriage? Might that not supply prima facie grounds for a grievance later in a case involving the tenure of a young professor who was gay or lesbian? Would it not be argued that the situation was at least biased, or tilted, at the outset by the presence of that member of the faculty? Can we expect, then, certain pressures to separate those members of the faculty from decisions on tenure and hiring? And might it finally be best to remove the problem at the root simply by avoiding the hiring of people who bear these religious and moral sentiments, which the Supreme Court has now declared to be prejudicial? In sum, the Court has fashioned, in Romer v. Evans , a powerful new instrument for blocking from the academy and the professions people who are overly serious about their religion”which is to say, people who take seriously the traditional moral teachings of Christianity and Judaism.
Through a series of small steps there is produced, over time, a dramatic change. And now we find ourselves at the threshold of a situation in which a serious Catholic, in a law firm, can be seen as a source of liability, and may need to be quarantined. But the oddity is produced by the same trend of affairs that stamps the Christian Coalition, or the religious in politics, as aggressors. The question goes strangely unasked as to what it was that politicized these groups in the first place and brought them into politics. During the controversy over gay marriage, the surveys showed about 70 percent of the public opposed to that novelty. But the same surveys would reveal portions of the public, comparably large, recoiling from the very people who are inclined to force a public discussion of the issue. There may be atavistic moral reflexes, drawn from a Christian past, but they seem readily matched these days by the reflexes of a newer sensibility that is wary of anyone who seems judgmental. Gay marriage may seem wrong, but in the new scale of things there seems something harsh or tacky about the people who would argue about the matter in public. And so the political matrix: The judges advance the interests of gay rights at every turn, and those who resist them are labeled as the fanatics.
With the same dynamic, the Christian Right is tagged with the responsibility for unsettling our national politics by injecting the issues of abortion and school prayer. A former adviser to George Bush asks, earnestly, Can’t we just agree to get this issue (of abortion) out of national politics? And he was evidently taken aback when I said, Yes, we might make that deal”if by the national’ government you also mean the courts. For what was it, after all, that made abortion into a national issue? It was nothing other than the move of the federal courts to create a new constitutional right to abortion, and, in the name of that right, to sweep away all of the laws in the separate states that treated abortion as wrong. The federal courts have shifted the power to themselves as branches of the federal government, and politicized the issue at a new level of significance. Yet the people who would resist them are the ones who are condemned for bringing these divisive issues into our politics.
But this sense of the matter has taken hold precisely because the media and the public have absorbed the understanding put forth by the courts of the rights and wrongs of these matters. If there is something retrograde, something suspect, about making discriminations between forms of sexuality, then serious Christians and Jews instantly qualify as bigots. And the laws that forbid all manner of discrimination seem to emanate from a disinterested public ethic, suitably cleansed of any sectarian shading. The real question for us then is, How did we arrive at the state of affairs in which this sense of the world has been absorbed by a vast public in this country, which persists nevertheless in describing itself mainly as Christian and overwhelmingly as religious? On the question of euthanasia, the judges have quickly moved from the implausible to the unthinkable, inventing new rationales for ending the lives of people who were quite plainly alive and not dying at a decorous speed. On this matter, as on gay rights, there should have been more than enough to set off alarms for people whose sensitivities had been shaped by their religious traditions.
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.
Hadley Arkes is the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College and author of The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights (Princeton University Press).