Same-Sex Marriage

One Same-Sex Marriage, a Conscientious Objector, and Three Failed Arguments (Part Two)

Introduction

A few weeks ago, I began a short series examining several arguments that have been put forward by Australian advocates of same-sex marriage, many of whom think that conscientious objectors within the commercial wedding industry should not be allowed to withhold their creative talents from a same-sex wedding. In my first post, I critically engaged the claim that a dissenting wedding operator is analogous to a racist business owner who refuses to serve certain people based on the colour of their skin. As anybody who read that piece will know, I found the argument sadly wanting, even as I acknowledged that efforts like mine to rebut it aren’t likely to make a substantial difference to the overall trajectory of the debate. Nevertheless, I continue in the hope that conducting discussions on the basis of a shared commitment to reason and civility — not to mention a sincere and open pursuit of the truth — remains a worthwhile enterprise. This is particularly so in a liberal democracy, which can only properly survive if such conduct is not just accepted in theory, but adhered to in practice.

Religious Expression and Journalistic Fallacies

In this post, I want to tackle a slightly different attempt to legitimize restrictions upon dissenting wedding operators. Like the focus of my previous piece, this argument is based on the alleged analogy between opposition to SSM and forms of conduct that are widely (if not universally) condemned. Unlike the analogy between race and SSM, this one is concerned with narrower questions regarding acceptable (and indeed, unacceptable) manifestations of religiosity.

On the day the results of Australia’s SSM plebiscite were revealed, the journalist Michael Bachelard wrote a piece for the Fairfax press, in which he averred that “religious freedom is, and should be, limited”. This basic thesis formed the backdrop to his specific point: namely, that there is no reason to allow a wedding vendor to refuse service to a same-sex couple on the grounds of a sincere religious belief. In fact, he claimed that there are obvious reasons why such practices should be prohibited, and went on to cite several examples of religiously-inspired activity that is nonetheless deemed illegal. Among them were the Jesus People and Children of God (cultish groups that have engaged in the violent sexual abuse of women and children) and certain Muslim sects that practice female genital mutilation (hereafter, FGM). Bachelard seemed to think that because Australian law already prohibits sexual abuse and FGM — even if they are practiced by sincere religious individuals — there exists clear and principled precedent for restricting the ability of a religious wedding operator to refuse to service to a same-sex wedding.

At a glance, the argument appears to be quite persuasive. But in this instance, outward appearance and substantive reality enjoy little more than a passing acquaintance with each other. Beneath its superficial cogency lie several problems, which taken together prove to be fatal. Bachelard’s claimed analogies aren’t really analogous at all, at least in the relevant sense. Quite the opposite: as we shall see, there are a number of crucial differences between Bachelard’s selected examples, and the case of a dissenting wedding vendor.

Excursus: Pre-empting a Predictable Objection (Yet Again)

I will examine those differences shortly. But before I do that, I want to briefly highlight another erroneous element in Bachelard’s argument. At one point, he criticises the (since aborted) attempts by Liberal Senator, James Paterson, to introduce a SSM bill into parliament, which would have given conscientious objectors in the commercial wedding industry the right to refuse service to a same-sex wedding. Bachelard contends that everyone ought to abide by anti-discrimination laws, “in the name of a civilized society, in not discriminating against people for who they are” (emphasis mine). Bachelard wants to say that a religiously conservative wedding vendor who does not wish to service a same-sex wedding is in clear violation of anti-discrimination law — and is, to that extent, engaging in self-evidently unlawful activity, just as the abusive member of the Jesus People is when he molests children.

Such activity would of course be unjust if it were done on the basis of the italicised portion of the quote above. But is someone who refuses to lend his creative talents to a same-sex wedding really “discriminating against people for who they are”? As I sought to show in my previous essay, that refusal is grounded in one’s beliefs about the true shape and nature of marriage. It is not about the identities or attributes of the participants per se, but about the structure of the event in which they are participating. Indeed, as I also demonstrated in that earlier piece, the parties to an event and the event itself are logically distinct; to oppose the latter does not require a person to hold any animus against, or evince bad faith towards, the former. Dissenting wedding operators who have been hauled before judges and anti-discrimination boards have made it abundantly clear that they are more than happy to serve gay and lesbian couples for a variety of occasions. In addition, the recent ruling by a Californian judge in just such a case suggests that not only is a refusal to service a same-sex wedding not a genuine instance of unfair discrimination; being compelled to provide that service may actually constitute a violation of the rights of the wedding vendor in question. So it’s not at all clear that what Bachelard assumes (which is precisely what he does) is correct. This will be important as we proceed, lest anyone reading this is tempted to rest on the facile riposte that conduct of this kind is unjustly — and obviously — discriminatory.

