Thursday, March 6, 2014

Same Sex Weddings and Discrimination

I usually complain about commentators who have been flogging the same dead horses for years.  The New York Times Op-Ed Page, say, can often seem like a veritable charnel house of decayed nags.  How can they stand, I wonder, saying precisely the same thing every day for decades?  Well, stones and glass houses and all that.  I now find I’m hardening into my own handful of redundant notions which I feel compelled to state and restate over again in modestly altered contexts.  It’s not that I enjoy repeating things—it’s torture.  Rather, I find each time after I’ve made a point that I made it with just slightly the wrong emphasis.  It struck just faintly a false emotional note.  Perhaps I spent a little too much time giving my adversaries their due before getting into my own argument, or not enough.  So I have to get back on the horse—the dead one, presumably.  There’s a good T.S. Eliot line about this, but I find I’ve already quoted that too—further indication of my shrinking repertoire.

Today I feel obliged to return to a point I made in December.  It has to do with a certain story that religious opponents of gay marriage have started to tell about themselves: that they are not "anti-gay"-- when perhaps only five years ago, they would have worn that label -- or some euphemism for it-- quite proudly.  Conor Friedersdorf, though he is not at all one of their number, repeats their story in a defense of a wedding photographer sued for discrimination:
"Insofar as I've found, nothing in the public record establishes that this Christian photographer is afraid of gay people, or intolerant of them, or that she bears any hatred toward gays or lesbians. [...] The facts of her case do suggest that she regards marriage as a religious sacrament with a procreative purpose, that her Christian beliefs cause her to reject same-sex marriage, and that her business discriminates against same-sex weddings because she believes wedding photography requires artistic efforts to render the subject captured in a positive light. She believes making that effort would be wrong."
Friedersdorf’s own stance and motives are not under suspicion here.  He is very much a proponent of LGBT equality and same sex marriage, writing that "refusing gay couples the right to marry is an indefensible abrogation of their rights—an attempt to deny them access to a core institution of social flourishing."  Friedersdorf simply wishes to give his adversaries the benefit of the doubt.  In this particular context, he is concerned with whether or not wedding photographers should be able to cite religious grounds as a legitimate reason for refusing to photograph same sex ceremonies.  He argues that they should have the right to do so, his reason being that opposition to photographing same sex weddings can’t just be chalked up to bigotry or hatred in all cases in a straightforward manner, but has religious (hence, legitimate?) bases.

I agree with Friedersdorf that one shouldn’t make sweeping generalizations about all gay marriage opponents being bigots.  I grew up surrounded by a lot of both, and while there was considerable cross-pollination between the opponents and the bigots (“It’s Adam and Eve, not Adam and Steve!” was considered a masterstroke of Joycean raillery at my Florida high school), they were more of a Venn diagram than completely overlapping circles.  And a few close friends who were then and remain religious opponents of gay marriage were also unusually brave at the time in standing up to homophobic prejudice.

But the issue here doesn’t concern so much the inner states of wedding photographers—the question is whether or not it is fair to same sex couples to allow businesses to discriminate against them simply because of their orientation, regardless of the reasons given or the, ultimately unknowable, motivations of those businesses.  It seems to me that it is not fair, and that the issue should be as clear-cut in this case as it would be in that of photographers who cited religious grounds for refusing to celebrate interracial marriages.

For same sex marriages to be recognized as full marriages, which celebrate a licit, societally-condoned love between two people, we can’t have an exception which allows businesses to refuse them the same services they grant to all other marriages.  Perched in the Northeast, or wherever it is Friedersdorf writes from these days, it no doubt seems as if the wedding photographers raising religious objections would be an irrelevant handful anyways, so why not let them do things their own way?  But there are parts of the country in which same sex couples would be left scrambling for sympathetic photographers and caterers in the run up to their weddings the way interracial couples or twice-married partners in the South used to move from church to church looking for a pastor willing to officiate, only to be told that there was no room at the inn.  Do we want to allow that in a free society?

Religious expression should enjoy protection, but not to any further extent than is afforded to all worldviews and systems of thought.  I take this to mean that all forms of speech should be guaranteed absolutely, but that the expression through deed of religious or ideological tenets must be limited when it threatens to infringe the more fundamental rights of others.  All kinds of religious groups, after all, would like to invoke religious freedom in defense of the infliction of the most profound unfreedoms--  read Lawrence Wright to hear the history of the Church of Scientology’s invocation of the principle, for instance, to cover up its illegal detention of internal critics and its grizzly labor practices -- and the U.S. government’s ignominious deference to its claims.  I'm not making a moral comparison here.  Those “pray the gay away” camps are hair-raising but they can't be attributed to any centrally-directed "anti-gay marriage movement" the way the crimes of Scientology stem from its leadership.  The point is simply that there are more basic rights which trump religious expression.  The right not to be discriminated against on the basis of a fundamental and unalterable feature of one’s identity would seem to be one of them.

