The blitzkrieg-like success of homosexual liberation in the early twenty-first century, culminating in the same-sex marriage decision in June, presents Christians and other adherents of traditional sexual morality with a new legal reality, but not with a new moral reality. Moral reality has not changed, and continues to call on all people of good will to advance and defend its claims. This was the clear message of Ryan Anderson, Heritage Foundation fellow and leading advocate of traditional marriage, and other prominent spokesman for traditional morality and liberty of conscience at a panel discussion concerning the current conflict over marriage and liberty of conscience. Anderson and the panelists discussed the issue in connection with his new book, Truth Overruled: the Future of Marriage and Religious Freedom, which concerns what should be done in the wake of the same-sex marriage decision.
Jennifer Marshall, also of the Heritage Foundation, moderated the discussion with Anderson, Professor Robert George of Princeton University, Mollie Hemingway, Senior Editor at the Federalist, and Ilya Shapiro of the Cato Institute. She began by noting that “when the Supreme Court imposed same-sex marriage on the country on June 26, many people concluded that the debate was simply over. Ryan Anderson was not among them.” Despite arguments for traditional marriage advanced by Anderson and other marriage supporters, “the Supreme Court failed to address these arguments, much less effectively answer them, rather, they simply set them aside.” She went on to say that Anderson has declared that the debate is not over “because of many new questions raised by same-sex marriage … [raised] particularly by the voices of the children of gays and lesbians, and debates about religious freedom.”
Anderson began his discussion of what social conservatives can do in the future by noting the similarities in the situations caused by the Supreme Court’s imposition of same-sex marriage and its earlier imposition of abortion. Anderson noted that “first, pro-lifers rejected Roe vs. Wade as an illegitimate Supreme Court decision. They said it was judicial activism that had no basis in the text, the history, the logic, or the structure of our Constitution.” Also, after Roe vs. Wade, as has also been the case with the advance of homosexuality, there was an attack on liberty of conscience, with the claim that abortion is “basic health care,” and “therefore everyone should be required to pay for abortions and all medical personnel should be required to perform abortions.” But “the pro-lifers succeeded, through a variety of legal mechanisms, in protecting their right not to pay for abortion or to perform abortions.” Freedom not to pay for abortions existed until the advent of the Obama Administration and its HHS mandate, while medical personnel continue to be legally protected against having to provide them. Anderson said his new book explains how liberty of conscience can be guaranteed to those opposed to same-sex marriage (“bakers and florists and photographers and adoption agencies and schools”) . Even those in favor of same-sex marriage should support liberty of conscience, rather than attempting to “coerce or penalize those who are against it.” Anderson indicated that these coercive policies depend on the analogy to racism, but his book explains why the analogy between traditional morality and racism is wrong, namely, that race is not part of the essence of marriage, whereas sex is.
A large part of the problem in engaging the issue of same-sex marriage is that available information is dominated by a highly partisan news media. In spite of the media “touting social science studies that don’t use large, random and representative samples” as evidence of the success of same-sex marriage, the “best social science studies show that children do best when raised by their married mother and father.” Anderson’s book also “introduces readers to some voices that have been silenced by the media.” These are children raised by homosexual couples. One such person, Heather Barwick, the child featured in the famous book “Heather Has Two Mommies,” has said that same-sex marriage “creates an institution for missing parents.”
Another helpful lesson from the pro-life movement is its network of supporting resources, such as “such as crisis pregnancy centers, and a whole network of resources to help women choose life.” Just so, the pro-marriage movement needs a network of resources “to help everyone live out the truth about marriage.” Marriage advocates need to make clear that homosexuality is not the cause of the collapse of traditional marriage as a cultural norm, but ultimately “heterosexuals who bought into a bad liberal ideology” are to blame. “It’s only after 50 years of culture redefinition of marriage, that Justice Kennedy and the four liberals could engage in a legal redefinition of marriage. The first task is recapturing the truth about marriage and living it out in both law and culture.”
