There are many reasons why America seems to be moving inexorably toward legalizing same-sex marriage. The Sexual Revolution that has swept American society since the 1960s is probably the main explanation. There’s plenty of evidence that Americans, especially Americans below a certain age, accept the Sexual Revolution’s basic premise that sex is a harmless pleasure without much moral content, at least when it does not involve coercion or, sometimes, adultery. Divorce, once seen as a traumatic, though perhaps necessary, last resort for very troubled marriages is no longer regarded as an exceptional event. People speak without irony of “starter marriages;” fewer and fewer people marry at all. And these cultural changes are not limited to the Secular Left. An Evangelical pundit got in trouble recently because, he said, he didn’t realize that being engaged to one woman while simultaneously being married to another was frowned upon in Christian circles.
Given their views about sexuality and marriage, SSM seems to many Americans a non-issue. But there is something else at work, too. Much of the success of the campaign for SSM has to do with supporters’ adoption of the language of civil rights. In our national discourse, the phrase “civil rights issue of our time” immediately suggests SSM; last week’s NYT editorial is a good example. As a rhetorical device—and I don’t mean to suggest that SSM advocates are being insincere—this is a brilliant strategy. In American politics, a group that can successfully appropriate the language of civil rights is bound to win.
That’s why I was struck recently when I saw that Rick Warren, perhaps the most influential Evangelical pastor in America today, has adopted this language on behalf of conservative Christians. In an interview about the ACA’s contraception mandate, Warren called religious liberty “the civil rights issue of the next decade.” He was echoing, among others, the Conference of Catholic Bishops, which has also emphasized the civil rights aspect of resistance to the mandate. This is a very shrewd rhetorical move—and, again, I don’t mean to suggest anyone is being insincere. If religious conservatives are going to prevail on issues like the contraception mandate, they can’t hope to persuade people on the merits of traditional sexual morality, much of which the American public now finds incomprehensible. They will have to persuade people that they represent the advance of civil rights.
Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.
December 11th, 2012 | 10:08 am
First Amendment “free exercise” right are civil rights, so it doesn’t take any great political savvy to cite them as such. I know almost everyone disagrees with me, but I foresee the contraceptive mandate being settled to everyone’s satisfaction by the implementation date.
Rick Warren says of the Mandate:
If this is the best “one of the most influential evangelical pastors” can come up with, perhaps we ought to be auditioning some new candidates for evangelical pastors. It’s a lame analogy. Orthodox Jews or other Jews who abide by Jewish dietary restrictions don’t consider them binding on other people. Orthodox Jews are not forbidden to sell pork to people who want to eat pork. If they ran a deli or a restaurant, they would have to keep the kosher and non-kosher foods entirely separate.
There is, of course, a real issue in Catholic organizations not wanting to provide insurance that will include contraceptive coverage, but the American Bishops are muddling the message. Do they object because contraception is wrong for everybody? If so, they should be opposed to any insurance covering contraceptives, and they should be opposed to the manufacture and sale of contraceptives. Instead, they frame their opposition more as the right of Catholics to opt out of legal requirements they find objectionable, and they argue that everybody can get contraceptives who wants them, they aren’t trying to keep people from using contraceptives, they just want to keep their own hands clean.
December 11th, 2012 | 10:31 am
This is a very shrewd rhetorical move…
I dunno, the pro-life cause has been beating this drum on behalf of the unborn for quite some time, and it doesn’t seem to have worked for them.
Of course, they don’t have a constant stream of messages emanating from the television on their behalf — quite the opposite, actually.
December 11th, 2012 | 10:40 am
Aha. Now we begin to understand one application of Matthew 10:16:
Behold I send you forth as sheep in the midst of wolves; be ye therefore wise as serpents and harmless as doves.
December 11th, 2012 | 2:17 pm
No can do, Mark. It’s not easy to see, but if you look hard at the words “Civil Rights” you’ll notice a little “TM” floating alongside.
I get the feeling the trademark is owned by the New York Times, and can only be used with their permission and approval. Rick Warren need not apply.
December 11th, 2012 | 3:56 pm
Good post and I accept the points, but Mark Mousesian makes a critical concession in this post also relating to language. I saw the same concession earlier today in this Email from the Manhattan Declaration:
The Manhattan Declaration describes the question before the court as one of whether or not the government can ban a type of marriage, which they refer to as “same-sex marriage.”
Using the term “same-sex marriage” (1) acknowledges that same-sex marriage is a type of marriage, and (2) since they are against it they say they want the government to ban that type of marriage.