Same-Sex Weddings, FGM and Sexual Abuse: Some Crucial Dis-analogies

Let’s return, however, to Bachelard’s alleged analogies, and why they fail on multiple levels. To begin, there is a wide gulf in the degree of harm experienced by those who have supposedly been wronged. I would argue that the examples in Bachelard’s article are, in fact, vastly different in their effects. For example, a girl who endures FGM suffers injury in a way that a same-sex couple — who might be faced with the indignity of a religiously conservative florist refusing to arrange their wedding bouquets — does not. Apart from the excruciating pain of the procedure itself, a victim of FGM will likely experience a combination of some (or all) of the following symptoms, often for many years: painful periods, excessive bleeding, labour difficulties, infections, urinary problems, unhealed wounds, or even death.  Of course, a same-sex couple confronted with an unwilling wedding operator is likely to feel aggrieved and embarrassed. No one would want to deny that such an experience could well leave one feeling quite humiliated. Nor would one wish to trivialise such experiences. But the question of degree or proportion is paramount. Certainly, it’s difficult to equate that kind emotional hardship — which may be rather ephemeral, depending on the circumstances — with the acute, long-term physical and psychological suffering a young female experiences as a result of a forced clitoridectomy.  The severity of the one is, I would suggest, far outweighed by the other.

This is not to say that such differences are sufficient in themselves to secure dissenting wedding vendors a reprieve (even if they should give us pause to wonder whether Bachelard has been too hasty in grouping these examples together): if publicly manifesting one’s religious beliefs occasions injury (whether physical or emotional), then perhaps it doesn’t really matter how severe or enduring that injury is. One may argue that even if they do differ in degree, they might nonetheless fall under the same broad rubric of “harm”; as such (so the argument might go), they should be liable to penalties commensurate with the severity of the offence.

But in this instance, a difference in degree is accompanied by, and connected to, a qualitative distinction. Whilst measuring the harm experienced by the victim of FGM or sexual abuse is relatively straightforward, at least in legal terms, things are not so easy in the case of a same-sex couple claiming emotional or dignitary harm as a result of being refused service by a wedding vendor. The former case involves material injury to one’s person — in other words, harms that can be publicly identified and verified. They possess a tangibility that injuries associated with supposedly insulting conduct by another person lack. Indeed, the relationship between a certain act and one’s subjective experience of offence or emotional distress is more remote than the tight, causal connection between the practice of, say, FGM and the experience of personal suffering. Whilst the latter is, by its very nature, bound to cause harm, the extent to which the former causes injury is based on the internal states and perceptions of those who may be in a position to make such a claim. This renders the notion of dignitary or emotional injury far more slippery: whilst the consequences of FGM can be readily defined and substantiated, it is much more difficult to obtain proof of emotional harm that can be publicly countenanced.  This is not to say that it does not, in general, exist, or that those making such claims are lying. It is merely to argue that they are far harder to capture legally than actions that quite clearly violate the liberty of another individual by causing material — and, supervening upon that, psychological — injury.

This brings me to a further dis-analogy: that which concerns the distribution of rights and possible harms between the two parties. In the case of religious leaders practicing FGM or sexual abuse, there is a clear, even radical, asymmetry of rights or entitlements. The right of vulnerable individuals not to be violated by the activity of others automatically negates the alleged “right” of the person perpetrating those acts to manifest his religious convictions in this way. The sacrosanct nature of one’s person is part of the bedrock of our legal system. It is regarded as morally and legally inviolable, such that an act that attempts to impinge upon that status is necessarily deemed unlawful. Religious motivation, however genuine it may be, is irrelevant in these circumstances — as are any claims of “harm” that might be “suffered” by the perpetrator if he were compelled to cease his activity. Moreover, whilst the injuries associated with Bachelard’s examples are readily apparent in the case of the victims, corresponding claims made by perpetrators would be so intangible — so indefinable — as to defy verification.

However, there seems to be a much closer balance between the alleged rights or harms of a dissenting wedding vendor and those of a same-sex couple wanting to wed. Whatever rights a same-sex couple may claim in this context, and whatever alleged distress they may have experienced as a result of being rebuffed — these must be weighed against the rights of a person to maintain integrity and cohesion between inner conviction and outward expression. On the one hand, we have noted that claims of emotional injury or dignitary harm are theoretically problematic. Even on the assumption that such notions could be defined coherently and measured intelligibly, it does not follow that precipitating conduct should be penalized (in the way that conduct causing material or bodily harm ought to be). Indeed, as the American legal scholar, Andrew Koppelman (himself an advocate for SSM) has pointed out:*

“The dignitary harm of knowing that some of your fellow citizens condemn your way of life is not one from which a law can or should protect you in a regime of free speech”.

