One of the more intractable aspects of sexual politics today for conservatives and traditionalists is the emergence of the courtroom as the setting for policy and practice. Even when they have a democratic majority, not to mention centuries of sexual-marital mores on their side, the contrary will of one-to-five politically-appointed individuals can prevail. Of course, judicial activism is an old problem, undemocratic and arbitrary, placing monumental decisions in too few hands. But there is another problem, an indirect one that follows precisely from critics taking seriously the courtroom’s power. We could call this problem the “legalization” of debate, meaning not whether something is legal, but instead the conversion of moral, social, religious, and other dimensions of an issue into legal, or legalistic, terms, or at least the neglect of them because of a focus on what the judges will say.

 Lawyers and judges have always spoken that language as a professional duty, and now that the court has become the decider of so many things, discourse increasingly gives the impression that the legal determination of same-sex marriage, religious liberty, and other conflicts is the crucial one, not their historical development, moral nature, and so on. In his vigorous outline for the defense of marriage, published in National Review in May, for instance, Ryan Anderson chooses as the first step, “Stand Up for Our Authority as Citizens and Pass Laws Reflecting the Truth about Marriage.” I just went to the Family Research Council’s “Issues” page and found the lead statement under Marriage and Family, entitled “Why Do Courts (and the Media) Ignore Federal Precedent on Marriage?” It notes how recent court decisions on marriage mistakenly neglect a pro-traditional marriage decision issued in 2006, but keep the discussion solely in legal terms.  A better treatment would have downplayed the legal side and answered, “Judges skip it because our elite culture wants them to.”

But however forceful those legalistic arguments may be, it is important not to underappreciate a critical fact: Most people don’t regard the issues that way. Even when a legal controversy is the occasion for debate, most people respond by connecting it to things they already know—not the law and the circumstances of the case, but experiences they’ve had, people they’ve met, movies and TV shows they’ve watched. They form judgments through past exposures more or less dimly related to the dispute, but which live on as half-remembrances and vague impressions that nonetheless have shaped values and steered beliefs.

 When it comes to issues of sexuality, in particular, a human dramatization has affected them more than a legal argument, or any other kind of argument for that matter. I would bet that the gay neighbor in the 1999 film American Beauty, who, it is implied, loves guns, collects Nazi trinkets, and turns to murder all because he represses his own urges, formed more people’s views about how to regard homosexuals than did the entire decade’s research into psychosexuality by the whole scientific community. The film gave a human face to a social condition, showing a troubled gay husband and father acting out the costs of denying one’s own same-sex desires.

When people hear about a judge ruling on a state law forbidding same-sex marriage, then, they don’t care much about the text of the statute or ponder the litigants’ reasoning. No, they weigh the parties by their human traits. Or rather, they fit the parties to human representatives they have encountered before: the gay character in the sitcom, Lady Gaga’s LGBT activism. . . . They apply standards, yes, but less to principles, procedures, historical backgrounds, and political effects than they do to individuals they can identify as at stake in the outcome.

In our current moment, when it comes to sexual controversies, one standard in particular stands out, and it’s not a legal one: victimhood. When people read a newspaper or watch the nightly news and hear about a Colorado baker refusing his services to a gay couple, the letter of the law and the dogmas of his church count less than the determination of which individuals suffer more from the law. When a lesbian couple asked a New Mexico photographer to photograph their wedding and the photographer declined for religious reasons, a legal process ensued with briefs and hearings and arguments, but in the Court of Public Opinion, a simpler process unfolds: which result hurts most, the lesbians made to leave or the photographer forced to ignore a dogma? Who’s the bigger victim?

 This explains why a majority in a state will vote to preserve traditional marriage, but not protest when a same-sex couple wins a suit challenging it. The proposition on the ballot appeared in clipped words and implied an abstract value, while the legal case presented two human beings with lives and feelings at stake. Traditionalists dismayed by judicial activism in this area should keep that criterion in mind when making arguments against it. The law is one thing, human faces another. The situation marks a clash of legal claims and religious beliefs, but also a contest of victimhood. However much they deplore the game of “bigger-victim,” defenders of marriage must take this theater into account and dramatize the plight and pain of a principled believer forced to disobey the Church. Until the New Mexico photographer, the Colorado baker, the Pennsylvania bridal shop owner, the California caterer, and others who refuse to participate in same-sex weddings for religious reasons appear as or more victimized than the customers they decline to take on, legal arguments won’t much help.

Mark Bauerlein is senior editor of First Things.

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Articles by Mark Bauerlein

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