BY: Bruce Frohnen
The Supreme Court’s decision in Obergefell v. Hodges, dictating that all states issue marriage licenses to same-sex couples, was handed down less than a year ago. Already, though, most Americans have accepted this judicial dictate as the law of the land. More importantly, they seem to have accepted the story that it is a mere imposition of a common-sense legal solution (“treat everyone equally”) to take issues of religious and moral disagreement “off the table” of public policy debate. What too often goes unremarked in this version of events is the essential basis for Justice Anthony Kennedy’s opinion in Obergefell.
The basis? Justice Kennedy’s determination that the only reason behind the longstanding laws restricting marriage to unions of one man and one woman was animus against homosexuals. Animus, of course, means hostility or ill feeling—hatred or, at best, unthinking bigotry. Only a finding of such animus could be used by the Court to invalidate laws upholding a conception of marriage older and more deeply rooted than our nation itself. Only this determination could undermine the deference even today’s courts claim they pay to states regarding laws within their recognized competency.
What does it mean to say that any defense of the legal status of traditional marriage is/was rooted solely in bigotry? And what does such a determination portend for the future? As ever, any mention of a slippery slope toward some radical change will be greeted with heated charges of fear-mongering. One is reminded of past instances in which this tactic has been used, including in response to claims that earlier moves in this direction might lead to federal imposition of same-sex marriage. Now, of course, any reference to those earlier warnings is likely to be taken as a sign that one wants to “turn back the clock” to an era in which homosexuals were violently oppressed. But it is important to note where the logic of Obergefell fits within a larger movement in American law—namely that toward imposing “neutral” secularizing structures on religious institutions and practices.
For guidance, here, we need look no farther than another religious freedom case, Little Sisters of the Poor v. Burwell, that is currently before the Supreme Court. Several commentators have asked why the Obama Administration is working so hard to force the Little Sisters of the Poor to cooperate in the provision of contraceptives and abortion-inducing drugs to their employees through the Affordable Care Act (“Obamacare”). The numbers involved are so small, here, that it clearly would be easier and more sensible to simply force all Americans pay for this particular “social benefit” through generalized taxes than to chain these nuns to practices their faith insists are evil. But the Obama Administration has much more in mind than merely guaranteeing universal access to contraception and abortion. It seeks to marginalize religious institutions as a whole by portraying their essential beliefs as rooted in harmful prejudices. In this way it would ensure that public debates take place only on the basis of values and goals of which it approves—namely those prioritizing individual emotions, interests, and life-choices above any sense of the common good beyond an empty notion of “toleration” as indifference to morality and virtue.
The lie of a neutral public square, in which we can debate important issues on the basis of “public reason,” is at its heart an anti-religious lie. It rests on the notion that we can set aside our faith and discuss important issues on the basis of reason alone. But faith and reason are not distinct categories of thought and action. Faith and reason are intimately bound up with one another and with a more generalized approach to the world—the imagination. Historically, the vast majority of people have seen the world as intrinsically moral, that is as made up of structures and choices that have intrinsic moral importance. Ethics is central to life, on this view, and is bound up with our general approach to both daily and life-changing issues such as whom to marry and what to demand of government, community, local association, family, neighbor, and self. This conception of life is intrinsically religious, for it rests on recognition of a natural order to our being that makes sense, has moral importance, and calls us to virtue, despite our own failings and limitations. It is a vision that has been under attack for more than two centuries, however, as a seemingly secular vision rooted in human emotions and impulses has sought dominance. This latter view, often termed the “idyllic” imagination and ascribed to Rousseau, sees the intrinsic goals of life as bound up with self-expression and self-actualization. It blames the injustices of life on social structures deemed oppressive or unjust and sees duty as something to be imposed on other people and especially on institutions.
It is simply wrong to ascribe to the idyllic imagination a greater attachment to reason than that of the moral imagination. Both have a conception of what is rational and how reason is best used to further human happiness. The difference is that the latter, idyllic vision views human happiness in terms of individual choices and mass actions aimed at the liberation of individuals from social structures, perceptions, and forms of thought believed to interfere with individual autonomy and growth.