On the other hand, dissenting wedding vendors can also claim that they possess certain rights. Religiously conservative wedding vendors can assert that having to lend their creative talents to a same-sex wedding potentially violates their deeply-held convictions: engaging in activity that implicitly legitimizes a ceremony of which a person disapproves forces them to dis-integrate their views and their conduct. It is at least arguable that the religiously conservative cake-maker (for example) has the right not to participate in something he regards as immoral, in order to avoid complicity. We might recall what I said earlier about the Californian judge, who recently ruled that forcing a Christian baker to bake a wedding cake for a lesbian couple was a violation of her right to freedom of speech and expressive conduct. In addition, Bachelard’s argument ignores the possible harms such vendors may have to endure, regardless of the choice they make. Those who do not wish to participate in a same-sex wedding are, in many instances, confronted with the prospect of two unwelcome alternatives: violate their consciences and sacred convictions; or succumb to often hefty financial and pecuniary penalties.

Active and Passive Manifestations of Religion: A Fundamental Difference

There is one final difference between Bachelard’s chosen examples, and that of the dissenting wedding vendor. In many respects, it is fundamental to the entire debate. It centres on the direction of activity between the two parties, and the asymmetry between passive and active manifestations of one’s (in this case, religious) beliefs. I have hinted at this difference already, in referring to the kinds of violations of which a practitioner of FGM is guilty, but which appear to be absent in the case of a religiously conservative wedding vendor. However, I think it important to flesh this out a little more.

In the case, say, of an acolyte of the Jesus People abusing a minor within their spiritual community, we have a clear example of one individual acting upon another, thereby curtailing his right to liberty and freedom from degrading treatment. Indeed, I think most would agree that the act, by its very nature, violates the victim’s person, and, in most cases, harms them materially. The religious believer in this instance manifests his convictions in an active manner; he commits a certain act against another individual, which necessarily restricts or smothers their rights. In that sense, it’s a zero sum game: the active party imposes himself upon a vulnerable, unconsenting or unwilling recipient, which entails the simultaneous extension and restriction of one’s freedom of action. As I have already noted, it is for this reason that such behaviour, whatever its inspiration, is rightly considered unlawful — and indeed, criminal.

However, the religiously-inclined wedding vendor who refuses to lend his creative talents to a same-sex wedding is engaged in passive abstention. Here, the question of (religiously-motivated) imposition is irrelevant, for it simply does not exist. The vendor seeks to preserve coherence between inner conviction and outward activity, whilst avoiding duplicitous, hypocritical or morally inconsistent behaviour, and does so by refraining from participation in the event. In other words, he merely omits to do something. As the American columnist David Brooks (another advocate of SSM) has recently written, religiously conservative wedding operators who refuse to participate creatively in a same-sex wedding aren’t trying to restrict others’ (in this case, gay) rights; nor are they imposing themselves on other people. They are simply asking not “to be forced to take part” — i.e., they seek leave to abstain from contributing materially to something with which they disagree. Where someone who practices FGM assumes an active, dominant role in the relationship with the victim of such a procedure, a Jack Phillips or a Barronelle Stutzman is simply “withdrawing” from certain activity. This does not affect the hypothetical same-sex couple in the same way that sexual abuse, say, affects its victim: apart from the relative difficulties surrounding the notion of dignitary harm, the couple in this scenario is not restricted or coercively acted upon, as the passive parties in Bachelard’s initial examples most certainly are.

Indeed, whereas the individuals in Bachelard’s opening examples necessarily violate the integrity of another’s person, the same cannot be said of the hypothetical wedding vendor. In arguing for limits to expressions of religious belief, Bachelard presumes that anything less would lead to the unwelcome expansion of pernicious activity, under the guise of maintaining religious liberty (Bachelard even dismisses countervailing calls as “bogus”, clearly implying that those who advocate in this direction are cynically using religious freedom as a veneer to advance oppressive practices). This, of course, would explain why he has framed the debate with examples that most people are likely to see as clear and violent threats to civil liberties. But again, he overlooks key features of the active-passive distinction I have tried to highlight. Religious practices such as FGM and cultish sexual abuse are what we might term inherently “expansionist” — that is, they expand the range of the perpetrator’s activity at the expense of his victim. By contrast, the actions of conscientious objectors within the commercial wedding industry are “preservationist”: as Brooks’ earlier observation suggests, they seek merely to preserve what they believe could be undermined through participation in an event that contradicts their basic convictions. Limiting freedom of religion in the former instances goes without saying, given their active tendency towards the suppression of rights and the generation of suffering. The notion that similar restrictions should be applied to the latter is, at the very least, a contestable proposition.

Final Reflections

Bachelard’s argument is likely to appeal to those who already agree that withholding commercial wedding services to a same-sex couple is an egregious example of invidious discrimination. It’s also bound to appeal to many of the uncommitted, who aren’t likely to ask whether his contention has any merit, or whether it’s fair to group an unwilling baker (say) with child rapists and mutilators of the flesh. In that sense, Bachelard’s not unlike the targets of my last piece on this topic, since they also sought to draw connections between superficially similar acts. Intentional or not, his rhetoric has the effect of circumventing a person’s critical faculties: having first been confronted with examples of religiously-motivated violence, the unwary reader is lured into docile acceptance of the proposition that the sacred convictions of religiously-sensitive wedding operators should be met with the same kind of righteous fury. This is simply guilt-by-association, but without the label.

