Light On Dark Water

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.”