In the aftermath of the passage of proposition 8 I have been pondering the future significance of this legislation for religious conservatives and religious people more generally. I myself did not vote for proposition 8 for many reasons which I will not go into here, but one reason was the belief that a government/body politic that believes it can vote to define marriage and/or to withhold marriage from one group or another simply on the basis of public opinion has no moral grounding--the definition of marriage in this society would become a soupy, constantly changing mess, and a government that withholds recognition of marriage to one group today can just as easily withhold it from any other group tomorrow.
Observing the fall out from the votes cast last November I have begun to wonder whether proposition 8 might well turn out to be for religious conservatives of my generation what the Scopes trial became for religious conservatives of an earlier generation--an example of winning the battle but losing the war. I ask this as someone who identifies himself as a religious moderate who believes that the fate of religious conservatives is significant for all religious people in this country. And my concerns stem from the same conviction that initially lead me to vote no on 8--that if we grant the government the right to define marriage and to withhold its legal recognition of marriage to certain groups we grant the government (or the voting public) power it has no right to. This is a libertarian argument I suppose; though as my earlier post makes clear it is also based on a concern that we as a country retain some sense that what is right and just is something larger than the opinion of >50% of the population.
Religious conservatives (not only Christians) believed they could force their will and their view of marriage on the rest of the population, and they have succeeded by a bare majority. But just as fundamentalists won the Scopes trial but lost in terms of social clout, respect, and standing in the long run, it may well be the case that this proposition ultimately undermines the interests, power, and standing of religious conservatives in the long run. This concerns me not because I particularly care to see religious conservatives extend their streak of political influence, but because it has the potential to negatively impact the practice of religion in the United States for generations to come.
Religious people are now painted, with some justification, as believing that justice is merely the will of the majority, that might really does make right. Furthermore, we have set a precedent for one majority dictating the practices and restricting the legal protection of a minority. Whether you call it the Rawlsian "veil of ignorance" or the Golden Rule, simply putting ourselves on the other side of such action should give us pause. I do not rule out taking such action a priori, but it should be something that we give substantial thought to. That is what I feel has been most lacking in the recent debates.
1 comment:
Sir, what have you done to me such that I reply to a blog? I’m nearly offended.
A couple random points:
1) Those of us outside of California aren’t quite so in the loop about proposition 8.
2) Your analogy to the Scope’s trial is either complete balderdash or, as I suspect, the best thing you’ve mentioned in these two posts.
Here is my response that is not quite entirely unlike a disagreement.
Law:
Law is complex. Yes we (i.e. Christians) should uphold ideas of Natural Law. Our actions and government should reflect higher truths. However it is weak try to say that all law can be based on a higher principle – consider driving regulations which are largely based on convenience (and some safety mixed in). And still other law is based on a common understanding and consent by which we live (anti-litter laws, taxes).
So far we have three sources of law: higher truth, convenience, social consent. I can’t think of any others at the moment. Someone will object that convenience is just a form of social consent. Ok, sure, but I’m trying to distinguish between kinds of choices that we have made as a community. Some choices reflect values and influence morality (we are a capitalist country) other choices don’t (we drive on the right side of the road). I’m labeling the former as laws derived from social consent, and the latter as convenience.
The crux seems to me to ask where does marriage come into this body of law? The rub is that it isn’t so clean cut.
Marriage:
What is marriage anyway? It is certainly a relationship, but also a relationship in society. I won’t even try to talk about the relationship proper.
Some of marriage is this social consent thing. There exists the idea in our culture that progenitors of children should provide a stable home in which to raise those children – which generally means a marriage. Some would like to say that this constitutes a common law marriage…I agree until I start thinking about the fringe cases where it gets too messy. We also have this idea that you treat a married couple as a pair that is wrong to separate. It isn’t polite to hit on a married person.
Yet Marriage is certainly a religious thing. Side note: I’m not sure why our country says that marriages performed in churches are recognized by the state.
Religion:
Freedom of religion is a good thing. Yet like many good things, it is not hard to stretch this too far. For example take the apparent Fundamentalist LDS practice of marrying girls of ~14 years to older, already married men? Or for simplicity sake, take polygamy and forget about the statutory rape part. I’m going to have a hard time saying that higher truth demands monogamy (not that I could argue that it doesn’t). There have been many polygamists obsessed with following God’s laws. However, it’s quite easy to argue that morality requires us to be faithful in marriage and to fulfill wedding vows. So why is polygamy illegal in this nation? I think this an example of social agreement. Perhaps when the law was instituted it was recognized as reflecting a higher law, but I don’t think that is the case anymore; yet while there is hoopla and confusion about marriage, polygamy is not on the table.
So perhaps I’m now guilty of taking Daniel’s argument too far by saying that, if cannot make laws about marriage because we fear that someone else will make marital laws persecuting us, then we should be willing to embrace all sorts of practices including polygamy and our friendly Fundamentalist LDS. This is absurd to me. So much of this society is built on the idea of a nuclear family (albeit often crumbling) that to outright abandon it strikes me folly. Yet I’m arguing this on the basis of social consent, not on Natural Law. Consequently we could change how we understand marriage, and this be reflected in our laws, but this would need to be a rather slow, organic thing, than propositions and amendments handed down to us.
Conclusion: Daniel, I like your point and I even agree with it until you try applying it very much.
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