There is no room for naivety about our current cultural crisis. Only within the evangelical world naivety is the dominant problem. Young evangelicals who are increasingly sympathetic to their cause want to make nice with gay marriage while supporting religious liberty, but until we are given arguments for how they can coexist given our current legal and political history, we have no more reason to think that is possible than that we could unwind marriage from politics altogether (which is the ultimate libertarian fantasyland).
Now that our “insane national freak-out” about Indiana’s religious liberty bill has subsided a little, it’s worth stepping back to reflect on what happened and what the drama might mean for religious conservatives. Ross Douthat said nearly everything that needs to be said in his two posts; I note up front that I agree with his substantive analysis of the law completely, and am inclined to agree with him on the question of making cakes.
Where to begin? Perhaps with “the hypotheticals,” which many progressives deployed to create anxiety that Indiana’s RFRA would usher in anarchy or weave any number of discriminatory practices into our social fabric. Though it was written in the middle of Arizona’s scrum, Jonathan Merritt’s post at The Atlantic is a fine example: Merritt warns conservative evangelicals that protections for discrimination could be used by a Unitarian cake-maker against conservative evangelicals.
Some writers mocked the progressive use of such hypotheticals, but I think we should take them seriously. Like all such argumentative tactics, hypotheticals can function in one of two ways: they can be predictive of “slippery slopes” that could become more plausible if a particular law is passed, or they can be attempts to find some limiting principle that would apply regardless of the social conditions. I take it that in religious liberty conversations, progressives are generally deploying such hypotheticals in the second way.
And that’s exciting. It’s great that progressives are suddenly interested in using reductios to find limiting principles to particular legislative decisions. After all, it wasn’t so long ago that we were told deploying hypotheticals was merely fear-mongering. Back when we were still talking about whether gay people could marry, conservatives argued that if the courts expanded marriage they would have no fundamental basis for limiting the institution to couples. Even if polygamy never comes about, there would be no principled basis for preventing it. That concern was resoundingly dismissed; only now we’re supposed to take such hypotheticals Very Seriously.
Two asides, though, before moving on: First, even if framed as predictions, the polygamy reductio is much more plausible than those offered in the past two weeks. Given that our great corporate overlords are comfortable deploying polyamory in advertisements, will anyone be very surprised in a decade when the polygamy cases start working their way through the courts? Second, the search for limiting principles in RFRA cases is impossible, since it is a guideline that the courts adopt, which means it proceeds essentially case-by-case. But still, conservatives shouldn’t oppose the use of such hypotheticals per se in order to identify the underlying principles and limits of the law.
Still, limiting principles are a knife that cut both ways. Douthat’s list of questions for progressives pursuing LGBT rights is worth re-reading at this point, even if it risks, you know, giving people ideas.
Let’s pick one that might affect many of our readers more than others: the question of whether religious colleges and universities like Biola, or Liberty, or Wheaton, or any others that maintain sexual behavior standards for students and faculty that prohibit same-sex sexual activity should lose their tax-exempt status. At first blush, this scenario seems too fanciful to be meaningfully predictive. As an anonymous commentator suggested to Rod Dreher, the tax-exempt status of such institutions is “too deeply embedded in American thought and law to be at serious risk right now.”
But the obvious rejoinder is that twenty years ago, the concept of marriage being limited to one man and one woman was too deeply embedded in American law and culture for anyone to think it was at serious risk. Everyone expects the Supreme Court to definitively bring that restriction to an end in June. Even if the question is only one of principle, and not a prediction, it still deserves an answer from those who are sympathetic to the LGBT cause: why shouldn’t Christian institutions of higher learning lose their tax exempt status and their federal funding (via student aid)? For most institutions, losing both would be a death blow: but if our progressive friends are serious about ending an intrinsically and structurally discriminatory regime of sexual mores (on their view), wouldn’t they have every reason to pursue such measures?
Now, that may be an unpleasant scenario for those who went to such religious institutions and have fond memories of them. It may even be distasteful to those with unhappy memories and who think such schools should change their policies and doctrines. But there is a wide gap between disliking the fact that the pursuit of LGBT rights makes some people mean (as the unfortunate pizza owners discovered) and providing principled reasons for why, given the logic that the LGBT cause has used to advance its own rights and that sympathizers have adopted, such restrictions and prohibitions should not be pursued.
Such are the stakes of the great dispute that is upon us about how gay rights can co-exist with religious liberty. Which is why it’s curious to read libertarian writers like David Harsyani or Conor Friedersdorf or Ben Domenech seem surprised by the pervasiveness of the conflict. Friedersdorf thinks that it is only a “faction” of gay marriage proponents that want to exclude those who have objections (religious or otherwise) from meaningful participation in public life. But while he’s right Julian Sanchez persuasively argues our current situation with respect to gay rights is nothing like Jim Crow, the LGBT community has made all of its legal and political gains the past twenty years by arguing that those who object are motivated by animus or bigotry. The one lesson that everyone in the gay marriage dispute should agree on is that the law has a pedagogical function: having been told (now) by the Supreme Court that objectors are motivated by animus, our society is simply starting to believe it. What else would we expect? It is precisely what conservatives have been arguing about the institution for the past twenty years, and on this they have once again been vindicated.
Or consider this otherwise excellent article by Kirsten Powers, whom I enjoy reading and admire a great deal for her unabashed willingness to say precisely what she thinks. She chastises the LGBT community for being sore winners—but that framing of what’s happening presupposes that having won, the LGBT community would shift the basis and terms of the arguments which had gotten them there. It’s not like the advancement of the LGBT cause was built on the presupposition that those who oppose gay marriage are misguided but otherwise okay people. The LGBT movement, by and large, really believes its own (silly) rhetoric about being on the “right side of history,” and damned if they won’t let a regressive business owner or two get in the way of bringing that history about. They aren’t being “sore winners”: they’re simply in the process of working out the terms of the case they have so successfully made.