But the larger point I want to make here concerns this story that has started to emerge in which gay marriage opponents have never been anti-gay.  Now, prejudice admittedly comes in different shades.  The “hate the sin, not the sinner,” perspective, say, is on a different moral plane altogether from the “hate the sin and the sinner” perspective.  But we can acknowledge this while still admitting that both are expressions of prejudice.  You cannot think that gay sex is a sin without being anti-gay.  Saying you are not anti-gay so long as gay people don’t have gay relationships is like saying you are not anti-black so long as blacks surgically bleach their skin.  Being in same sex relationships is a central expression and aspect of the basic identity that is being discriminated against.

Confusion on this point has been with us for at least the last ten years, however—more striking for its novelty is this idea that religious groups that oppose same sex marriage, like the Roman Catholic Church, only do so due to some nebulous “sacramental” objection having to do with ties between marriage and procreation.  This is flatly untrue.  If “procreation” were the sole concern at play here, the Roman Catholic church and others would have devoted equivalent resources to a crusade against geriatric marriages and the weddings of biologically sterile people.  “Sacramental” here is just a power-word meant to impress with its sonorous Latinity—throwing it around can’t force us to regard the belief as different in any qualitative way from other ideological objections groups raise to gay marriage, or as deserving of any special protection or consideration denied to those other objections.

Finally, to accept the religious opponents’ claims about their own recent history at face value is to ignore a basic principle of the dynamics of all polemics—and especially religious polemics.  It works like this: whenever a reformist ideological position is formulated, which aims at social change, a “traditionalist” position springs up to challenge it.  This is obvious enough.  What is often missed is the fact that the reformist position, even in cases where it is defeated by traditionalism, always manages to pose certain new questions to the former society.  The “traditionalist” position must respond to these questions, even when it rejects the reformist answers.  It is therefore indelibly altered and shaped by reformism, even as it opposes it.  In still more subtle ways, it often comes to mirror the reformist positions in its stated ideals, its deeper commitments, and its basic categories of thought.

"Traditionalism" is therefore most often not really “traditional” at all, in the sense of seeking a straightforward preservation of the past.  The chief characteristic of truly traditional and conservative societies, after all, is precisely their lack of ideology, their want of self-consciousness-- so different from the "traditionalist" thought-systems which spring to their purported defense.  Thus, the “traditional” Roman Catholicism of the Counterreformation was actually a creature of its own era, produced in part by the need to respond to Lutheran and Calvinist condemnation.  Modern-day “Conservatism” only came into being through Burke and others after the "Declaration of the Rights of Man."  Various 19th century Romantics who thought they were hearkening back to the Middle Ages were in fact entirely products of their own time and its characteristic concerns.  They objected to the age of industry and liberalism in terms that were entirely born of that same machine age.

There is nothing at all wrong, of course, with this sort of pseudo-traditionalism, so long as it is honest with itself.  I have no objection to criticizing a reformist or modernizing tendency in its own terms or for failing to live up to its stated ideals.  William Morris and John Ruskin and Bejamin Disraeli, say, were no doubt right to deplore the devastation of the countryside, and the proletarianization of the deracinated poor in those “dark satanic mills” Blake had warned against – even if they were deluded in thinking they were invoking "Medieval" or pre-industrial ideas in doing so.  This suggests that pointing out the somewhat self-contradictory nature of "traditionalist" ideology doesn't tell us a great deal about whether or not we should support it.  Historian Keith Thomas points out in Man and the Natural World, for instance, that the romanticization of the countryside only started in earnest once urbanization set in, which is interesting, but it is not clear how much it proves.  It could show that city life is not really any better than rural life, and that the idealization of the country is an expression of the proverbially eternal verdancy of the grass on the other side of the Enclosure hedge.  Or it might be evidence of another equally uncontroversial fact of human psychology: that we never know a good thing until we've lost it.  Simply pointing out that "rural ideology" surfaces in a counterintuitive time and place doesn't help us choose between these two possibilities.

But we do have to question just how old the “traditions” are to which "traditionalism" refers, and we have to raise our eyebrows well up our foreheads when some group speaking for the "traditionalist" wing of a religion claims that "We have always thought X".  Chances are that the “traditionalist” perspective on a given issue is every bit as new a creation as the “reformist” one—in fact, that in itself it bears the imprint of the reformist ideology.