Lest there be any misunderstanding, I am not arguing that there should be no limits on alleged expressions of religious belief. What I have written here should make that clear. But I also think that there are principled reasons for allowing some religious freedoms whilst disallowing others. That, too, should be clear from what I have written. But the problem, as I see it, lies in the basic orientation of a piece like Bachelard’s. Underlying the words themselves is the fundamentally negative belief that religion is, and has been, a largely malignant influence on society. Whether one is referring to an imam who mutilates young girls or a dissenting wedding vendor, it is important that manifestations of religious or spiritual belief — especially those in the public arena — be kept on a taut leash. That leash, of course, is to be held by the secular state, which (to change the metaphor) must corral such expressions so that the baleful forces of superstition and religious bigotry do not corrode our modern, progressive way of life. If anyone objects to this project, their claims can safely be dismissed as a rear-guard action, aimed at  shoring up the last vestiges of religious privilege. Or so the assumption goes, anyway.

But it’s time to conclude. Despite his own certainty on this question — one might call it a kind of secular zeal — Bachelard’s claimed analogy breaks down at almost every relevant point. He is left with the mere shell of an argument, which not only fails to advance a good-faith dialogue, but positively frustrates it. Unfortunately, given the times in which we live, his offering is likely to fuel efforts that further restrict the right of religious conservatives to live in harmony with their deeply-held convictions.

*Please note that the article to which I have linked was not penned by Koppelman, but by the legal academic, Sherif Girgis, who quoted the same excerpt that I did. It appears the original piece is no longer available for viewing online (it was originally published in the Southern Californian Law Review).

 

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One Same-Sex Marriage, a Conscientious Objector, and Three Failed Arguments (Part One)

Introduction

They say that history is written by the victors. In the case of same-sex marriage legislation in Australia, it seems that the victors seek to write the future as well. Not content with the passage of SSM into law, advocates on both sides of the political aisle voted down a number of amendments that sought to protect the rights of dissenters from the new orthodoxy. For many of them, mere change of the marriage act was insufficient; complete public conformity now has to be enforced, underwritten by the imprimatur of the state. To be sure, some politicians who voted for Senator Dean Smith’s marriage bill unchanged claimed several substantive arguments in their defence. However, I cannot escape the feeling that for many parliamentary supporters of SSM, a desire for total victory was the primary driving force. That, and a sense of urgency induced by the approaching festive season, ensured that most of the proposed amendments received little more than cursory consideration.

As a consequence, only the most narrow of exemptions — touching directly on ministers of religion or religious institutions — remain in the bill. As for those who do not benefit from the protected sanctions of a recognized denomination, they may well find it difficult — perhaps exceedingly so — to preserve the integrity of their convictions in the face of demands to acquiesce. Photographers who decline to capture a same-sex wedding on film; a civil celebrant who does not wish to preside over a wedding ceremony centred around a same-sex couple; or a parent who does not want to expose her child to sex education that promotes a conception of marriage that contradicts her beliefs: in each case (and unless future amendments are accepted), the conscientious objector in question will have little recourse if they wish to retain the purity of their convictions. Since most opponents of SSM — or, to put it more positively, supporters of traditional marriage — are likely to oppose the change on religious grounds, any confrontation between the new regime and lingering dissent will raise burning questions concerning the legitimate scope of religious liberty in a secular society. If recent flashpoints in other countries are anything to go by, they’re likely to be rancorous affairs — deepening further the fissures that already exist between religious and secular, conservative and progressive.

Of course, for many advocates of SSM, both here and overseas, stringent limitations on a person’s ability to publicly express his or her (religious) convictions in this area is only just: true equality does not exist if even a few, lonely holdouts are permitted to maintain so-called “bigoted” attitudes beyond the citadels of their minds. This is certainly the case where commercial wedding vendors — specifically, those that directly contribute to the celebratory nature of a same-sex wedding — are concerned. Whether some Australian wedding operators may decline to provide services to same-sex nuptials remains to be seen; SSM was only legislated a month ago, and the first such ceremonies won’t be taking place until some time next month. However, the issue has been playing out in various locales across the United States, pitting religious conservatives against same-sex couples and their allies in state bureaucracies. As in so many things, US developments in this area could well be a harbinger of things to come here.

At any rate, whilst there may be a diversity of views on other questions, most SSM advocates (and even some opponents) are convinced that refusal to lend one’s creative talents to a same-sex wedding is manifestly unfair. For many of them, the alleged obviousness of their position means that it needs no discursive or articulated foundation. Still, some supportive politicians and commentators have tried to buttress it by proffering a series arguments that purport to demonstrate the illegitimacy of public opposition to SSM within the commercial space — particularly where it is inspired or driven by religious belief.

