The Terms of Our Surrender
By Ross Douthat
IT now seems certain that before too many years elapse, the Supreme Court will be forced to acknowledge the logic of its own jurisprudence on same-sex marriage and redefine marriage to include gay couples in all 50 states.
Once this happens, the national debate essentially will be finished, but the country will remain divided, with a substantial minority of Americans, most of them religious, still committed to the older view of marriage.
So what then? One possibility is that this division will recede into the cultural background, with marriage joining the long list of topics on which Americans disagree without making a political issue out of it.
In this scenario, religious conservatives would essentially be left to promote their view of wedlock within their own institutions, as a kind of dissenting subculture emphasizing gender differences and procreation, while the wider culture declares that love and commitment are enough to make a marriage. And where conflicts arise — in a case where, say, a Mormon caterer or a Catholic photographer objected to working at a same-sex wedding — gay rights supporters would heed the advice of gay marriage’s intellectual progenitor, Andrew Sullivan, and let the dissenters opt out “in the name of their freedom — and ours.”
But there’s another possibility, in which the oft-invoked analogy between opposition to gay marriage and support for segregation in the 1960s South is pushed to its logical public-policy conclusion. In this scenario, the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter, and face fines or lose his business — which is the intent of recent legal actions against a wedding photographer in New Mexico, a florist in Washington State, and a baker in Colorado.
Meanwhile, pressure would be brought to bear wherever the religious subculture brushed up against state power. Religious-affiliated adoption agencies would be closed if they declined to place children with same-sex couples. (This has happened in Massachusetts and Illinois.) Organizations and businesses that promoted the older definition of marriage would face constant procedural harassment, along the lines suggested by the mayors who battled with Chick-fil-A. And, eventually, religious schools and colleges would receive the same treatment as racist holdouts like Bob Jones University, losing access to public funds and seeing their tax-exempt status revoked.
In the past, this constant-pressure scenario has seemed the less-likely one, since Americans are better at agreeing to disagree than the culture war would suggest. But it feels a little bit more likely after last week’s “debate” in Arizona, over a bill that was designed to clarify whether existing religious freedom protections can be invoked by defendants like the florist or the photographer.
If you don’t recognize my description of the bill, then you probably followed the press coverage, which was mendacious and hysterical — evincing no familiarity with the legal issues, and endlessly parroting the line that the bill would institute “Jim Crow” for gays. (Never mind that in Arizona it’s currently legal to discriminate based on sexual orientation — and mass discrimination isn’t exactly breaking out.) Allegedly sensible centrists compared the bill’s supporters to segregationist politicians, liberals invoked the Bob Jones precedent to dismiss religious-liberty concerns, and Republican politicians behaved as though the law had been written by David Duke.
What makes this response particularly instructive is that such bills have been seen, in the past, as a way for religious conservatives to negotiate surrender — to accept same-sex marriage’s inevitability while carving out protections for dissent. But now, apparently, the official line is that you bigots don’t get to negotiate anymore.
Which has a certain bracing logic. If your only goal is ensuring that support for traditional marriage diminishes as rapidly as possible, applying constant pressure to religious individuals and institutions will probably do the job. Already, my fellow Christians are divided over these issues, and we’ll be more divided the more pressure we face. The conjugal, male-female view of marriage is too theologically rooted to disappear, but its remaining adherents can be marginalized, set against one other, and encouraged to conform.
I am being descriptive here, rather than self-pitying. Christians had plenty of opportunities — thousands of years’ worth — to treat gay people with real charity, and far too often chose intolerance. (And still do, in many instances and places.) So being marginalized, being sued, losing tax-exempt status — this will be uncomfortable, but we should keep perspective and remember our sins, and nobody should call it persecution.
But it’s still important for the winning side to recognize its power. We are not really having an argument about same-sex marriage anymore, and on the evidence of Arizona, we’re not having a negotiation. Instead, all that’s left is the timing of the final victory — and for the defeated to find out what settlement the victors will impose.
It boggles my mind to think any Christian should want the government to force their [pro-gay] view of Christianity on another believer.
That’s my feeling too. I would never want to coerce any fundamentalist to provide services for my wedding – or anything else for that matter – if it made them in any way uncomfortable. The idea of suing these businesses to force them to provide services they are clearly uncomfortable providing is anathema to me. I think it should be repellent to the gay rights movement as well.
The truth is: we’re winning this argument. We’ve made the compelling moral case that gay citizens should be treated no differently by their government than straight citizens. And the world has shifted dramatically in our direction. Inevitably, many fundamentalist Christians and Orthodox Jews and many Muslims feel threatened and bewildered by such change and feel that it inchoately affects their religious convictions. I think they’re mistaken – but we’re not talking logic here. We’re talking religious conviction. My view is that in a free and live-and-let-live society, we should give them space. As long as our government is not discriminating against us, we should be tolerant of prejudice as long as it does not truly hurt us. And finding another florist may be a bother, and even upsetting, as one reader expressed so well.
But we can surely handle it. And should.
Leave the fundamentalists and bigots alone. In any marketplace in a diverse society, they will suffer economically by refusing and alienating some customers, their families and their friends. By all means stop patronizing them in both senses of the word. Let them embrace discrimination and lose revenue. Let us let them be in the name of their freedom – and ours’.
SoRo: Will gays become everything that they claimed to hate in others? Will they become homosexist Nazis? Will they and their supporters demand compliance and conformity with the tenets of their 'religion'? Henry VIII, Bloody Mary, and Oliver Cromwell tortured and murdered those that believed in a faith other than theirs. Will this end similarly or have we learned the lessons which gave rise to this great country?
By the way, as much as I despise the first two, I am considering representing some Neo-Nazis, white supremacists, vocal traditional marriage supporters. Let's see how the LGBTQQIAAP community feels about having to photograph a Neo-Nazi wedding (they really do exist)? How would Cat Cora, a lesbian, feel about baking the wedding cake for a couple, who insisted that it say 'One Man, One Woman, The Only True Marriage'?
Think about it: How would Sylvia's in Harlem feel if it were forced to host a white supremacist gathering? How would a Holocaust survivor, who creates wedding cake works of art, feel if she were forced to bake a cake for the despicable couple above or face a lawsuit and possibly fines because she discriminated against them in refusing? How would any baker feel if Heath Campbell placed an order for five birthday cakes for his children: Adolf Hitler Campbell, JoyceLynn Aryan Nation Campbell, Honszlynn Himmler Jeannie Campbell, Heinrich Hons Campbell, and Eva Braun Campbell - to be festooned with swastikas? Shouldn't a baker have a right to decline without the fear of a lawsuit or government sanction?
As a lawyer, I decline to accept cases routinely. Sometimes, it is the facts of the case, but, other times, it is the client. I have to work with him or her and, if I feel as though that will be impossible, then Ihave a right to 'discriminate' by not accepting the matter. I have never nor would I decline based upon skin colour, religion, sexual orientation, etc, but I have refused for many other reasons, including body odor (!) and the failure to actively participate in the discovery process. Should I be sued for discrimination?
While I am in favour of SSM, I will always defend the religious and their right to practise over-and-above SSM even though I happen to be an atheist.