Seldom have I seen this pilfering of reformist ideas by the “traditionalists” practiced as shamelessly as in religious polemics.  Time and again, the “Orthodox” have appropriated from heretics and non-believers the very arguments that these latter had originally urged against them.  At the start of the 19th century, for instance, the Orthodox clergy of New England’s churches preached unequivocally that human nature was absolutely depraved and that human beings possessed no free will due to predestination.  In this, they were only echoing central teachings of all sects and churches since Augustine.  Heretical groups, like the Unitarians and the Universalists, began challenging such teachings, however, in the name of the “dignity of human nature” and “free will”- concepts they particularly pressed in their suit against the doctrine of eternal damnation.  Fast forward 50 years, however, and you suddenly find Orthodox writers defending the teaching of eternal damnation because, they say, it is the only way to make room in theology for human “moral freedom,” which in turn is essential to the “dignity” of human nature—the very thing they had regarded half-a-century before as utterly devoid of value.

We can see many churches that have always opposed gay rights making a similarly disingenuous move today – invoking the value of gay relationships, when the recognition of that value is entirely alien to their history and was wholly adopted from the reformist perspective they are attacking.


Back to Friedersdorf: I suspect what is motivating him to make his argument is partly just his usual libertarianism and suspicion of the interventionist arm of government.  However, I imagine it also stems from an admirable unease with the harshness of the rhetoric that is emerging on the pro-same sex marriage side.  His argument is therefore likely to appeal to well-intentioned people of tolerant sensibilities.

And indeed, the more that support for same sex marriage becomes the accepted majority view in this country, the more religious opponents of gay rights will be threatened with various abrogations of their rights to free speech.  One might have supposed it would be the opposite -- that as we achieve our objectives, the temptation to violate the rights of our opponents will diminish.  But this would be to neglect certain propensities of human nature, such as the “Johnny-come-lately” phenomenon I have elsewhere identified.  Once a position becomes adopted by the majority of the population, it will attract all sorts of people to its banner who have no very grounded or sincere reasons for supporting it, but who embrace it out of a deadly combination of moral egotism and herd instinct.  They will therefore outdo one another to show the depth of their conviction to the newly-discovered cause—and the easiest, if the shabbiest, way of doing so is to sadistically persecute that cause’s few remaining critics.  One observes as evidence the Ourobouros tendency of all revolutionary cliques after taking power.  One can see it also in elite colleges and professional schools, where the tinier the range of actual disagreement over politics becomes, the greater quantity of venom and threatening language is expended over those remaining differences.

But the danger in all this does not come from anti-discrimination laws, which protect people’s basic access to the institutions of our society that make possible a full participation in our collective life.  Rather, the danger will come from pressures for hate speech codes and the dubious application of hate crime laws.  It will come from “zero tolerance” anti-bullying policies in schools that leave kids who mess up by saying or doing cruel things with no second chances.  The right to free expression of religious opponents of same sex marriage do need to be protected from such things.  However, there is no such thing as a "right to discriminate" that needs to be similarly recognized.


One final thought is this: religious opponents of gay rights may become a minority in the U.S. in the near future, but we don't just live in the U.S.-- we live in a global society in which LGBT people are increasingly becoming the international pariah class of choice for autocrats and demagogues to scapegoat.  There are the egregious cases of state-sanctioned atrocities in Uganda, for instance.  There is Russia's notorious homophobic legislation, as well as recent laws passed in India that criminalize homosexuality.  LGBT activists played a major role in the recent uprising in the Ukraine, leading Moscow to surmise a gay (and perhaps Jewish) conspiracy at work behind the scenes.  Jews and gay people have always been convenient targets for nationalistic despots (the new government in Ukraine might well turn on them too, therefore-- we will need time to judge its character).  Both groups are seen as internal aliens, perceived as "rootless," "cosmopolitan," and as a chiefly urban phenomenon-- hence potential pockets of disloyalty to the Volk.  The gallows humor implicit in the case of the Ukraine, however, as Timothy Snyder points out in the article linked above, is that Putin has also been accusing the Ukraine of embracing a "Nazi" government -- when Jews and gay people were two of the groups Hitler tried to eradicate from existence.

Between Putin and most ordinary critics of same sex marriage in the U.S., there can be no moral comparison.  The latter are not persecutors, and a fair number of them are not even guilty of prejudice or ill feeling toward LGBT people.  (A close friend from Florida has long been a critic of same sex marriage, but he stated unequivocally that Rick Perry lost his vote when he came out with that hate-mongering ad about "gays in the military.")  However, the increasing scapegoating of gays, lesbians, transgender people, and others abroad can provide a salutary reminder to us of just how fragile tolerance is -- and how easily benign-seeming allowances for modest discrimination can pave the way for greater evils.

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