Three such approaches have recently caught my eye. All of them bear directly upon the issue of conflicting beliefs within the context of commercial transactions, and could be said to have implications for religious expression, conscience and intellectual liberty. Given the limits of space (which I have no doubt already pressed), I shall concentrate on only the first of the three arguments I have in mind. I’ve had reason to touch on these issues before, but recent events in the United States — where a dispute between Jack Phillips, a religious cake-shop owner, and a same-sex couple has made its way to the Supreme Court — mean that they still possess sharp currency. Despite claims that unwilling wedding vendors are likely to be a minor matter (and therefore of little significance), I incline to the view that if a political right is legitimate, it hardly matters how many people might be robbed of it by an overweening state. Furthermore, I think it important to answer advocates who would seek to ensure universal submission to the reality  of SSM, and to expose the shallowness of their arguments. A Sisyphean task, perhaps, but necessary nonetheless.

Race and Same-Sex Marriage: a False Analogy

Here, I want to examine a depressingly common justification for refusing to allow a dissenting wedding vendor to refrain from contributing materially and artistically to a same-sex wedding ceremony. I say “depressingly”, because the argument’s ubiquity is matched only by adherents’ rather thoughtless devotion to it. Some proponents of SSM have asserted that a wedding vendor who declines to provide his or her services to a same-sex ceremony is akin to commercial operators of a previous era placing signs in their front windows signalling their refusal to serve people of a certain “race”. If this sounds like an exaggeration — a caricature of an opponent’s point of view — then here is the ALP’s Penny Wong, staking out her position in response to the tabling of Liberal Senator James Paterson’s rival SSM bill:

“I thought we had gone past the point in this country where we had signs that said ‘We don’t serve Jews, we don’t serve blacks'”.

Senator Wong is hardly alone in thinking this way. During parliamentary debate on SSM and related amendments, Wong’s colleague, Linda Burney, asserted an equivalence between wedding vendors who decline to service a same-sex wedding, and racist business operators. And what about The Australian’s Peter Van Onselen, who lazily conflates the two actions? Their views simply reflect a great swathe of public opinion.

Unfortunately, the argument itself is deeply — indeed, corrosively — fallacious. To be sure, there are some superficial similarities between the examples cited by those above: in both activities, a kind of discrimination is taking place. But it should also be noted that not all such forms should automatically be construed as unfair or illegitimate. Discrimination takes place all the time in a myriad of settings, and it is even seen as virtuous in certain contexts. For example,  we do not fault an employer when he “discriminates” between the relative abilities of two candidates vying for a position at his firm. Quite the opposite: he is doing what is required of someone looking to enhance the profit-making capacity of his business. As such, there are times when a discriminatory outlook is not only warranted, but encouraged.

Wong, Burney, Van Onselen and their ilk are operating with a deeply confused understanding of what counts as unjust discrimination, illegitimately eliding real, invidious instances of discrimination with those that are only apparent. Refusing to serve someone based on their “race”, and declining to lend one’s creative talents to a same-sex wedding, are dis-analogous in a number of crucial respects.  At base, it is the difference between prejudicial treatment grounded in a person’s innate features or characteristics, and distinctions made based on a desire to avoid complicity in an event, ceremony or process with which one disagrees. As Senator Paterson — who is himself a supporter of SSM — has pithily said, “It’s not about the person, it’s about the event”.

It’s worth exploring these differences in a little more depth. On the one hand, commercial discrimination against someone based on race or ethnicity is rightly viewed as unfair, because it is grounded in (a) innate characteristics of an individual (as opposed to an event distinguishable from said individual); and (b) consequent considerations that are irrelevant to the transaction in question. The provision of housing cannot be withheld from, say, Indigenous folk, because no rational relationship obtains between (in this case) Aboriginality and accommodation, and no rational distinction exists between an Indigenous man and a white person. Such actions attack the person qua person, and serve simply to undermine their position as an equal member of society. Some academics have theorised that this is part of a wider system of racial domination, by which the dominant group seeks to reinforce the inferior status of the subordinate group. As a manifestation of that system, refusal to accommodate certain individuals on the basis of race targets certain intrinsic features which — once more — have no material connection to the goods and services they wish to access. That is why they are (justly) seen as bigoted or prejudicial.

On the other hand, there is a rational relationship between a wedding ceremony (in this case, a same-sex wedding ceremony) and the provision of wedding-related services. To provide such services just is to make a contribution to a same-sex couple’s nuptials. Here, the question of the shape and nature of the marriage in question becomes supremely relevant, at least for those who hold to a traditionalist view of marriage. This does not centre on a person’s sexual orientation (in the way that a bigoted hotelier’s refusal to serve African-Americans is intrinsically about one’s racial identity). Rather, and as Senator Paterson noted, the source of the vendor’s objection is the possible contribution to, and participation in, a particular event. Those wedding vendors who object to lending their services to a same-sex wedding do so, not because they refuse to serve LGBT people, nor because they wish to communicate a message of dominance to a supposedly subordinate group, but because they do not wish to participate in a ceremony that contravenes their conception of marriage.

