But the fact that silenced and marginalized church-goers actually constitute a majority only makes the process by which they are denied their full democratic liberties all the more insidious. For those in doubt as to how this process works, California has provided a prime illustration: through a costly and bruising electoral fight, defenders of natural marriage passed a measure (Proposition 8) acknowledging marriage as the union of man and woman—only to have a single unelected federal judge, Vaughan Walker, strike down the voter-approved measure because he, a “now-outed” homosexual, disapproved of the moral and religious impulses of those who championed it! In this fashion, a progressive anti-anti-homosexual elite dramatically diminishes the political liberties of those who wish to affirm an understanding of marriage consistent with reality as affirmed by nature, history, biology, reason, as well as religion. It is this kind of assault on religious liberty that legal scholar Matthew J. Franck has in view when he remarks, “The freedom to participate fully in civic life, to offer oneself to others in civil society, conscientiously on one’s own terms as a religious person professing one’s beliefs, may be jeopardized by this new dispensation.”(11)
It is precisely that liberty-denying process that elite activists are trying to advance through the legal notion of same-sex marriage. For outlaws, enforcement of the law can mean only punishment—usually loss of freedom. That contraction of freedom is exactly what those advocating same-sex marriage seek: they want to lock those who oppose homosexuality into as small a box as possible. Just how terribly small that box can be is illustrated by the case of the fertility specialist in California who in 2001 declined to artificially inseminate a lesbian, though he referred that woman to a colleague who would perform that service for her. When the doctor, who happened to also be a devout Christian, later lost a discrimination suit filed by the offended lesbian woman, he found no relief upon appeal to the California Supreme Court, which found—unanimously—that this doctor’s religious convictions did not afford him even the very, very minimal freedom of declining to perform a medical procedure that violated his convictions!
The same kind of liberty-abridging legal logic worked against the religious convictions of a New Mexico photographer who in 2006 declined to take pictures of a same-sex couple’s “commitment ceremony” because of her religious objections to homosexuality, only to find herself fined $6000 by the state Human Rights Commission for having discriminated against the couple. Predictably enough, this logic now works to constrain the consciences of chaplains in the new gay-friendly military that Obama and his allies have created: credible reports now indicate that military chaplains must “embrace the new openly homosexual military, resign from service, or face court-martial for their ‘religious, conscience’ objections.”(12) All these assaults on religious liberty have occurred in jurisdictions without the legal innovation of same-sex marriage. That the enactment of same-sex marriage multiplies such assaults is evident in the way that justices of the peace in Massachusetts have been forced to resign if they decline, on moral or religious grounds, to perform homosexual weddings. Similar legal coercion compelled Catholic Social Services to suspend its handling of adoptions in the Bay State because of its refusal to violate its religious principles by placing children with homosexual couples.
This disturbing pattern of hostility to religious freedom should leave little doubt as to the consequences of broader enactment of homosexual marriage: it can only mean fewer freedoms for men and women of religious conviction. “Both freedom and the desire for freedom,” Nisbet sagely remarks, “are nourished within the realization of spiritual privacy and among privileges of personal decision.”(13) But it is precisely personal decision—in expression and in conduct—which homosexual activists wish to eradicate, whenever such decisions draw inspiration from religious or moral principles at odds with homosexual emancipation. In this context, Franck warns, “We are in danger of telling many millions of our fellow citizens that they may not act as their conscience guides them in exercising the fundamental right of self government.”(14) As the fertility specialist in California, the photographer in New Mexico, the justices of the peace in Massachusetts could all testify, when anti-anti-homosexual principles triumph, Americans asked to engage in acts that would violate their conscience by implying acceptance or endorsement of homosexual acts cannot even respond with that precious shred of self-preserving liberty that Herman Melville’s Bartleby the Scrivener claims with the simple words, “I prefer not to.”(15)
Individual freedom seemed to be uppermost in the minds of the High Court justices who struck down Texas’s anti-sodomy law. In justifying their decision, Anthony Kennedy invoked a concern for “the liberty of all,” and then elaborated in elevated language: “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.”(16) But Americans may increasingly wonder why this spatial and transcendent liberty and autonomy of self do not extend to those Americans who want to distance themselves from homosexual acts, to stand apart, as it were, from those who engage in such acts. Why is that autonomy of self, that transcendent dimension of liberty, not protected by law or court proceedings?