Both 1 and 2 are major and unnecessary concessions, and they misconstrue the position of opponents.
The reason we are against redefining marriage is because the government does not have the authority to redefine the very natural rights it was created to protect. In other words, the debate is whether or not the government can and should redefine marriage, which is much more persuasive ground than saying you support a government ban on a type of marriage.
When the Manhattan Declaration talks about “same-sex marriage” they hand a very powerful argument over to the other side. The moment they say “same-sex marriage” it’s the other side that can point at them and say they want to turn marriage over to the government so that the government may ban a type of marriage. Neither of which are true nor helpful.
If I worked at the Manhattan Declaration, here is how I would have written this morning’s Email:
December 11th, 2012 | 4:00 pm
I want to make one more point to add to my last comment about the concession we make when we use the words “same-sex marriage” or “gay marriage.”
What do you think the impact would have been if instead of calling themselves “Pro-Life,” abortion opponents had called themselves “Anti-Choice” for the last forty years?
December 11th, 2012 | 4:43 pm
When the Manhattan Declaration talks about “same-sex marriage” they hand a very powerful argument over to the other side. The moment they say “same-sex marriage” it’s the other side that can point at them and say they want to turn marriage over to the government so that the government may ban a type of marriage. Neither of which are true nor helpful.
Douglas Johnson,
Eleven countries and at least nine states in the US recognize same-sex marriage. Refusing to use the words won’t make it go away. As I have said many times, I don’t believe anyone (even the Manhattan Declaration) denies that those who enter into same-sex marriages in those countries and states where it is recognized would claim the same-sex couples are not legally married.
If it were subject to legal proof that “same-sex marriage” was a contradiction in terms and no such thing could exist, surely the ant-SSM forces would attempt to put forward such proofs. If they could get the Supreme Court to declare same-sex marriage simply impossible, surely they would make the attempt, winning the whole battle in one fell swoop. But the fact of the matter is that no matter how many times people insist that there is no such thing as same-sex marriage, there are eleven countries and nine states where thousands of same-sex couples are legally married. It’s just a fact. You can’t deny it. You don’t have to like it, and you can try to stop the trend or reverse it. But you can’t simply declare that same-sex civil marriage doesn’t exist, because it obviously does.
December 11th, 2012 | 5:37 pm
David Nickol,
Your arguments have been addressed and put to bed so many times on this website alone it would be almost impossible count. If anyone who truly opposes the redefinition of marriage would like to hear a response to what David Nickol has written, please let me know. Otherwise, David, just comb through years of previous posts where you wrote the same thing and had it answered countless times.
December 11th, 2012 | 6:26 pm
David Nickol,
I am going to quote what you just wrote and change just a word or two:
December 11th, 2012 | 7:25 pm
“It’s a lame analogy. Orthodox Jews or other Jews who abide by Jewish dietary restrictions don’t consider them binding on other people. Orthodox Jews are not forbidden to sell pork to people who want to eat pork.”
maybe he could have said Moslems instead of Jews. Moslems seem to object to handling pork (and alcoholic products, lottery cards, pornography, etc.). Also, maybe it would be a better analogy to say the Moslem employer must provide—not sell—lottery cards, or bottles of wine, or rashers of bacon to their non-Moslem employees.
http://www.sistani.org/index.php?p=616687&id=1133
December 11th, 2012 | 8:13 pm
peg,
Why come up with lame analogies when the real issue can be discussed?
And it is not a question of Jews, Muslims, Catholics, and so on being forced to do something. It is a question of a generally applicable law binding on everyone, and (in the case of the contraceptive mandate), Catholics want to be exempt from obeying the law.
Any law that ordered Muslim, or Jewish, or Catholic employers to do something they objected to would be discriminatory. The contraceptive mandate requires all employers to comply, and the question is one of religious exemption.
My point remains that Rick Warren framed the issue in a manner that wasn’t insightful or helpful. It was, in fact, silly. Most people writing in this forum on either side could frame the issue better than he chose to. The question is whether that is actually the depth of his thinking, or whether he actually knows the answer he gave is silly but thinks it is the most helpful to him in staking out a position. I can’t even begin to guess which it is.
December 12th, 2012 | 12:51 am
“Catholics want to be exempt from obeying the law.”
Actually, it’s a regulation, and there’s a difference.
We’ve never allowed conscientious objections.
Of course, it’s not just Catholics (nice try at Alinsky-isolation, but you’re busted). There’s another thread about Mennonites filing suit on this very site.
It is rather amazing to see Anabaptists and Catholics in agreement.