Religiously conservative business owners who have  declined to render their services to a same-sex wedding have made this very point when hauled before state judiciaries. The separate experiences Baronelle Stuztman, a florist, and Jack Phillips (noted above) are instructive. Having been subject to legal sanction for their dissenting behaviour, both Ms Stutzman and Mr Phillips have stated clearly their willingness to serve gay couples for a variety of occasions. In fact, Ms Stutzman was sued by a gay couple she had willingly and cheerfully served for approximately a decade before running afoul of Washington State’s anti-discrimination statutes. However, she and Mr Phillips draw the line at making a material, artistic contribution to a same-sex wedding. In doing so, they are holding precisely to the distinction between persons and events that I have outlined. I’ve already written about Ms Stutzman, but it’s worth recalling the following words, since they can be applied to the issue more broadly (the brief excerpt within the quote comes from Ryan T. Anderson’s Public Discourse piece on this topic):

“In the case of Ms. Stutzman, her decision ‘did not spring from any convictions about people who identify as LGBT’, and had nothing to do with making distinctions based on a person’s sexual orientation; rather, it was rooted in what she believes to be the true shape of marriage”.

What proponents of the countervailing argument fail to realize is that there is actually a logical distinction between the sexual orientation of a person, and one’s definition of the institution of marriage. One may, for example, hold to a neutral — even positive — position on same-sex erotic relationships, even as they remain convinced that marriage is fundamentally a dyadic union of sexual complements. A quick thought experiment might help to make this distinction clearer. Imagine, if you will, a same-sex marriage composed of, say, two heterosexual women. Unlikely? Yes, but it is entirely conceivable.* Conversely, one may also imagine an opposite-sex marriage, composed of a gay man and a lesbian woman. It is therefore possible to separate the shape and nature of the event from the sexual identities of the participants involved. Assuming a religiously conservative cake-maker (for example) is consistent in his or her convictions, he or she will oppose the first union, but happily participate in the second. What these hypothetical examples do is dramatize the crucial difference between orientation (a feature of the person) and the structure of a marital relationship (an institution external to that person). That is why Ms Stutzman and Mr Phillips could, without a whit of inconsistency, serve LGBT people in a variety of contexts, and yet refuse to lend their artistic talents to a same-sex wedding.

By contrast, there is simply no parallel in the case of a business operator refusing to serve a customer because of the colour of their skin. Unlike the person-event distinction that obtains in the case of a same-sex couple wanting to marry, it is impossible to imagine a black person without reference to his or her ethnicity. Discrimination concerning race is inescapably grounded in certain, innate features of an individual; racially supremacist behaviour cannot be divorced from the prejudicial beliefs which underpin it, and is reducible those attitudes in a way that opposition to SSM (at least in some forms) isn’t. A distinction between neutral or positive regard and differential treatment — similar to the possibility that exists between one’s attitude towards homosexual relationships and a wedding vendor’s refusal to contribute to a same-sex wedding — is impossible where race is involved. A local publican’s turning away, say, an Indigenous man from his pub is simply the product of racial animus. The one is an expression of the other, such that in the absence of a personal attitude or belief concerning racial differences, a public display of racially-tinged discrimination would not — perhaps could not — exist.

Concluding Thoughts

The distinctions I have tried to highlight here are subtle, to be sure. But they are no less significant for all that. Sometimes, a fine-grained analysis is necessary, if only to expose the hollowness of an argument masquerading as self-evident truth. I remain convinced that this must be prosecuted, in order to make the case that it’s still possible for reasonable people to disagree. Of course, I fear that however strong my position is (and some may think it very weak indeed), it is likely to fall on a multitude of deaf ears — ears which belong to people who are already convinced that a Baronelle Stutzman and a proud segregationist dwell on the same moral plane. Indeed, the ease with which some progressives conflate the two leaves me doubtful about the prospects of détente or rapprochement on this issue.

As commentators like Rod Dreher and Ross Douthat have observed, if the analogy examined here continues to gain acceptance, then dissenting photographers, bakers, etc. will likely suffer the same kind of ostracism that Jim Crow advocates (quite rightly) experience in the US. It will mean that those who dare to object to the new orthodoxy will likely see their views de-legitimised before they have been given a fair hearing. After all, would we be willing to sympathetically enter into the emotional and intellectual world of a person who thinks that African-Americans are inferior to whites, and that their economic and social subjection is simply part of the natural order of things? Would we be willing to sincerely consider their point of view with any degree of openness?

This phenomenon goes well beyond commercial wedding vendors. As Douthat notes, positions on SSM that were taken by left-leaning politicians just a few years ago are now condemned as the “purest atavism”. The experiences of unwilling wedding operators may therefore prove to be a barometer of things to come, both here and overseas: the alleged parallels I’ve examined are now frequently deployed at a more general level to tar all opponents of SSM, regardless of whether they are in a position to refuse participation in a same-sex wedding.** If the analogy between race and SSM does hold (socially, if not logically), then there’s no real reason to restrict its application to those operating in the commercial wedding sector. Needless to say, none of this bodes well for the future of religious and intellectual liberty.

