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The civilizational conflict between Christians (and other traditionally religious persons), and secularists has been conducted by Christians with two appeals, first, direct appeal to the West’s Judeo-Christian heritage, and secondly to the “common good,” an assessment of what is best for society as a whole, or more succinctly, to faith and reason. The first prong of this approach, religious heritage, has been ruled out in America (and now in much of Europe) by secularist courts (although still in some measure favored by the American majority). It is therefore disconcerting to have the second prong defending the Christian heritage of western society, that of reason, ruled out as well as being “animus,” harmful to persons in the “victim” categories of antidiscrimination law and policy.
Engaging debate at the level of common sense, social conservatives advance arguments for traditional marriage and traditional morality that show persuasively that traditional marriage is best for the couple involved, children, and society at large; or that it is better for military life and combat capabilities that women be excluded from combat, or that corporal punishment, reasonably administered, is not harmful and indeed seems beneficial in the Christian subculture that practices it. All of this is irrelevant to the “cultural Marxism” used by feminists, homosexual advocates, “children’s rights” advocates and others who regard the institutions of marriage and the family existing from antiquity to be oppressive and calling for its reconstruction or replacement.
The rhetoric of the cultural left in attempting to force social change on an unwilling majority seems to play off Supreme Court decisions. The court’s “animus” standard introduces an ideological element into law, invalidating laws which have good rational support, if it judges “animus” or hostility to have been part of the enactment of these laws.
The animus standard is held to be justified by the 14th Amendment’s equal protection doctrine, invalidating law found to be the result of hostility toward a group which it “disadvantages.” Employed in cases little known to the general public before 1996, it has since been employed by the Supreme Court in attacking legal prohibitions or restrictions on homosexuality in its Romer (1996), Lawrence (2003), and Windsor (2013) decisions. These decisions found a state-wide prohibition of local homosexual rights ordinances, state sodomy laws themselves, and the federal Defense of Marriage Act (DOMA) unconstitutional because they were motivated by hostility toward homosexuals. Neither homosexuals nor the groups (hippie communes and the mentally disabled) found to be objects of unconstitutional animus in previous Supreme Court decisions were classes protected in antidiscrimination law at the time; the court simply found that the laws it overruled violated equal protection because they were motivated by ill will.
While appealing to the equal protection guaranteed by the 14th Amendment and the “liberty” guaranteed by 5th Amendment to give these decisions the force of the constitutional law, it is obvious from the tone adopted in the text of the three decisions noted that the animus standard in fact stands on its own, read into the Constitution by the court, and the true basis for the determination made by the court. Social hostility is deemed wrong by moral intuition, not the text of the Constitution. Yet it is difficult to imagine politics or society without a measure of hostility, indeed our limited government of checks and balances exists in large measure to deal with it. The real situation today is that where the court decrees certain kinds of animus to be wrong, any law based on it or legal protection that would facilitate it becomes illegitimate. However much anyone may endeavor to show that the animus is justified, it has, by judicial fiat, been declared illegitimate, as noted in a recent article (2012) appearing in Fordham Law Review. As noted in the article, the decisions mentioned above (Romer and Lawrence, and now the Windsor decision) did not at all endeavor to claim that animus against homosexuals has been shown to be unjustified, but rather held the mere existence of animus is illegitimate. Thus laws based on the “impermissible animus” are unconstitutional, and conscience protections for those who believe the animus is justified are precarious, since they are held to be based on what has been declared an immoral belief or attitude.
Liberal, constitutional democracy seeks to channel social conflict in a constructive direction, making real conflict and hostility in society more a matter of competition, and making the losing side of a political struggle more content to live with the outcome of a struggle that was democratically fought. By contrast, the animus standard allows courts to remove from reasoned consideration by democratic authority any claim based on attitudes the court judges to be illegitimate. There can be no democratic process contrary to such judgments, and even private actions based on “impermissible animus” may be risky. While dissent from the viewpoint imposed by the state may be stigmatized as “inequality” or “irrationality,” ultimately such claims rest on a court declaration that justice and reason cannot deviate from the viewpoint the court mandates.
The animus standard thus moves the government from a constitutional and democratic character to an ideological character. It requires the government (and private citizens not in “protected” categories) to justify their actions as being “rational” (i.e., not motivated by hostility, especially hostility to a protected group in the state’s antidiscrimination doctrine), and progressively diminishes freedom as more and more protected categories are established (from the original concern with racial discrimination) and more and more areas of life fall under government review. More than one legal issue pertaining to a protected group is really in question (e.g., in the case of homosexuality, the legality or illegality of homosexual behavior) as anything in society that pertains to the state’s antidiscrimination doctrine, such as charitable activities or private education, must be brought in line. Currently the proposed modifications of the European Equal Treatment Directive seem to come close, if they don’t absolutely put, all of life under antidiscrimination review.
This approximates the level of control of life in the old communist dictatorships. The official names of communist countries stressing their “democratic” character (the German Democratic Republic, the People’s Republic of Poland, the Democratic Republic of Vietnam, etc.) were not simply lies. They had real meaning. All areas of society are to be carefully monitored, public and private, to ensure that there are no oppressive ideas influencing society. Courts and “human rights” commissions now are beginning to perform the same functions in western democracies.
One does not have to agree with all aspects of a legal system to function within it. It is certainly possible to argue around laws and court established legal doctrines that are in themselves unjust to achieve some measure of justice. But where antagonism is justified, it corrupts the truth and the integrity of the Christian position to deny that antagonism exists (which likely will not be a successful strategy anyway). We must continue to appeal to reason in support of Christian faith and morals, however painful anyone finds it, and trust that truth will become more compelling over time. More importantly, faithfulness to God requires that we never disown the truth in our encounter with the world, and obey God, as we understand his commandments, regardless of the penalty