The moral imagination, on the other hand, seeks to protect the fundamental associations in which persons learn virtue. Obviously, the moral imagination is tied to recognition of a natural order, and this means for most of us with an ordering God, whereas the only necessary points of stability among those who reject this vision in favor of its idyllic alternative have to do with the illegitimacy of restraints on expressive choices, the illegitimacy of standards of virtue outside the opposition to oppression, and the presumed rationality of a narrow empiricism. “Science,” within this world view, is the gathering of relevant and convenient facts that leave out overarching rationality rooted in the order of existence. It is a scientism devoted to the purposes of the user, highly malleable through the choice of topics, the drawing of distinctions, and the construction of theories and “values” not subject to rational inquiry. It can abide superstitions and heresies like worship of an earth-goddess, but not the binding of religion.
The differences in forms of reason and policy a person of religious faith will have from those held by persons without that faith are substantial, and becoming increasingly important. The neutral public square (even the Naked Public Square, as it was termed by Richard John Neuhaus) is in reality the secular public square. It is adorned and shaped by assumptions regarding human rationality and the human good no less robust and detailed than those of religious people. The result is highly divergent visions of a good life. Those imbued with the moral imagination recognize the connection between public order and the ordered soul. They see the necessity of common decency and public institutions allowing associations to form good character so that people may lead virtuous lives here in hope of the next life. Those possessed of an idyllic imagination seek individual fulfilment of one’s own wishes and desires, aided by a state protecting us from want, from violence, and from all forms of unease.
Unease is essential to the religious understanding of life. We exist under judgment, and being sinners that judgment will find us wanting. Why not eliminate the unease by eliminating the judgment and its religious understanding? We may keep a god or gods as emanations from our own personalities and desires (Jesus as a nice guy), but anything more is an invitation to disappointment, depression, and overall unhappiness. Indeed, on this view religion is positively dangerous to public order because it tells people they should not do many things they want to do, and that the state should not do for people much that they want done for them.
Despite the affinity of certain powerful religious figures for social democracy, the social democratic state is hostile to religion because religion undermines the authority of the social democratic state.
Yet, the contemporary state (openly social-democratic in Europe, less openly so in Barack Obama’s United States) cannot be openly anti-religious because many people desire the comforts of religion. Thus, the best strategy is not to seek to eliminate religion, but to dilute it. Of course, many clergymen have been aiding in this endeavor for decades, reducing faith to comfort. But more can be done and has been done.
Religion increasingly is treated as a private exercise of individual emotions that should not be “imposed” on others through expression in the public square. Majority (“powerful”) religions in particular are to be kept out of the public square, though minority religions such as Islam may be welcomed for a time as a means of diluting the majority view.
Clearly, marriage is a central institution of any society, one possessing, carrying, and spreading religious ideas of the person and the proper nature of our relationships. By denying its religious character, even denigrating religious views of the institution, the state denigrates the role of religion in public life. But there is more. As shown by the administration’s actions in Little Sisters of the Poor, the state may seek to chain religious institutions to its own regulatory institutions. In this way it shows religious institutions who is boss—not God, but the state. From here the state may move on (as it has moved on, for example in France and in Canada) to political standards in education that require even religious schools to teach a secularized vision of religion in history, and to a common, national set of standards requiring all but the most private and insular groups to abide by a code of conduct deemed “tolerant,” but in reality aggressively secular.
The goal is in reality the de-naturing of religion, the turning of religion into a tame tool of the state that can provide comfort for those who still seek its solace without challenging the social-democratic orthodoxy or the institutions that enforce it.
Bruce P. Frohnen is a Senior Contributor at The Imaginative Conservative. He is Professor of Law at Ohio Northern University College of Law and the author of Virtue and the Promise of Conservatism: The Legacy of Burke and Tocqueville, The New Communitarians and The Crisis of Modern Liberalism.