Robert George praised Anderson’s work as showing that the new state doctrine of marriage is a redefinition, not an expansion of the old institution. The new definition of emotional attachment rather than conjugal union cannot serve the social purposes that marriage once served, George said. Bearing and raising children resulting from the physical coming together of two persons, plus the benefit of a parent of both sexes, are no longer part of the essence of marriage. Also lost are the norms of monogamy and permanence, which now have no “principled basis,” since marriage is no longer legally understood a union of male and female to bear and raise children.
New marriage also means more state involvement in personal life. “The state might as well regulate ordinary friendships” or “bar mitzvahs or baptisms,” George said. Perhaps indeed the new definition of marriage may lead to more state supervision of general social relations. This ties in with another danger from same-sex marriage, that it was imposed by elite opinion through the Supreme Court, thus putting the basic principle of republican government, that decisions are made by the people’s representatives and with the consent of the people, at risk. “Lincoln was willing to go the mat … because he realized that the very concept of republican government was at stake,” George said. The Gettysburg address asserted that the Civil War was fought to ensure that “government of the people, by the people, and for the people will not perish from the earth.” On the religious freedom issue, same-sex marriage causes dangers “that conservatives historically have not been very cognizant of … the power … of economic elites to coalesce around a particular point of view, effectively rendering opposition to the view impossible or crushing it at every turn.” The best example, George said, is “what happened in Indiana.” As was noted by the present writer in an earlier article, the impetus of the Supreme Court’s decisions on sexual relations is to move the government toward becoming an ideological state, in which laws and policies, public speech, and perhaps ultimately private speech and behavior have to be justified as being proper according to various liberationist ideologies.
Mollie Hemingway noted the same-sex decision was hailed as final, but immediately recognized as poorly reasoned, in contrast to Roe vs. Wade, which took some time to be widely acknowledged as based on poor reasoning. Her own personal journey on the issue of same-sex marriage shows that people can change their minds as a result of well-reasoned argument, as she originally supported same-sex marriage. She noted as well that same-sex marriage will cause much social conflict, especially regarding religious freedom, although people were promised that there would be no effect on those who disagree with same-sex marriage and homosexuality. Most people want an “expansive” idea of freedom, she said, and freedom is increasingly being restricted on the issue of homosexuality. Essentially, injured feelings are taking precedence over freedom.
Ilya Shapiro is a supporter of both same-sex marriage and liberty of conscience for those who disagree – he believes that they are compatible. Conflict is a result of the failure to recognize the difference between public and private action. Government action must be restricted by the need not to impede liberties and equal treatment. Private action should not be so restricted. Shapiro believes same-sex marriage was essentially a case about equal protection with respect to licensing (the licensing of marriage), and the case should have been decided that way.
But while Shapiro may have offered a consistently libertarian prescription for the same-sex controversy, it should be noted that the Supreme Court was interested in much more than that. Kennedy and the liberal justices were not merely interested in applying equal protection to homosexual couples, but in changing social reality for homosexuals. So the decision was not based on constitutional principle, but, like Kennedy’s earlier homosexuality decisions, offered itself as a moral declaration that traditional sexual morality is cruel to homosexuals, and is therefore repudiated. Therefore the Supreme Court majority is not interested in protecting freedom, because by this reasoning, freedom protects cruelty. Kennedy’s mistake was in assuming that pain and humiliation necessarily establish injustice. They do not. Christians recognize that God in His perfection may require painful things of His creatures. But even a secular state should recognize that reason and evidence, which Anderson abundantly offered in his book, should take precedence over injured feelings. It should further be recognized that people should not be required to take action against conscience because others are pained.
Anderson responded to Shapiro’s libertarian treatment of the same-sex controversy by saying that Shapiro’s libertarian analysis of harms and rights works “really well” from a libertarian viewpoint, but can’t give an answer for how children should be raised, or explain social institutions (such as marriage). Only if we understand marriage as an institution uniting man and woman for the benefit of children do we understand why restricting marriage to the union of one man and one woman does not violate the Fourteenth Amendment.