December 12th, 2012 | 6:04 am
I think Americans instinctively support religious liberty. The difficult line concerns what counts as genuine religious liberty. People have turned against atheists who are still trying to remove all Christmas spirit from Christmas, but they have turned also on conservative Christians who try to pass off as religious liberty what is really religious intrusion.
December 12th, 2012 | 6:45 am
Douglas Johnson
” whether Congress may withhold federal benefits from state governments that have legally redefined marriage (Defense of Marriage Act).”
Is not the question rather, “whether Congress may withhold federal benefits from couples that have legally redefined marriages (Defense of Marriage Act).”
David Nickol
Any country, or, presumably, state, when faced with a union entered into in another jurisdiction, between parties who are not its citizens is entitled to ask whether this union is a marriage, as that term is used and understood in its domestic legislation? Thus, the courts of Germany have held that the relationship that exists between a man and the ladies living under his protection in a polygamous union is different in kind to the relationship of husband and wife, as defined in the Bürgerliches Gesetzbuch.
Words have meaning, only in the social context in which they are employed, leading Wittgenstein to remark, “If a lion could talk, we could not understand him”
December 12th, 2012 | 7:13 am
David Nickol considers disassembling the noble and sturdy pillar of religious freedom, which allowed for a certain “rainbow” of religious expression (alongside an unwritten cultural tradition of kindliness and understanding) that has historically been an identifying mark of the American freedom, perfectly reasonable.
Religious traditions of the Amish for instance; the Quakers for another; American Indians for another, and others have been “tolerated”. Only a most serious objective of civil law – such as say a prohibition against torture or slavery – brought forth government coercion and penalty.
Although the argument of Pastor Warren is not sophisticated, it seems simple enough to understand: He believes in the sanctity of each human life. He is a committed Protestant Christian. He has learned the Ten Commandments – “Thou shalt not kill.”
By fiat of the Department of Health and Human Services, his church will be forced to provide drugs that can cause death to a developing fetus (or “baby” if you are a member of the British royal family). He is seeking redress under the “civil rights” that were formerly our common practice.
December 12th, 2012 | 8:23 am
Yesterday I mostly brushed off the old David Nickol trope that “gay marriage” is marriage, which has been a favorite comment of his for many years now (as if the whole debate was about something else).
Because of the natural rights foundation of this debate, Abraham Lincoln often provides the best catalogue of arguments from which to draw.
When one stumbles across a fellow who wants to insist that gay marriage is marriage because he just said so, or because a government said so, Lincoln’s dog argument is worth remembering.
Abraham Lincoln was fond of asking, “If you call a dog’s tail a leg, how many legs does a dog have?” “Five,” his audience would invariably answer. “No,” he would politely respond,” the correct answer is four. Calling a tail a leg does not make it a leg.”
As Joe Carter describes below, we have two options to chose from, and that is what the whole fight is about.
But just don’t make the mistake that redefining marriage, like slavery, is a small issue limited in scope. I always marvel at some Republicans who think they can shrug their shoulders at social issues. “Let me get this straight,” I always ask, “you are saying that if we let the government redefine marriage, the foundation of all life, and even life itself–if we wave a white flag on those issues–then you’re saying it’ll turn government into our lap dog when it comes to marginal tax rates?”
December 12th, 2012 | 9:40 am
Clearly, a law that was designed to restrict individuals in the exercise of their religion would infringe the First Amendment.
However, it is not clear that a law designed, not to restrict religious beliefs, but in order to exclude their intervention in, or impact on, the relations between private individuals and public authorities, would do so. Thus, a law requiring all motor cyclists to wear crash helmets on the public roads, would not infringe the First Amendment rights of Sikh men, whose religion requires them to wear a turban. As the Supreme Court held in Reynolds, “to permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
After all, if the laws are not the same for all, whether they protect or punish, how is the republic one and indivisible?
December 12th, 2012 | 10:15 am
Michael PS,
Hmm. I’m not sure what you mean.
The fight is over the government redefinition of marriage. It doesn’t really matter if individuals attempt to redefine it, and there’s nothing that can (or should as far as I can tell) be done about that. For instance, say the year is 1960 and Bob and Dave suddenly decide to start telling everyone that they are married. So what, right?
But I may be missing your point.
December 12th, 2012 | 10:29 am
Yesterday I mostly brushed off the old David Nickol trope that “gay marriage” is marriage, which has been a favorite comment of his for many years now (as if the whole debate was about something else).
