Writing Division Into Law

It appears that tomorrow will see the beginning of legally recognized “marriage” between persons of the same sex. If this arrangement is given the force of law throughout the country, it may very well be seen by history as the point where the deep and bitter division in American society which we call the culture war became once and for all irreconcilable. Or perhaps I should say recognized as irreconcilable, for it may already be so. This will be a tragedy, and like all tragedies all the deeper for having been preventable. The thing which might yet prevent it is federalism. If the Supreme Court acts prudently and declines to enforce the requirement that same-sex unions be recognized in all fifty states, a tenable live-and-let-live compromise may be effected. If not, the more conservative segment of the population, which believes that marriage is by definition impossible between a man and a man or a woman and a woman, and which is in the majority by a significant margin, may find it difficult ever again to look at law in the same way.

Much of this has already come to pass, of course, in the abortion debate. Had the Supreme Court been willing to allow a federalist solution in that case, a conflict barely less severe than that of the Civil War would never have divided the nation so deeply. For Christians and others who believe in certain moral definitions held by most people fifty years ago and now deemed obsolete to find themselves subject once again to a new law which they believe to be fundamentally unjust will have a corrosive and poisonous effect. The lukewarm will eventually go over to the other side. The committed, who are also in general the most loyally patriotic people in the country, will find themselves still trying to pledge allegiance to a flag which represents a nation increasingly difficult for them to respect. What will come of that, who knows?

If moral traditionalists may not look at law in the same way, it is also likely that the law will not look at them in the same way. I have been saying for years that the logical extrapolation of certain social and legal trends is that the profession of Christian moral teachings would eventually be seen as “hate speech.” Incidents of this sort have already been reported in England and Canada. Perhaps our mania for free speech will prevent this repressive impulse from gaining the force of law here, but I wouldn’t bet my house on it. But even so, marriage is such a public institution that no one will be able to escape legal entanglement. This division may be even more deeply felt than the one over abortion. The act of abortion is a worse evil, but it remains a specific act, either to be allowed or disallowed, and, as abortion-rights advocates are always pointing out, those who are opposed need not get involved. (They may feel a duty to get involved in preventing a wrongful death, but that’s a different question.) “Marriage” between two people of the same sex will eventually involve everybody to the extent that one will have no legal right to deny that they are married.

Perhaps saddest of all is that live-and-let-live is in fact what most of the more conservative population believe. Contrary to propaganda, very few conservative Christians have any desire to persecute homosexuals—unless “persecution” is defined as the denial of approbation. Live and let live is precisely the view of most of them. It is certainly mine. Individuals on both sides of the culture wars can and do get along reasonably well, even if it means declaring certain topics off-limits for conversation (if this list grows too long, of course, conversation may become difficult). But when an attempt is made to resolve a dispute about fundamental principles by resort to a law which is applicable to all and has behind it the invasive force and presence of the modern state, differences harden, lines must be drawn, and peaceful co-existence becomes difficult or impossible.

Most Christians, and most conservatives whether Christian or not, recognize that life is not an orderly business, that it often places people in difficult and unfair situations, and that not everything that is immoral should be illegal. But marriage is a state into which only individuals of opposite sexes may enter; moreover, for over two thousand years it has been, in Western traditions including the Jewish, Greek, Roman, and Christian, one into which only one man and one woman may enter. We are now asked to believe that this was mere bigotry and superstition, a mistake and a crime. No matter what the state says, I cannot admit that two men, or two women, or any assortment of number and sex other than one man and one woman, are in fact married, although I may be forced to pretend that they are. I adapt the words of the impolitic vicar of Wakefield: “...nor will I allow him now to be an husband, or her a wife, either de jure, de facto, or in any sense of the expression.”