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High Noon for Marriage

7:32 AM, Mar 27, 2013 • By JONATHAN V. LAST
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To many parts of the left, same-sex marriage isn’t just about “equality.” It’s about a bunch of other things, too. It’s a first step on the road to radically redefining marriage to include polygamy (and generally “weakening” the institution altogether)—the overall goal being to “transform the notion of family entirely.” This isn’t scaremongering, by the way. As Ryan Anderson helpfully demonstrates, gay-marriage advocates explicitly advance these ideas. There’s even more here. So please, do them the courtesy of taking them at their word.

Yet one gets the sense that, at root, the same-sex marriage project isn’t even really about opposition to the family as it is currently conceived—no matter how outmoded and bourgeois it may be. No, the family is just necessary collateral damage in the real struggle for sexual liberation. I suspect that, to the left, arguments about contraceptives, abortion, and gay marriage are really all about the same thing: the idea that sexual behavior must not be discriminated against, by anyone, in any sense. There must be no adverse outcomes; there must be no distinctions made; and any form of disapproval is tantamount to discrimination. Other freedoms—of speech, of liberty, of thought—may be, to some extent, negotiable. But for the left, sexual freedom is a paramount freedom.

The opponents of same-sex marriage, on the other hand, are just as deeply invested in a different freedom—religious freedom. Because they recognize that the same-sex marriage project is headed directly for conflict with religious organizations. Chai Feldblum is a thoughtful and honest proponent of same-sex marriage who serves on President Obama’s EEOC and was, before that, a professor at Georgetown Law School. Here’s Feldblum explaining the inevitable conflict between gay marriage and religious freedom to Maggie Gallagher a few years ago. This is long, but important:

“Gay rights supporters often try to present these laws as purely neutral and having no moral implications. But not all discrimination is bad,” Feldblum points out. In employment law, for instance, “we allow discrimination against people who sexually abuse children, and we don’t say ‘the only question is can they type’ even if they can type really quickly.”

To get to the point where the law prohibits discrimination, Feldblum says, “there have to be two things: one, a majority of the society believing the characteristic on which the person is being discriminated against is not morally problematic, and, two, enough of a sense of outrage to push past the normal American contract-based approach, where the government doesn’t tell you what you can do. There has to be enough outrage to bypass that basic default mode in America. Unlike some of my compatriots in the gay rights movement, I think we advance the cause of gay equality if we make clear there are moral assessments that underlie antidiscrimination laws.”

But there was a second reason Feldblum made time for this particular conference. She was raised an Orthodox Jew. She wanted to demonstrate respect for religious people and their concerns, to show that the gay community is not monolithic in this regard.

“It seemed to me the height of disingenuousness, absurdity, and indeed disrespect to tell someone it is okay to ‘be’ gay, but not necessarily okay to engage in gay sex. What do they think being gay means?” she writes in her Becket paper. “I have the same reaction to courts and legislatures that blithely assume a religious person can easily disengage her religious belief and self-identity from her religious practice and religious behavior. What do they think being religious means?”

To Feldblum the emerging conflicts between free exercise of religion and sexual liberty are real: “When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.” Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.

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