Douglas Johnson,
My point is that when a state or a country legalizes same-sex marriage, and two men or two women fill out the appropriate paperwork and go through the appropriate ceremony in that state or country, they are legally married in that state or country. It appears to be your argument—and I am sure you will correct me if I am misunderstanding you—that all same-sex marriages are null and void because government does not have the authority to recognize or legislate an impossibility. Since you claim same-sex marriage is an impossibility, those same-sex couples who marry in jurisdictions where same-sex marriage is legally recognized are not (legally?) married.
If that is your understanding, I believe you are not merely wrong, but also not making the same anti-SSM arguments as the vast majority of others who oppose same-sex marriage.
December 12th, 2012 | 10:37 am
Michael PS,
After posting my last comment I requested the moderators to not post it because I misread what you were saying. They posted it anyway. I see what you are saying now. No need to respond to my 10:15 post.
December 12th, 2012 | 11:33 am
David Nickol,
Nothing is stopping the government from writing a law for universal womanhood such that henceforth all mankind will have the option to be legally recognized as a “woman.” Yes, it would be perfectly legal. And yet, a man would still not be a woman even though the government just passed a law saying just the opposite.
But I just said the exact same thing in my 8:23 post.
December 12th, 2012 | 11:53 am
David Nickol,
You’ve been struggling with this point for a long time. Please read Joe Carter’s comments again.
I am saying that the government does not have the authority to redefine marriage. If a state does something it doesn’t have the authority to do, that action doesn’t suddenly bestow that authority upon it.
During the Civil War some argued that government does not have the authority to say certain types of men are slaves. The fact that some state governments did that very thing doesn’t mean that government has the legitimate authority to declare you a slave if it chooses.
Your argument boils down to this:
“Something is so if the government says it’s so.”
Here is my argument:
“There are things that the government does not have the authority to do.”
My argument is the foundational understanding of unalienable rights. Your argument treats government as the highest possible authority.
Do you see what I mean when I say you aren’t even really arguing with me?
December 12th, 2012 | 2:06 pm
Douglas Johnson
To take your illustration of slavery, granted the government had no right to sanction slavery, nevertheless, the institution of slavery did exist, as a legal, social and economic status. It was more than a case of government fiat; it was part of the social fabric and ramified into every aspect of its life.
In the same way, in Belgium, for example, a same-sex couple may possess the legal, social and economic status of spouses. That is the way that Belgian society and its institutions is currently structured.
Should they take up residence in France, it is a question for that country to decide how far the rights and obligations created by Belgian law are to be recognized and enforced in France. The same would have been true in 1860, if an american slave owner had brought one of his slaves with him into France.
December 12th, 2012 | 3:16 pm
Michael PS
I hear what you are saying, but let me address this:
If you are referring to the Confederate States only as I assume you are, then yes, that’s mostly true (but even then only to a certain extent, see below). If you are referring to the country as a whole, then it is not true.
Before the political trajectory of the country toward crisis became clear, your average southerner would say that unalienable rights referred to the rights of individuals. As the debate boiled John Calhoun emerged as the leading polemicists for the Confederacy and he argued that the founders did not mean to confer rights to individuals but only to the states. (Others in the South disagreed with Calhoun on that point.)
Before the political crisis, I doubt many southerners maintained that the rights referred to in the Declaration did not apply to themselves as individuals (probably not even Calhoun!). But Calhoun correctly identified a contradiction between slavery and the country’s founding that he had to resolve. Calhoun knew he had to resolve this contradiction not only to answer the North, but also as an answer to most white Southerners who likely believed that the rights discussed in the Declaration applied to them as individuals at the very least.
So I would say that because of that contradiction you have to stop short of saying that slavery was ramified into every aspect of the social fabric. Otherwise no such contradiction would exist. Also, there were major fears naturally arising out of the ideals of the Declaration and Christianity that if slaves concluded that “all men” meant “all men” then they could have a rebellion on their hands.
But to your point that slavery was the law and that the law was enforced, there’s no debate about that.
December 12th, 2012 | 3:29 pm
Michael PS,
Bit of a side note, but John Calhoun believed that Jefferson thought slavery wrong. Jefferson Davis said Jefferson was not anti-slavery and Davis argued that “community independence” was synonymous with “all men created equal.” Alexander Stephens (and Taney) argued that Jefferson and the founders believed “all men” referred to “all men,” but since the time of the founding science had made clear that such was not the case.
December 12th, 2012 | 4:00 pm
I did not mean all Southerners thought slavery legitimate; I mean that it was part of the fabric of everyday life, of commercial, social and domestic life, not just a feature of the legal code.
