Well, it's been exactly one week since Obergefell v. Hodges was handed down by the Supreme Court, and the legal recognition of the marriages of gay and lesbian citizens was pronounced a constitutional right. Considering how quickly conversations develop in our age of 24-hour punditry, does that mean everything that needs to be said has already been said, repeatedly? Probably. But since when has that ever stopped a blogger from doing his job?1) I'm happy that the Supreme Court voted the way they did, because the legalization of same-sex marriage is a good thing. It would have been better it this change to the laws in the U.S. had come about more democratically, as was in the case the United Kingdom, the Netherlands, Argentina, Hawaii, Illinois, Washington, and more than a dozen other countries and American states, rather than through judicial fiat. But, for better or worse, judicial fiats that wrest--usually with more passion and poetry than solid legal reasoning--divisive, complicated, and historically-fraught arguments into a constitutional mold and make pronouncements about them are a long-standing feature of our system (just consider the vitally important Brown v. Board of Education decision, which did a much better job justifying its conclusion in terms of psychology and sociology than law). Given that I basically accept as correct, if not the entirety of his specific reading of the 14th amendment, then at least the substance of Kennedy's basic claim that companionate marriage ought to be a guaranteed right to all adult Americans, both heterosexual and homosexual, I recognize this decision as a triumph for democratic justice, if not, as some suggest, democratic governance itself.
2) Of course, we can't just wave a wand and get around Kennedy's interpretation of the 14th amendment; if the liberty for gay and lesbian citizens to marry really is going to be understood as a fundamental right guaranteed under the equal protection clause, then it must necessarily have a large legal apparatus working in support of it, and thus many of the worries over maintaining religious protections and exemptions for traditionalist churches (like my own!), whose official doctrine claims such marriages should never be accepted as authentic, have some real validity. After all, such institutions would be speaking out against the exercising of a guaranteed freedom--and while freedom of speech may protect their teachings, it may not save their property or schools, as I and many others have written. Unfortunately, we Americans don't live in the the pre-Employment Division v. Smith world where the requirement of the government meeting a "compelling interest" standard held in matters of adjudicating laws when there were conflicts over religious belief, because the primacy of religious belief and exercise was taken for granted; instead, we live in a world of RFRA exceptions and work-arounds, which are bound to face challenges. I'm not especially worried, and find more than a little of the conservative reaction to the ruling generally rather paranoid. But still, I can't help but feel that if socially conservative churches are obliged to play the (reductively individualistic) game of seeking to take advantage of minority protections, then something important has been lost.
3) What is that thing? The positive account of the goods which churches and other organizations of faith provide to society. And these aren't just civic goods, pace Tocqueville; I'm talking about the shaping of the norms and expectations which form our religious establishment or our civil religion--something that I continue to see plenty of evidence of, even if the more orthodox tend to deride its current form as "moralistic therapeutic deism" (which, as I've argued, isn't necessarily as empty or as un-Christian as some make it out to be). Granted, our current civil establishment in this country is a highly spiritual and post-denominational one--but those very words (and the deism they reflect) would have even less heft (and present even less of a challenge to the self-obsessions of late modern liberalism) if the moral contributions of illiberal denominations were chased entirely from the public square. It would be a terrible and ironic tragedy if same-sex marriage itself didn't lead to the kind of social dysfunctions--an even more commodified and personalized vision of the moral order--which its opponents have been warning us about for years (which I think is exactly the case), but rather the fact that Biblically-grounded churches feel obliged to go defensive and narrow so as to avoid legal assaults does lead to that kind of increased individualism. In that case, the critics will have turned out to be right about the consequences, but not the cause. I hope (though I am doubtful) that our liberal order won't evolve in that direction.
4) Why don't I want it to? Because I believe that we all need--that we all make use of, all the time, whether we recognize it of not--cultural resources and inheritances that are not rationally decided upon, but rather are conveyed authoritatively through the communities by which we learn to speak and think and form attachments, and that therefore efforts to subject the organic development and conveyance of those sources of tradition to some kind of self-generated ideological test works against our whole moral anthropology. But if that's the case, and I acknowledge the importance of respecting a place for (most, if not all) illiberal counter-veiling forces in American life, then why do I agree with legally changing the definition of marriage anyway? Because marriage is one of those tools of cultural conveyance; it has changed as our social and economic environments have changed, and while the movement away from a primarily intergenerational conception of marriage towards an interpersonal one has had plenty of costs (the moderation of the social expectation of familial and community affection and responsibility, for one), there have been many egalitarian benefits as well. Do they balance out? Actually, when you consider the highly uneven consequences of the sexual and divorce revolution, maybe not--but since same-sex marriage is about, you know, marriage, making it a guaranteed possibility for America's lesbian and gay citizens really shouldn't be understood as a contribution to these negative trends, but as one small additional way to validate those choices--choices of commitment and permanence, however often or rarely realized in practice--which work against them.