Dubious Claims of Homosexual Activists
Make no mistake: homosexual activists do, in fact, know that advancing their agenda means reducing the liberty of Americans. They hide that reality behind rhetoric of freedom, just as they hide their exclusion of religious Americans from the public square behind rhetoric of inclusion, and their extirpation of every deviation from the approved attitude toward homosexuality behind the rhetoric of diversity. But at bottom, these activists know that they are denying their fellow Americans a sizable measure of freedom. They justify this denial in two ways, both dubious.
First, advocates of gay rights—including the right to marry—manifest a surprising eagerness to believe a “genetic basis of homosexuality,”(17) despite clear scientific refutation of the very notion of “a gay gene.”(18) Apparently, homosexual activists follow this line of logic: since genes have made homosexuals “what they are,” they are not free to be otherwise. Since homosexuals are not free to be otherwise, the government is justified in denying liberty of those who would discriminate against them. This surrender to genetic determinism is stunning, especially coming from a segment of the political spectrum known for its resistance to genetic determinism in other contexts, such as those involving questions of racial or gender characteristics.(19) Apparently, homosexual activists do not want anyone to notice that all the arguments that their political allies have made against the decidedly illiberal and dehumanizing logic of genetic determinism in other contexts tell against their reliance upon genetic determinism in advocating restrictions on the liberty of those who would criticize homosexual conduct.
The second justification for restricting the freedoms of those who oppose homosexuality is that of asserting that this freedom has no content except that of hatred and bigotry, or that this freedom amounts to nothing but the equivalent of racism. So those who deny this freedom are not denying a freedom that has any real substance anyway. This line of justification will not bear scrutiny. In the first place, surveys reveal that, as a group, African Americans—who should be the very first to recognize a fundamental kinship between racial bias and resistance to homosexuality—are actually more resistant to homosexuality than are whites,(20) while polling data indicate that African Americans support measures such as California’s Proposition 8 significantly more than whites.(21)
But further weaknesses emerge in the argument that opposition to homosexuality amounts to nothing but bigotry and hatred and that therefore denying Americans the freedom to oppose homosexuality does not constitute a serious infringement of their liberty. The long list of those who have expressed opposition to homosexuality has included some intelligent and gifted individuals. With his brilliant poetic masterpiece The Divine Comedy culminating in a vision of “the Love that moves the Sun and the other stars” (33. 146, Ciardi translation), Dante seems like something other than a hate-filled bigot. Yet he opposed homosexuality, placing homosexuals in the Seventh Circle of the Hell he depicts in his Inferno. As one of the architects of quantum physics, Edwin Schrödinger would seem to be more than a dull conformist. Yet he lamented the increasing ubiquity of homosexuality in higher education.(22) As a brilliant opponent of “all the smelly little orthodoxies” of the twentieth century, George Orwell would not normally be classed as an unthinking exponent of bias. Yet he opposed homosexuality, and as a twenty-first-century critic has remarked, “Orwell’s anti-homosexual position (definitely not ‘homophobia,’ which would suggest irrational fear) flowed naturally from beliefs and values about which he was quite forthcoming.”(23)
Surprisingly, even the homosexual poet W. H. Auden—famous both for his insistent honesty and his astonishing prosodic talents—said some very negative things about homosexuality. “I’ve come to the conclusion that it’s wrong to be queer,” Auden said. “In the first place, all homosexual acts are acts of envy. In the second, the more you’re involved with someone, the more trouble arises, and affection shouldn’t result in that. It shows something’s wrong somewhere.”(24) And then there is Stephen Spender, another great twentieth-century British poet who was homosexual as a young man, but who, after renouncing homosexuality went on to marry two women (not at the same time!). Spender said, “I find the actual sex act with women more satisfactory [than the sex act with men] … To me it is much more of an experience.”(25)
Opposition to homosexuality took a more intriguing form in the life of the great German novelist Thomas Mann, who felt the pull of homoerotic impulses (as any reader of Death in Venice will recognize). For religious reasons, Mann chose not to act on those impulses and to live a life of abstinence. As Mann’s biographer explains, for Mann, “Homosexual courtship … is from the Devil,” while “His chastity is love for the purity of God.”(26)
When Law and Morality Collide
