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).