* Legally speaking, I mean. This is not to say that a same-sex marriage is metaphysically possible.

** As an aside, I remember speaking with a colleague just after Ireland voted to legalize SSM in 2015. I distinctly recall him saying that in time, opposition to SSM (broadly conceived) will be viewed in the same way we now see racist beliefs. He himself is a supporter of SSM, and he didn’t sound overly concerned by such a possibility. In fact, he seemed to think that it represented the natural extension of our culture’s current journey of progress. I doubt very much that the opinion was either original or unique to him.

The Liberal Party, Same-Sex Marriage and Freedom of Conscience: A Case of False Promises?

In recent months, certain proponents of same-sex marriage (hereafter, SSM) within the Liberal party have argued that people who support so-called “traditional marriage” ought to vote “Yes”, for the simple reason that freedom of conscience and religion will be better protected if the relevant changes are implemented under the auspices of a Coalition government. The argument is composed of three main prongs, or assumptions: first, SSM is inevitable in Australia, regardless of the outcome of the current postal plebiscite; second, as the party of small government and individual freedom, the Coalition is best-placed to secure the rights of conscientious objectors under the new regime; and third, if the present push for SSM fails, the country runs the risk of giving the ALP – which is less sympathetic to intellectual (including religious) liberty – the task of presiding over future alterations to the marriage act.

One might call this the “Argument from Inevitable Change” or the “Argument from Salvaging Individual Rights”. Whatever label one wishes to use, I don’t accept it on its face – largely because it means evacuating one’s position of all principle. I’m inclined to agree with the view of Quadrant editor, Keith Windschuttle, who has said the argument is a “political tactic”, intended to “deflate” opponents of SSM rather than engage them in debate. However, even if I thought there was some tactical merit in voting for change – based on the belief that doing so now would guarantee some measure of religious and intellectual protection – there are pressing questions over the validity of the argument’s basic components. Its first and third limbs are relatively sound: SSM has the air of inevitability about it (though, of course, it’s not a fait accompli); and the ALP cannot be trusted when it comes to securing the rights of conscientious dissenters. But it’s the claim’s second limb – namely, that the Coalition will protect the liberties of individuals and groups opposed to SSM – with which I take issue.

This brings me to reports regarding Liberal Senator Dean Smith’s private member’s bill to legalise SSM. His comments about the bill have raised serious doubts in my mind over the Coalition’s ability to guarantee the aforementioned rights, particularly as they pertain to religious freedom. Smith was quoted recently in The Australian saying that whilst his bill provided safeguards to religious institutions, ministers, and the like, it did not extend those protections to business owners who provide wedding-related services, unless they could “prove a link to a religious body” (“Same-sex safeguards not for all businesses,” September 18th, 2017; article paywalled). He said that if a bakery, for example, failed to substantiate a formal connection to a church (or mosque, synagogue, etc.), it would not be afforded legal defence if it refused to bake a cake for a same-sex wedding. Smith argued that because people cannot presently discriminate against gays and lesbians, they should not be able to refuse services to a same-sex couple wanting to get married. In his mind, this would represent a regression in current anti-discrimination law.

Should conscientious objectors take moral issue with rendering services to a same-sex couple for their wedding, they are likely to be left completely exposed under such proposals. I recognize that there are important legal questions related to whether providing, say, floral arrangements at a same-sex wedding ceremony constitutes endorsement of that union, just as there are debates regarding the provision of such services, and whether this violates the vendor’s moral and/or religious convictions if they happen to oppose SSM. But the religious exemption clauses in Smith’s bill do not assuage my concerns at all. Woefully inadequate, they are built upon logical inconsistencies and false assumptions – trading, it seems, on very narrow conceptions of both religious expression and legitimate grounds for dissent. I think it’s worth examining these intellectual infelicities in a little more detail.

Religious Bodies and Believers: An Illegitimate Distinction

To begin, there is the question of consistency within the proposed exemptions, particularly as they apply to people whose objections to SSM stem from religious convictions. Smith’s bill artificially divides formal ecclesiastical bodies (as well as ministers in their employ) and the wider pool of religious adherents who compose them. Such bodies are far more than the institutional frameworks distinguishing them from other organised groups. Similarly, the ongoing life and reality of religious institutions exceeds the work of ministers, pastors, imams and the like. Rather, they are sustained by the activities of individual believers, as they gather for worship, serve each other in a variety of ways, and generally manifest the communal dimensions of their respective faith traditions. Religious institutions are, in other words, social realities, embedded in a complex set of networks in which “professional” clergy and laypeople both participate. In the case of Christian churches, ministers exist for the sake of their congregations – conveying religious truth, which is then embodied and enacted in the lives of congregants (whether individually or corporately). The doctrinal positions which define or constrain a minister’s behaviour – which in this case entails beliefs about the nature of marriage – will normally perform the same functions over the lives of those he serves, wherever they happen to find themselves.