Americans have every reason to ask what is left of an intellectual freedom that does not include the freedom to examine and to affirm the views expressed by great poets and novelists. They may also wonder about the authenticity of an intellectual freedom that does not allow full and frank discussion of research limning a troubling pattern of co-morbidity linking homosexuality to a wide array of both psychological(27) and physical illnesses.(28) Nor would a genuine intellectual freedom prohibit candid public discussion of the remarkable promiscuity that researchers have documented within the homosexual population.(29)
Of course, for most Americans opposed to homosexuality, the freedom that matters most is not the freedom to endorse the views of Dante or Auden, Orwell or Mann. Nor is it the freedom to probe the latest research in homosexual epidemiology or sexual conduct. The freedom that matters most—and the freedom most imperiled by the legal definition of a homosexual liaison as a marriage—is the freedom to affirm a religiously grounded sexual morality. Religiously committed Americans regard this as a very important freedom indeed. As Franck has explained, “For the religious person who holds a traditional view of sexual morality, the holding of that view is not accidentally related to his religious faith. It is inseparable from it.”(30)
Consequently, it can only gall these Americans when homosexual activists use the law—particularly in the radical redefinition of the marital law—to deny them the freedom to express and to act on their convictions about sexual ethics. No doubt, homosexual activists expect everyone to accept the legal redefinition of marriage they are promoting. But they forget how many Americans recognize a divine law transcending and standing above merely human law. As Aquinas observed, “Human laws are either just or unjust. If they are just, they have the power to bind our conscience because of the eternal law from which they are derived.” But, quoting Augustine’s assertion that “an unjust law does not seem to be a law at all,” Aquinas reasons that unjust laws “do not bind the conscience.” In fact, Aquinas goes so far as to assert that if laws are unjust because they are “opposed to the divine good,” then “such laws must never be observed, because ‘one must obey God rather than men’ (Acts 5:29).”(31)
Even Americans who do not draw their legal philosophy from Aquinas should recognize that when the law sets itself in opposition to the moral convictions held by a great many citizens, it puts those citizens in a difficult and painful circumstance. That circumstance is well described by legal theorist Frederick Bastiat: “When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law.”(32) Disrespect for the law may become particularly intense among parents who see the law using tax revenues to pay for “gay-friendly curricular materials” in public schools increasingly hostile to the sexual ethics they want to instill in their children.(33)
Since survey sociologists have recently established that America’s religiously devout citizens are the nation’s most generous, selfless, honest, civic-minded, and community-spirited,(34) the nation’s cultural and legal elite may want to pause before using homosexual marriage as a legal weapon for limiting the religious freedoms of those citizens. Do they really want to undermine respect for the law among tens of millions of Americans? Do they really want to imbue in Americans who are, by nature, selfless, civic-minded and community-spirited a new feeling of alienation from and resentment toward their government?
Of course, millions of Americans who oppose homosexual acts for religious reasons will not want to simply wait while the elite decide what restrictions to impose on their liberties. They will want to vigorously protest every incursion upon those liberties, and they will want to lend their full support to lawmakers sympathetic to their concerns. Americans with a mature religious faith will understand the need to avoid hateful or spiteful references toward homosexuals. They will indeed recognize that their witness for truth will be most effective when it is expressed with empathy and compassion, including especially a merciful compassion for those who are suffering from AIDS or other diseases often found among homosexuals. But devout Americans can express genuine love for homosexuals without accepting or endorsing their sexual behavior. An authentic faith indeed requires both firm opposition to homosexual acts and unfailing love for those who commit such acts.(35)
Americans motivated by religious faith will be zealous to protect the liberty to express and to act on that faith. That will mean vigorously opposing same-sex marriage whenever possible. Where such opposition appears—at least in the short run—futile (as in Massachusetts, Iowa, New York, and Washington, D.C.), perhaps it is time for sympathetic law-makers to start enacting “conscience clause” protections—comparable to those that protect medical professionals from being compelled to perform abortions—for justices of the peace, fertility doctors, wedding caterers and photographers, and others who will find themselves forced to choose between their careers and their convictions. If they cannot prevent the enactment (often by judicial fiat) of same-sex marriage laws, lawmakers should at least be able to give an opt-out to citizens who object to homosexuality for religious reasons. Bartleby would understand.
This article first appeared in the Spring 2011 issue of The Family in America and is reprinted with permission of the author. The first part of this essay appeared in Crisis Tuesday, January 1.
