Religious convictions and gay marriage law: Two issues, not one

Should a religious conviction be a good reason for voting one way, rather than another?

In the gay marriage debate, we often here refrains like: “As a devoted Christian (or person of faith), I believe that marriage is between a man and a woman, and so I oppose same-sex marriage”. Such statements can make it seem that particularly devout religious people have special reason to vote NO, once they ascertain that their scriptural and religious authorities dictate that marriage is between a man and a woman.

But this misses the point that there are at least two issues of moral and religious conviction in play here, not one.

What does my religion say about marriage and homosexuality?

The first question is the obvious one that springs to mind. Presuming for the sake of argument that I am a religious devotee, I will of course want to enquire into what my religion (and my interpretation and understanding of that religion) says about marriage in general, and homosexuality in particular.

Now I am not a theologian, or any sort of expert on scripture, religious authority (like the papacy) or religious interpretation. So for our purposes here, let’s simply accept that I (as a devoted religious citizen) can – on the basis of a reasonable interpretation of my religion’s commandments – decide that my religion forbids same-sex marriage.

This decision about what religious authority requires will have obvious implications for my own actions. For one thing, it will impact powerfully upon what I will do in my own personal life. Obviously, I will have strong reason to not get married to a same-sex partner. Also, I will probably want to encourage my friends, and educate my children, to follow the same religious convictions.

As well as these ramifications for my own personal behaviour, my religious convictions will also have political relevance. Most importantly, I will not want the law to prevent me having these convictions, speaking about them, and acting upon them. That is, I will want to protect my freedom of religion to follow the dictates of my God and my tradition. This does not mean that 'anything goes' in terms of how I can treat others, but it certainly does provide an important reason for me to ensure the law provides room for me to act upon my religion’s commandments in my own personal life. (In a later post, we will talk about the implications here for conscientious objection.)

What does my religion say about the relationship between religion and law?

There is another, further way my religious convictions might turn out to have political implications. Having decided that my religion says that marriage is between a man and a woman, I might vote in order to ensure that this understanding of marriage is reflected in law.

This is a very different application of my religious views. Why? Because in this case, I am no longer using my faith to determine how I will live my life, but using my faith to determine how others will live their lives. The religious articles of faith I possess are now impacting on the law that coercively governs all citizens, including those of different sects, different religions, and the un-religious.

While in my personal life, I could move more or less immediately from an evaluation about my religion’s requirements to a decision about how I should act, in the case of democratic voting, the move is not straightforward.

The reason this move is not straightforward is that my religion, and my commitments to my religion, may also give rise to powerful reasons to resist imposing my religious views on others through the force of law.

Three considerations about the relationship between religion and law

There are three types of reasons my religion might give me pause before I vote on the basis of my religious convictions.

The separation of church and state

The first reason is that my religion might itself declare that there should be a gap between church and state, and that the former should govern our personal, spiritual lives, and that the latter – in having charge of our social and interpersonal lives – should be based upon secular (or at least non-sectarian) principles. Consider, in this light, Jesus’ command to, “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” Now of course it goes without saying that all religious quotes are subject to varying interpretations, but I think it is fair to say that at least one sensible interpretation of this saying is that there is an important distinction between the temporal and the spiritual spheres, and that our political decisions may rightly include consideration of temporal factors and issues that we do not need to consider in our personal and spiritual affairs.

It should be pretty clear that if there is to be a distinction between church and state, then this cannot be realized if we live in a democracy where everyone votes simply as if their own religion’s dictates should apply to everyone. If there are enough voting Catholics to take control of both the upper and lower houses of parliament, then (in such a world) the entire society can be required to eat fish on Fridays, to criminalize homosexuality, to be punished for blasphemy, and all the rest. The distinction between church and state will exist in name only. The fact that this doesn’t happen (even in cases where religions command a strong majority) is because many religious people acknowledge a distinction between the temporal and spiritual fields.

