It is often the fate of conservatives to be concerned about the fire code and occupancy limit at someone else’s party. Never more conspicuously than concerning the Supreme Court’s gay marriage decision, Obergefell v. Hodges.
With many friends and relatives celebrating the outcome, judicial conservatives are generally anxious about the process. Beyond the question “Who benefits?,” conservatives are asking, “Who rules?” Should it be judges determining and applying an evolving conception of human rights, or legislatures engaged in the slower, messier work of self-government?
Social conservatives are correctly upset about a process that grants, in an act of self-dealing, enormous power to an unrepresentative clique of lawyers who cannot imagine any serious moral deliberation beyond their immediate social circle. But social conservatives also need to recognize that, before Obergefell, the process of self-government was moving with unaccustomed haste in the direction of state recognition of gay marriages. And this reflects an extraordinary shift in public opinion toward acceptance of the practice.
Why has the gay rights movement been so dramatically successful? Certainly, the people who came out to family and friends — often at considerable risk and cost — humanized an abstract debate. Fictional gay characters — see “Glee” and “Modern Family” — did much the same.
But perhaps the most significant shift in strategy came from public intellectuals such as Jonathan Rauch and Andrew Sullivan, who urged gays to embrace the conventional, bourgeois practice of marriage. What had seemed to many Americans a sexual liberationist movement requested access to the institution designed to limit sexual freedom for the sake of social order and effective child-rearing (while delivering joys that arise only out of commitment). Many gay rights advocates essentially made conservative arguments — concerning the individual and social benefits of faithfulness — to secure their legal goal. It is a form of gay rights that Middle America — already inclined to live and let live — could readily embrace.
As did a majority of the Supreme Court. In the course of the ruling, Justice Anthony M. Kennedy found the “lifelong union” of marriage to be of “transcendent importance.” “Far from seeking to devalue marriage,” says Kennedy, “the petitioners seek it for themselves because of their respect — and need — for its privileges and responsibilities.”
Gay people are joining a social institution that heterosexuals have often made a hash of and just as it is fading among some social groups. We have no idea if gays will do better, worse or the same. But they now have a chance to leave their imprint.
What happens to people and institutions that continue to embrace the traditional view of marriage — the one that President Barack Obama held when he was elected? This conviction has been declared an illegitimate basis for public policy. But will the state regard interactions with institutions that embody traditional views to be contaminating? How will grants to Catholic anti-poverty programs or to students attending evangelical colleges be affected?
The tens of millions of people holding a traditional view of marriage are not generally motivated by animus (though some, of course, are). Many embrace a certain reading of their sacred religious text or accept the moral teachings of a religious institution. You may disagree with that reading and teaching, but the people and institutions that hold them are not going away.
Some of the main architects of the gay marriage movement, including Rauch and Sullivan, are genuine pluralists. They do not intend the advance of gay rights to become a campaign to defund and delegitimize traditional institutions. Such a legal effort would guarantee decades of cultural warfare. Obergefell would then fall into the category of Roe v. Wade, a source of national division, rather than Brown v. Board of Education, a source of inspiration.
Those who believe that religion in the United States is about old white men telling them who to sleep with really don’t know much about religion in America. They might visit, for example, Catholic Charities Archdiocese of New Orleans, which, in the wake of Hurricane Katrina, helped a community crawl back into functionality. This was done with both government and private funds. Religious service providers across the country are meeting needs that most people don’t even notice. Will a legal assault on these institutions be defined as a prerequisite for equality?
The alternative is a principled pluralism in which gay people can enjoy the institution of marriage and religious institutions can organize, educate and serve according to their beliefs. In a post-Obergefell world, this is an outcome many of us could welcome.