11. Matthew J. Franck, “Religion, Reason, and Same-Sex Marriage,” First Things (May 2011), p. 51.
12. “Army: Court-Martial Chaplains for ‘Religious, Conscience’ Objection to Homosexuality,” Catholic Citizens of Illinois, March 24, 2011, http://catholiccitizens.org/press/pressview.asp?c=52791.
13. Nisbet, The Quest for Community, p. 220.
14. Francky, “Religion, Reason, and Same-Sex Marriage,” p. 50.
15. Herman Melville, “Bartleby the Scrivener” (1853), American Literature: The Makers and the Making,ed. Cleanth Brooks, R. W. B. Lewis, and Robert Penn Warren (New York: St. Martin’s, 1973), 1:842–59.
16. Anthony Kennedy, with John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, John Geddes Lawrence and Tyron Garner v. Texas.
17. Cahn and Carbone, Red Families v. Blue Families, pp. 65 and 226, 22n.
18. Cf. Ian Stewart, The Mathematics of Life (New York: Basic, 2011), pp. 118–19.
19. Cf. Leonard A. Cole, review of Not in Our Genes: Biology, Ideology and Human Nature by R. C. Lewontin, Leon J. Kamin, and Steven Rose, Politics and the Life Sciences 4.2 (1986): 200–201.
20. Cf. Gregory B. Lewis, “Black-White Differences in Attitudes toward Homosexuality and Gay Rights,” The Public Opinion Quarterly 67.1 (2003): 59–78.
21. Cf. Patrick J. Egan and Kenneth Sherrill, “California’s Proposition 8 and America’s Racial and Ethnic Divides on Same‐Sex Marriage.” Working Paper, January 2010, http://as.nyu.edu/docs/IO/4819/marriagedivides.pdf.
22. Cf. Jim Baggott, The Quantum Story: A History in 40 Moments (New York: Oxford, 2011), p. 150.
23. David Ramsay Steele, “My Orwell Right or Wrong,” review of Why Orwell Matters, by Christopher Hitchens, Libertarian Alliance, 2003, http://www.la-articles.org.uk/orwell.pdf.
24. Arthur Kirsch, Auden and Christianity (New Haven: Yale University Press, 2005), pp. 172–73.
25. John Sutherland, Stephen Spender: A Literary Life (New York: Oxford University Press, 2004), p. 168.
26. Hermann Kurzke, Thomas Mann: Life as a Work of Art. A Biography (Princeton: Princeton University Press, 2002), pp. 412–14, 486.
27. Theo G. M. Sandfort et al., “Same-Sex Sexual Behavior and Psychiatric Disorders,” Archives of General Psychiatry 58 (2001): 85-91; Michael King et al., “A Systematic Review of Mental Disorder, Suicide, and Deliberate Self-Harm in Lesbian, Gay and Bisexual people,” BMC Psychiatry 8 (August 18, 2008): 70.
28. Compared to men who do not, men who have sex with men are more than 46 times more likely to contract syphilis, and more than 44 times more likely to contract HIV. “Gay Men Still More Likely to Contract HIV,” BC Medical Journal 52.4 (May 2010): web.
29. M. A. Bellis et al., “Re-Emerging Syphilis in Gay Men: A Case-Control Study of Behavioural Risk Factors and HIV Status,” Journal of Epidemiology and Community Health 56.3 (2002): 235–36.
30. Franck, “Religion, Reason, and Same-Sex Marriage.”
31. Thomas Aquinas, “Aquinas on Law,” Medieval Source Book, ed. Paul Halsall. Fordham University Center for Medieval Studies, 2006. Web.
32. Frederick Bastiat, The Law (1850; rpt. New York: Cosimo Classics, 2006), p. 11.
33. Cf. Charles J. Russo, “Same-Sex Marriage and Public School Curricula,” What’s the Harm? Does Legalizing Same-Sex Marriage Really Harm Individuals, Families, or Society? ed. Lynn D. Wardle (Lanham, Md.: University Press of America, 2008), pp. 355–73.
34. Cf. Robert D. Putnam and David E. Campbell, American Grace: How Religion Divides and Unites Us (New York: Simon and Schuster, 2010).
35. Cf. Ron Sider, “Bearing Better Witness,” First Things (December 2010), pp. 47–50.