Tolerance and social peace

The second type of reason is that my religion may say things about tolerance, and about social harmony, that give me pause before imposing my views upon others. If my religion says that other views should be respected, and that non-religious people should be persuaded, and not forced, into religious practice, then this will affect the way I vote on such matters. Similarly, my religion might speak a lot about the importance of social harmony and peacefulness. If I think that forcing other people into religious practices they do not themselves accept is a sure recipe for internecine divisions and sectarian conflict, then this will shape how I contribute to political decision-making on the basis of my religious convictions.

These were the sorts of lines of reasonings that led John Locke – the 17^th Century political philosopher and devout Protestant – to mount some of history’s most powerful and influential arguments for religious tolerance in his Letter Concerning Toleration. Locke did not laud religious toleration, and a separation of church and state, despite his religious convictions – he did it because of his religious convictions.

The right to freedom of religion

The third type of reason recalls the importance (mentioned above) of my being able to act on the basis of my own religious convictions – and therefore of my right to freedom of religion. When my own co-religionists are in the majority in a democracy, I might not perceive any tension between my religious liberties and the practices the majority enshrines in law. But demographic shifts are possible, and so too are changes in people’s religious convictions. If the majority comes to hold a different religious view to mine, then I might suddenly perceive a very powerful tension between democratically made law and my own religious liberties.

For this reason, in order to protect my (and my family’s) religious freedoms, I might be better placed in trying to ensure that no-one’s particular religious views can be enshrined in the law. True, I lose the benefit of seeing others conform to my religion’s view about proper practices. But if I am (and those who think like me are) successful in safeguarding all citizens’ freedom from having religious practices and institutions imposed upon them, then I guarantee my own religious freedoms even in a future scenario where another group commands a democratic majority. The constraint imposed upon me when my group held a majority opinion becomes a freedom granted to me when I hold a different view. That, after all, is how rights work.

What should we conclude?

I am not here providing any sort of definitive moral (much less religious) case that these three types of reasons are decisive in the gay marriage debate. Whether that will be true or not depends on the specific religion in question.

What I am arguing is that a religious devotee deciding about how to vote on gay marriage is – by the very nature of that vote – coming to a stand on all of these three types of reasons. For devoutly religious people, simply considering what the religion says about gay marriage is far too narrow an engagement with their religious scriptures and authorities. It is also essential to consider what the religion says about the relationship between church and state, what the religion says about tolerance and social harmony, and what the religious community thinks about the importance of protecting rights of freedom of religion.

So when providing a full justification or explanation of how they voted, religious devotees should appeal not only to the passages in the scriptures that set down the church’s stance on marriage and homosexuality – but also to appeal to what the religion says about these three further and very significant factors.

None of this should be very surprising

In other contexts, the types of reasons I have been discussing here are routinely accepted by devoutly religious people. Religious devotees may well possess deeply-held and unshakable convictions about proper eating, clothing, cleanliness, sexuality, worship, charitable giving, and so on. But they do not suppose that, on the basis of these views, they should agitate and vote for laws that will bind those people who do not share their religion. They allow others outside their religion to legally do things that are sinful according to their revealed law. These sinful but non-criminal acts would include, for example, pre-marital and extra-marital sex, use of contraception, atheism, apostasy, blasphemy and so on and on.

In many respects, for all these above-noted sins, it just seems common-sense to think that the law should not follow the idiosyncratic dictates of a particular religion. But for some reason, religious devotees, and even religious authorities, seem not to apply the same sorts of considerations about political and legal decision-making to the issue of gay marriage.

Conclusion

My aim has not been to show that it is wrong to incorporate religious thinking into one’s political decision-making. In fact, I have been arguing the very reverse. I have suggested that it is wrong to apply only a superficial and narrow engagement with one’s religion into political decision-making. In decisions that affect other people, and the laws that govern them, many different religious-based considerations matter, and warrant careful reflection.

(This post is one in a series, looking at the arguments in the gay marriage debate.)
   