In response to question about the “balancing test” of Religious Freedom Restoration Act, Anderson said that what is needed to protect liberty of conscience “in the private sphere” is not a balancing test but a “bright line.” “The same bright line we have had on the abortion issue,” which is “that no pro-lifer should have to pay for abortion and no pro-lifer should have to perform abortion. There is no compelling state interest, least restrictive means analysis that would explain when you have to perform an abortion if you’re pro-life from a moral standpoint. And so I would say something similar is what we would want on the marriage issue when it comes to private action.” For public actors however, there should be a balancing test. He noted that the Rowan County Kentucky Clerk, Kim Davis, not only declined to provide a marriage license to a same-sex couple, but ordered her entire office not to provide the license. What is needed are conscience protections for people in the clerk’s office, but provision of the license to the same-sex couple, as was legislatively provided for in North Carolina. The important point, Anderson said, is that the government should never penalize or coerce a private actor.
Kathy Ruse of the Family Research Council noted that the conscience protections against paying for or participating in abortions ultimately had to be protected in court. Pro-abortion activists went to court to strike down the laws protecting conscience in a number of cases, and the U.S. Supreme Court consistently upheld those laws. Anderson responded that what needs to happen now with the defense of conscience with respect to traditional marriage is the enactment of laws at federal and state levels, followed by vigorous and skilled defense of those laws in court. Anderson, in a more optimistic assessment than the present writer offered above, claimed that a hopeful sign is that on liberty of conscience, Justice Anthony Kennedy “votes most often with the Cato Institute.” Hemingway noted that there does need to be credit given as well to the pro-life movement as they have spoken for decades against “hostile courts and an extremely hostile media.” They have courageously spoken the truth in the face of hostility, and have helped the public understand arguments and facts that the mainstream media excludes. George pointed out that the Supreme Court decision protecting liberty of conscience with respect to abortion was a 5 to 4 decision rendered “under tremendous pressure because of the hard work of the pro-life movement.”
Bob Moffit, Senior Fellow at Heritage, asked if “we should go for the full privatization of marriage … which was entirely a religious institution” at one time. George responded that “there is now no logical basis” to exclude from the law any form of marriage that people would like. Shapiro said that “state licensing of marriage” is a modern phenomenon, although marriage “is certainly not.” He was not sure if marriage should be fully privatized. He did say that he had “always had the view that this all should be done under contract and property law, with society and culture, to prop up” the institution of marriage. He was disappointed that no state enacted a law in the years prior to the same-sex marriage decision saying that it would no longer license marriage if traditional marriage were abandoned.
Anderson responded to these opinions by saying that society should not pursue the privatization of marriage, because true marriage is indeed a good, which is a “stabilizing force” in society. Marriage is “the best anti-poverty, social mobility institution known to mankind.” It is “particularly important for the least well off communities in America … the people who are most influenced by the law’s public teaching aren’t the elites in Georgetown … [but] the people who have the least resources to other influences.” Anderson also challenged the claim that prior to the modern era marriage was simply a religious institution. Pre-modern marriage was both a “natural” and “supernatural” institution, he said. It has a religious basis in God’s revelation and commands, but a natural basis in what is apparent from human nature and experience. By privatizing marriage, “you open up a Pandora’s box of endless litigation and government meddling into the family and civil society … state recognition of marriage is a way of limiting state power,” Anderson said.
Finally, Hemingway said that “marriage protects people at their most vulnerable, and that is particularly true for women and children.” But because everyone is protected by the institution of marriage “it’s very important that we think deeply about how we as a society view that institution for the benefit of all.”
In general, the panel recognized that while the same-sex marriage decision (and other court decisions pertaining to sexual issues) establishes a new legal reality which is contrary to the truth, the moral duty to defend and advance the truth has not changed, nor can we expect that efforts to advance the truth about sex and marriage will be fruitless in persuading people, and perhaps ultimately successful with society at large and the law.