5) Of course, the above flexibility can only make sense to those conservatives with whom I share a concern about our collective moral constituting through cultural practices and connections if I admit that I disagree with the foundational, theological and metaphysical place which many of them grant to a specific, particular type of heterosexual marriage in their conception of the social order. Which I do. Within my own Christian tradition, I just plain am unpersuaded that the whole meaning of the (valuable, but uncanonized!) statement on the importance of families depends upon defending to the death a couple of lines about gender identity and heterosexual complementarity. Within the orthodox Christian tradition generally, you have various interpretations of a few passages of scripture--and I confess that my own hermeneutics are such that I don't think I am violating the faith by setting aside the descriptions of homosexuality in Leviticus or the writings of Paul as essentially perverted anymore than I think I am compromising Christianity by setting aside those same texts' condemnations of eating shellfish or women speaking in church--and you have the whole teleological framework of male and female human beings as playing necessarily complementary roles in the moral ecology of creation (a position very thoughtfully associated with hard questions about technology, the environment, and an economy premised upon constant expansion by Pope Francis in his most recent encyclical--see paragraph 155 in particular).
6) Unlike many other elements of the anti-same-sex marriage argument, this side of it--the connection between nature, culture, and the construction of a moral order--has troubled my own thinking for a long time. At first (more than a decade ago, near the very beginning of my blogging career), that struggle mainly centered around how to understand the appeal which natural law reasoning had for some Mormon thinkers, and the historical problem that posed for a church whose own history has included, shall we say, significant marriage flexibility! Today, my concern is more social and economic: I can see the way in which the move away from thinking about marriage in terms of generation-building and towards emotional-enrichment instead perhaps really is aligned with the establishment of an form of life which is rootless, self-centered, and sacrifices the virtues of place and connection on the altar of disposability and constant profit-hungry change. Same-sex marriage, in this sense, is one more triumph for capitalist individualism, then.
7) Left conservative, quasi-Marixist, Laschian localist, wanna-be anarchist agrarian, Christian socialist that I am, I can't easily disentangle my own thinking from such deep cultural concerns (even if it is the case that even Wendell Berry endorses same-sex marriage now). It would be nice if the same-sex marriage movement, rather than speaking mostly in terms of liberation, had spoken primarily in regards to gay and lesbian citizens being able to contribute even more than they already do to building stability, family, and community (and yes, Nate, you said it first, but then Jonathan Rauch said it before either of us)...but in the end, liberation--and yes, even equal protection--has a cultural and moral, as well as a legal, place. I used to be at least partly persuaded by the many social conservative arguments against same-sex marriage; years later, like tens of millions of others, I changed my mind. I changed it, though, not solely because I decided those social conservative arguments were entirely wrong; I changed it, at least in part, rather because I decided they their authoritarian and sectarian character were causing them to miss something. They were missing the richness, the deepness, the multiplication of opportunities for affection and attachment, the cultural strengthening, which responsible gay and lesbian couplings, and sexual egalitarianism generally, was making possible in society, and particularly in the lives of my daughters. Such diversity, I ultimately concluded, deserved recognition and conservation, not marginalization.
There are plenty of hard questions remaining, I know, and as I mentioned at different points above, plenty of ways in which things from this point on might develop badly. (For one thing, by putting the individual consent bandwagon consistently in front of positive accounts of social construction, the defense of same-sex marriage in Obergefell makes the--I think actually pretty easy--arguments against legalizing polygamy or polyamory harder to maintain.) But for now, when all is said and done, I say: Kennedy did far, far more right than he did wrong last week, when he nationalized the right all my fellow citizens have to marry, and I'm happy for it. And, more importantly, for all of them. So congrats, everyone! Sorry it took folks like me so long.