Conservative arguments for Gay Marriage: Marriage is too important to be left to the prudes

It’s widely believed that conservatives are and should be opposed to gay marriage. I’d like to argue the opposite. While it is rarely either fashionable or politically correct, conservatism is a respectable political standpoint that emphasizes the importance of tradition, institution, virtue, stability, family, local ways of life, and a community’s moral fabric (see my earlier blogpost: http://hughbreakey.blogspot.com.au/2012/08/the-meanings-of-conservatism.html). But like every political theory, it can be used as a rhetorical device for people pursuing other goals entirely. I argue that gay marriage is a site where the conservative should take a principled stand against the prude. I survey what I take to be the three main arguments as to why the conservative might wish to prohibit gay marriage, and I aim to show that – far from supporting such a stance – the conservative has powerful reason to pursue the reverse course. Conservatives need to start taking marriage seriously.

Preliminaries

What follows is a conservative argument; it takes as its basis the sorts of considerations that conservatism as a political theory takes seriously. It is not, however, a religious argument – religion will be relevant to what follows inasmuch as religion shapes the traditions and moral fabric of a society, but no further. I won’t pretend to answer questions purely of religious doctrine. (Though, since I speak to a predominantly Christian society, it is perhaps worth at least noting that I am unaware of Jesus saying anything whatsoever about homosexuality, and that no-one – at least, no-one who has a daughter – could possibly be convinced to take on board the morality relayed in the tale of Sodom.)

At the outset, the ‘liberal’ or justice-based reasons for allowing gay marriage are straightforward enough. That is, the law should treat all people equally, and a liberal society should not dictate what forms of life its citizens choose to pursue. When it comes to questions of the good life, the liberal state should be ‘neutral’ amongst all of the different lifestyle conceptions.

A conservative, it goes without saying, will hardly be impressed by such claims. Particularly in the context of marriage. In such a case we are not talking in terms of criminalization and toleration. No-one is demanding that homosexuality be outlawed, which many conservatives would acknowledge to be an unacceptable violation of individual liberty. Instead, the debate is only in terms of what should be recognized, encouraged or valued in a community. That is where the dispute lies in this question. And surely, the conservative will say, here, at least, there can be no question of liberal ‘neutrality’. If the liberal wishes to outlaw all marriage, and allow only civil union (if that?) to have legal recognition, then they may with consistency lobby for such a policy. But what the liberal cannot do is to accept the prerogative of society to uphold and value certain relationships (like those anointed with marriage) and then complain of its non-neutrality in making that valuation. Of course such a valuation is non-neutral – that is just what it means to evaluate.

Argument 1: Prizing what is going right. Gay marriage does not pay due respect to traditions (in this case marriage) that are functioning and important to the society

One of the basic conservative insights is that ‘critique’ has no privileged place in political discourse. In other words, criticism of society is not any more important than singing its praises. Thinking that the society that guides you or the authority that constrains you is doing something wrong is no remarkable intellectual feat (every two-year-old instinctually does this countless times every day when they don’t get their own way). To the contrary, understanding and respecting what a society does right is at least as important as reflecting on what it does wrong. With this in mind, the conservative may worry that gay marriage pays insufficient attention to what is going right in our society – namely, the (mostly-)functioning institution of marriage. In particular, it might be a concern that the reform wants to remake an institution – marriage – that is, for all its problems, still a profound source of meaning and security in our modern world.

I mention this point only to reject it. The proposed reform does prize what society is doing right. The argument for the reform is that marriage remains, for many, a valuable and fulfilling institution, and that the stamp of social approval on a commitment between two loving people is a desirable thing. That seems to me the best press marriage has had since divorce rates were first publicized. Indeed, one could imagine that the conservative could feel quietly vindicated about the desires of gays to be married. That gay people wish to be married is an endorsement of many deeply held conservative beliefs. Radicals for many years now have been predicting and advocating the demise of the ‘bourgeois’ institution of marriage and the family. That a group of people systematically excluded from the institution feel a desire not to spurn it, but rather to be included within it, is – it seems to me – an emphatic rejection of the radical and anti-conservative stance. It underscores that committed, stable, long-term loving relations between partners is indeed a deep need and value in many human lives, and, all the more, that the social sanction, recognition and approval of such relationships by the community is more relevant than ever. Both these points are exactly what conservatives believe and are straightforward rebuttals of radical predictions.

