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.
Erick Erickson Has A Point
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.
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