In such a context, to say, “That man is not a slave, but a free and equal citizen,” would have appeared, even to an abolitionist, as incoherent
December 12th, 2012 | 4:26 pm
Douglas Johnson,
If the United States only thought it had the legal institution of slavery, but in reality no such thing as legal slavery existed, then why did Lincoln issue the Emancipation Proclamation and why did congress pass the 13th Amendment prohibiting slavery? How can you prohibit something that doesn’t exist? By your thinking, congress should just have issued a clarification that there was no such thing as slavery, that government had no powers to make laws supporting and regulating slavery, and there had never been any slaves, since people cannot really be owned.
My point is that the United States had legal slavery prior to the Civil War. Clearly the government considered itself (and the citizens considered the government) to have the authority to make laws regulating slavery, to permit slavery in some new territories, to prohibit it in others, and so on. When the anti-slavery side won, they passed laws against slavery. You don’t pass laws against things that don’t exist.
December 12th, 2012 | 4:30 pm
Michael PS,
I’m trying to understand what you see as the difference between what you are saying and what I am saying.
Perhaps another analogy I brought up recently will help to clarify. I said that New York State could pass a law declaring that all NY residents were legally recognized as being born on Mars. They could use whatever means they wish to enforce that legally recognition. It would get so much publicity that everyone in the nation would know the state of NY regards all legal residents as Martians. All that squares with what you are saying. But they aren’t really Martians.
The state would be saying that they have their own definition of what “born on” means that is different from the meaning in most other states. Fine. They still aren’t Martians.
December 12th, 2012 | 5:34 pm
Douglas,
“The state would be saying that they have their own definition of what “born on” means that is different from the meaning in most other states. Fine. They still aren’t Martians”
We already have laws quite similar to this in adoption. Some states replace the child’s birth certificate with a new one that declares the adoptive parents to be the real parents. The original birth certificate is locked away as if it did not exist.
As you would put it, everyone “knows” that the child is not the parents’, but everyone acts if the child is.
December 13th, 2012 | 12:32 am
David Nickol wrote:
I’ve tried twice to post a comment on this and the FT intern/censors would not post it, for what reason I have no idea. I’m not going to give this one much thought because it’s no longer worth the time.
Suffice it to say that your argument is premised on your belief that I had no idea that slavery was ever legal in the United States.
I noted in one of my previous attempts that last week when I said your comments take up 80% of the bandwidth on First Things, you replied that it would not be possible for you to take up 80% of the bandwidth even if you wrote 80% of the actual comments. I’m realizing now how revealing that comment of yours truly was.
Apparently you are allowed to say certain things like this but no one is actually allowed to respond to the things you say. I assume this one will be censored as well. Who knows.
December 13th, 2012 | 4:16 am
Douglas Johnson
I think it is really a question of language and meaning.
The word “marriage” used to refer to an institution that was more or less the same throughout Christendom and it was taken for granted that those couples who were married anywhere would be treated as married everywhere.
The word “marriage” was also used to describe analogous unions, such as polygamous marriages, so widespread in other cultures.
Where SSM has been introduced, the social context in which the word “marriage” will change and the word’s meaning will inevitably change with it.
Note how we now have the new verb « Pacser » meaning to enter into a PACS or civil union.
December 13th, 2012 | 11:05 am
Michael PS,
There are a number of Michael’s on First Things, some of which are diametrically opposed to one another but I can never remember who is who and so when a Michael starts writing I am afraid I often just skip the comments because it’s too much work for me to remember where he’s coming from.
So if you can please help me out, are you one of the Michaels that believes the redefinition of marriage is a good, or at least indifferent thing, or are you the Michael(s?) that regards it as catastrophic in nature?
December 13th, 2012 | 11:25 am
I strongly oppose the redefinition of marriage.
So far as I am concerned, the primary purpose of civil marriage is to establish the juridical bond between father and child (filiation) and its functional definition is to be found in the rule that “the child conceived or born in marriage has the husband for father.” Accordingly, marriage is irrelevant to same-sex couples.
December 13th, 2012 | 5:09 pm
Michael PS,
I wanted to respond to you before you gave up on this thread. I started writing a long response to all this this morning but I ran out of time.
I wrote a pretty average-length comment recently but FT didn’t post it. As I am a donor, I called FT and asked them why they didn’t post the comment. I was told it was too long, but then they later posted it.
Anyway, the comment I started to write is longer yet so to ensure you actually see it, would you mind checking this discussion board over the next day or two. I just started this thing so there are no members yet. When I finish my comment I’ll put up a thread with your name on it. Thanks!
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