Argument 2: Gay Marriage is not socially valuable as it does not contribute to childbirth and child-rearing.

Marriage can be viewed as a socially valued institution because it is a necessary condition for propagating children and effective child-rearing. Both of these are legitimate concerns of the conservative, since they both carry plain implications for the survival of the society. On such a basis it might be argued that, as gay marriage does not contribute to this valuable social outcome, it is not therefore worthy of the same social and legal recognition.

Ethicist Professor Stephen Cohen (UNSW) recently responded to such arguments with a ‘shame on you’ accusation, suggesting that proponents of this view are advancing it only to cover up their real concern, which is with what they perceive as the immorality of homosexuality (which will be covered in the following section). He may well be right, but I will here take it as an argument on its face worth consideration by the conservative.

It is often responded to this argument that marriage is not centrally organized around propagation and child-rearing. Married couples are not required or even necessarily encouraged to have children. Marriage vows usually contain no declaration of intentions to raise children; often children are not mentioned at all. Persons who have no physical capacity to have children can be married. Persons who have no intention of having children – who are explicit in rejecting any such intention – can be married. Contraceptive methods of all types are available to married persons. Persons who have deliberately removed their capacity to have children (such as through a vasectomy) can be married. Indeed, the point here is not only that they can be married, but that there is no sense in which they are not socially perceived as being genuinely married. No one is attempting to deny them this status. It is not held, for instance, that if Amy and Bob really took their marriage seriously, they would have children, and that until they do, they are really just enacting a sort of ersatz version of marriage.

There is a conservative response to all this. The point might be made that social approval and recognition of stable, long-term, loving relationships between men and women in general is worthwhile, so that those that do go on to have children are more likely to have such relationships. In other words, it is easier to support and value the broad type of relationship in question than just to target the instances where that relationship is really socially valuable (viz. when it includes child-rearing).

Now this response is plausible enough, so far as it goes. The problem is only in thinking that this is any sort of reason not to allow gay marriage. The entire response is founded on the idea that it may be worth socially encouraging a type of relationship in general so that it can be assured in the subset of cases where it really matters for the community (when children are involved). If that is right, however, then it is obvious that gay marriage is worth approval for just the same reason that heterosexual-marriage-without-children is. Namely, in order to emphasize to everyone in society the value of the committed, long-term loving relationship between two partners.

Two further points are worth noting, in this regard. First, if marriage really is a bulwark to child-rearing, then gay marriage matters because gay couples can – of course – have children. They can adopt or foster children, and lesbian couples with access to sperm donors can also have children. A bisexual person may have had a child in a previous relationship, but now be in a gay relationship. And so on. Prohibiting gay marriage in all such instances would amount to a society deliberately prohibiting a child from being reared under the aegis of the institution which (the conservative response believes) is fundamentally designed for that purpose. A secure and stable home life suitable for rearing children does not depend upon a heterosexual couple being in residence; the crucial thing is the security and stability itself.

The second point is that it is highly doubtful that the only reason the conservative values marriage is because of its consequences for children. Marriage is often held by conservatives to be the central glue that holds a society together, and this is because it forms a strong, stabilizing part of a larger web of social relations. Similar to but more potent than friendship, marriage cements, so far as possible, parts of the social fabric together. Furthermore, it encourages socially useful traits like prudence, investment, temperance, sacrifice, loyalty, trustworthiness and productivity. So too the institution plays a role in the understanding of other social relations: aunts, uncles, sons, daughters, brothers- and sisters-in-law, and so on. Married people are for the conservative not valuable simply as breeders. And if this is right, then the conservative reasons for valuing and promoting marriage apply with equal force to gays as much as heterosexuals.

