Wednesday, August 11, 2010

Toward a Better Diorama

As is often the case, Glennzilla very ably articulated one of the central points I so labored to make in criticizing Ross Douthat a few posts back. Greenwald:

[T]he mere fact that the State does not use the mandates of law to enforce Principle X does not preclude Principle X from being advocated or even prevailing. Conversely, the fact that the State recognizes the right of an individual to choose to engage in Act Y does not mean Act Y will be accepted as equal. There are all sorts of things secular law permits which society nonetheless condemns. Engaging in racist speech is a fundamental right but widely scorned. The State is constitutionally required to maintain full neutrality with regard to the relative merits of the various religious sects (and with regard to the question of religion v. non-religion), but certain religions are nonetheless widely respected while others -- along with atheism -- are stigmatized and marginalized. Numerous behaviors which secular law permits -- excessive drinking, adultery, cigarette smoking, inter-faith and inter-racial marriages, homosexual sex -- are viewed negatively by large portions of the population.

The State's official neutrality on the question of marriage does not even theoretically restrict Douthat's freedom -- or that of his ideological and religious comrades -- to convince others of the superiority of heterosexual monogamy. They're every bit as free today as they were last week to herald all the "unique fruit" which such relationships can alone generate, in order to persuade others to follow that course. They just can't have the State take their side by officially embracing that view or using the force of law to compel it.
Greenwald likewise ended with roughly the same concluding point as I did:
[I]f they're as right as they claim they are, they shouldn't need to coerce others into acceptance through legal discrimination. Their arguments should prevail on their own. The fact that they believe they will lose the debate without that legal coercion speaks volumes about how confident they actually are in the rightness and persuasiveness of their views.
The striking thing about this is not simply that Greenwald and I came to the same conclusions independently; I would gladly accept the accusation that reading Glenn Greenwald pretty regularly these past few years has shaped my thinking and writing about politics. Rather, it suggests how blindingly obvious these contentions are: they fall in your lap if you start with the assumption that the USA is a secular society, meaning only that our laws are designed to remain as neutral as possible on religious questions. If they're doing it right, jurists acting within our constitutional order resist picking favorites from among the wide variety of faith-informed or faith-based truth claims.

Arguments such as Douthat's -- and I single out his reasoning only as an illustration of a distressingly widespread mode of thought -- raise the question of what his starting assumptions are since they are evidently not secular. Exactly where does he locate the "ideal" (his word) that legal marriage can only be one man and one woman? To be clear, I think I know where he derives that ideal -- it's no mystery; what I wonder is how or why he connects that source with our body of laws.

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