Argument 3:  Including gays into the institution of marriage will weaken the sanctity of that institution.

Granting that the desire of gays to be married is good news for the institution of marriage (as concluded in Argument 1), it may yet be argued that allowing their inclusion could weaken the power and significance of that institution. The thought here is based on the view that many people view homosexuality as immoral, disquieting and/or disgusting. Now it may be in some sense unfortunate or even bigoted that many people think this way, but that judgement does not prevent it from being a fact that they do. And if many people do indeed hold those views, then their perception of the sanctity and specialness of marriage can only be undermined when it henceforth includes gays within its compass. Some of the meaning of marriage will have been eroded, and that is a concern for the conservative.

But which of marriage’s meanings are we upholding? Doubtless there is a tradition, or part of a tradition, that celebrates a man and a women specifically committing to each other; that is, it matters that it is a man and a woman.

But there is another tradition, or another part of the marriage tradition, that holds that what is special is the love itself, the commitment itself. It holds that these elements are what are being picked out as worthy parts of a life well-lived, and an important part of the social glue that holds us all together. Now if that is right, then the question of gay marriage asks us to choose which parts of the marriage tradition are important. Because if it is the lifelong love or commitment (or at least the noble and determined attempt at pursuing these) that is worthwhile and valuable, then we cannot pretend that they are not worthwhile and valuable wherever we may find them.

Here’s an analogy: It would be like a person at a football match needing to check the skin-colour of the player who took a specky to determine whether it really was a great mark, or not. Put aside the racism of such a person; that’s not the issue here. The issue is that the person doesn’t get footy. They don’t understand – they are blind to – the values internal to the sport. They are unable to apprehend the act according to the standards of the marking contest as set down by the sport’s tradition and practice: bravery, altitude, strength, skill, quality-of-opposition, stakes and so on. And if a sporting body did believe that race mattered when it came to such questions, it would be defying the internal values of the sporting tradition. In other words, a conservative about the sport – a ‘custodian of the game’ as Don Bradman aptly expressed it in the context of cricket – would have every reason to be horrified by such a distortion of the standards of excellence of the sport, by the infection of the tradition with standards imported from outside its practice.

So too, I submit, for marriage. For all those who value the institution’s eulogizing of steadfast love and commitment, through thick and thin, as the guiding star of its tradition, the demand that gays be excluded from marriage can only diminish their respect for the institution, and cut against the perceived grain of its tradition. For now they are being told they got it wrong, and despite everything in all their vows about love and sacrifice through thick and thin, marriage wasn’t really about such things after all. The exclusion from gays from marriage was consonant with the internal values of marriage only when society held a variety of views on homosexuality – in particular that it was a form of insanity, and rightly illegalized – that implied that gays couldn’t really love and commit in the ways sanctified by marriage. Without the support of these now widely debunked myths, the internal values of marriage apply to gay partnerships as much as they apply to heterosexual ones.

The fundamental point here is that traditions are always contested and often conflicting, and the conservative needs to be aware (as Roger Scruton himself makes clear) that for this reason it is impossible to uphold every tradition at once. The conservative stands here at a crossroads, needing to decide which tradition of marriage will be upheld. The one that is responsive to a long-standing felt immorality of, or distaste for, homosexuality? Or the one that unreservedly makes central lifelong love and steadfast commitment? I submit that, when conceived on these grounds, no conservative can opt for the former. The latter picks out exactly the values and virtues of marriage that are prized by the conservative; it foregrounds the qualities that make it contribute to the moral fabric and ongoing resilience of the community. To believe that a dislike of gays is sufficient to warrant their exclusion from the institution of marriage is not to take seriously the worth of marriage.

The same point, too, can be made with respect to religion. (Now I’m not religious myself, so I’m drawing here on Rev. Noel Preston’s illuminating thoughts on the issue here: http://www.journeyonline.com.au/showArticle.php?articleId=3368) There is an important part of the marriage tradition that values and celebrates a couple coming together with God, deciding to intertwine their lives together and with their Maker. Now if that decision and commitment is what is valuable (either in terms of a life-well-lived, or for the life of the community), then that is a reason to respect it wherever it is found. This is not to say that every religion needs to marry homosexuals; that is of course a question of religious doctrine. But the question here is the one confronting the conservative, weighing up what traditions to sustain in cases where they must choose.  As before, it is the noble and uplifting elements of marriage – love, commitment, holiness – that are on the side of the institution as it might be enlarged to include gays. And it is a quite different set of elements and traditions being invoked by those who would prohibit it. The traditions clash, and the conservative must choose which will triumph at the expense of the other.

But for the genuine conservative, there is no choice whatsoever here. A marriage tradition that downplays the values and virtues of lifelong love, companionship, stability and steadfast commitment as they rank in comparison to the gender of the participants is no marriage tradition at all. It splices from the tradition exactly the values and virtues that make it precious from a conservative standpoint.

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The foregoing arguments combine to make a simple point. Conservatism – or, at least, conservatism as a political theory, with its focus on tradition, virtue, moral fabric and the survival of the society – is not the same thing as prudishness. The prude believes that what everyone else does sexually is the prude’s business. The prude wants to know what is being done by others, and wants to control what is being done by others. But there is no political theory of prudishness. No-one pretends that one person’s salacious desire for prying and intruding into other people’s sexuality constitutes any reason that society should cave in to that desire. So the prude presents their desires as if they were grounded conservative arguments. They are like the drunk who searches for his lost keys under the streetlamp, not because there is a good chance they are there, but because it is the only place he is likely to find them. The prude cannot pretend they have justice or liberty on their side; traditions of human rights don’t accept the law intruding into such private matters and lifestyles. Conservatism, however, does allow that such private acts can fall within the appropriate scope of law, and certainly of rightful public opinion and sanction. So the attempt is made by the prude to colonize the conservative stance. But to say that the conservative agrees that sexual and other ‘private’ matters are fair game for social concern is not the same as saying those matters must be constrained in whatever way the prude desires. For there are many traditions at work in any functioning society, not only prudish ones. And some of those traditions, such as the values internal to the institution of marriage – steadfast love and lifelong commitment – are not ones with which the conservative should wish to trifle.

Ultimately, the conservative throughout history has known that it is the internal enemies that are the most dangerous. If what I have argued here is right, conservatives must remember that their concerns and goals are not the same as those of the prude, and they must be ready, when necessary, to battle the enemy that seeks to infiltrate their ranks and speak in their name. This, I think, is the serious point behind the popular tweet by Morgan Freeman: ‘I hate the word homophobia. It’s not a phobia. You are not scared. You are an asshole.’ In other words, the charge here, another version of Cohen’s shame-on-you, is: ‘You’re not a conservative and you should stop pretending you are. You are not animated by genuine fears for social values and traditions. You are a prude (or maybe you just have a taste for institutionalized meanness). You are just one more person who thinks society should be structured to conform to your every prejudice, with no serious thought whatsoever of what that might do or mean for our society and its institutions.’

One final point in closing. Sometimes the ‘argument’ given for gay marriage is just given as: ‘C’mon, its 2012! Why are we still arguing about this?’ On its face, this can seem mere assertion, and can present social change as being inevitable progress against the embarrassing bigotries of history. Such a position may seem to be something the conservative will rightly want to guard against. But it is worth remembering that traditions and practices are not museum pieces. Some cultural practices are journeys; they have their own internal momentum (consider the archetype of conservative social practice: the common law).  The blithe assertion that it is 2012 is, in its way, an appeal to our society’s traditions – some of them centuries old. It says that we are still continuing on the journey our ancestors set us upon; that they bequeathed to us unfinished business that we have been lax in attending to.

It’s 2012, and it’s high time we started taking the tradition of marriage seriously. It is too important to be left to the prudes.