Additionally, Christian accounts of religious life emphasize the inherently unitary nature of the church, such that religious officeholders and members form one coherent organism. One is an “in-grafted” member of this organism by virtue of being a professed and genuine Christian, regardless of where he or she happens to be. In many ways, there is no substantive distinction, on either theological or sociological grounds, between religious bodies or ministers on the one hand, and the laity on the other. The religious provisions of Senator Smith’s bill rest upon an unwarranted abstraction, failing to recognize the inherent inseparability of religious institutions and their adherents. To refer to the former apart from the latter – as the bill effectively does – is to trade in illusory deconstruction. The bill’s exemptions divest formal ecclesial bodies of the very believers who help maintain their distinctive shape and identities, even as they remove said believers (at least conceptually) from the communal context that sustains and grounds their beliefs. That’s why Rev Dr Joseph Parkinson, director of the L.J. Goody Bioethics Centre in Perth (attached to that city’s Catholic archdiocese) was correct when he recently wrote to the editor of The Australian that “it is inconsistent and illogical to create exemption for ministers” if they are not extended to “individual religious adherents” – for the very reason that “in respect of beliefs about…marriage, there is no distinction” between the one and the other.

Narrowing Religion

But if Senator Smith has illegitimately tried to parse religious bodies and believers, he is also guilty of holding to a reductive account of religion. A reading of the relevant exemptions suggests that it is only the work of official clergy, operating within an explicitly or institutionally religious setting, which warrants protection; religious adherents who try to conform to the teachings of their faith tradition in their daily lives – including, in the case of religious conservatives, adherence to teachings concerning traditional marriage – are not afforded the same courtesy. But that the bill exclusively concentrates on the activity of formal religious bodies and accredited ministers suggests that Senator Smith is thinking of spiritual expression in extremely narrow terms. It is, in other words, far too restricted an understanding of what religion is, and the role it plays in – and over – a person’s life.

To be sure, practices within formal houses of worship (singing, prayers, chants, readings from sacred texts, recitation of creeds, rituals, etc.) constitute important manifestations of religious devotion. This cannot be denied. But just as religious bodies are not exhausted by either their institutional architecture or their official representatives, so religion in general is not completely captured by what happens in formal services (however articulated). For many believers, religiosity is something that colours and shapes every dimension of life – not only within, but beyond, the church, mosque or synagogue. Any serious religious individual will seek to implement, where possible, the teachings of her religion in whatever station or environment, including the workplace. This is only natural: an authentically religious view of life would seem to entail a fully integrated existence, rejecting of crude, post-Enlightenment divisions between the secular and the sacred. Trying to compartmentalize something as all-embracing as religion is simply impractical, for it is commonly embedded in the deepest strata of a person’s thinking. Moreover, for those who swim in the Protestant stream of Christianity, work – even “secular” work – is often viewed as a divine calling, offering the believer the opportunity to worship God through her labour. Obviously, this attitude must be carefully balanced with the right of others to pursue their goals unmolested. But if religion is a whole-of-life concern, then it normally entails the adoption of a comprehensive approach to the teachings and ethos of one’s particular faith tradition.

Senator Smith’s bill recognizes none of this. It relies instead upon the forced demarcation I noted earlier – owing so much to Enlightenment thought – between spiritual and secular affairs. That seems to be implicit in the proposal to grant formal religious bodies and employees legal protections if they do not wish to solemnise a same-sex wedding, but not, say, a Christian florist who declines to provide services for such a ceremony. It wrongly assumes that the influence of one’s religious beliefs can simply cease at the door of one’s house of worship, safely corralled by the dictates of a secular society. But to repeat myself: religion does not actually work in this fashion. Offering an interpretive framework within which to make sense of the various elements of one’s existence, it has the potential to indelibly influence every dimension of life. Religion is far more than a series of atomised opinions about a transcendent realm, severed from the everyday concerns of the individual adherent. It cannot be reduced to a clutch of discrete acts, performed in well-defined settings, that can be described as overtly “spiritual” (e.g., worship in a church setting). The proposed bill leaves the public with a “thin” – nay, eviscerated – conception of religiosity, failing to capture the broadness of the phenomenon as it actually occurs outside the pages of proposed legislation.

What Counts as (Unfair) Discrimination Anyway?

I must confess that clearly interpreting Smith’s reasons for limiting the bill’s anti-discrimination exemptions isn’t easy. One might argue that the proposed parameters are intended to prevent some vendors from cloaking anti-gay animus in the garb of recognized religious systems, thereby saving gay couples from reputational and psychological damage. By limiting the right to conscientiously decline participation in a same-sex wedding to ministers of religion, invidious discrimination against homosexuals by supposedly bigoted commercial operators can largely be erased; if that means capturing other business owners who, because of genuine religious or moral objections, cannot contribute to the production of a same-sex wedding (so the argument might go), so be it.

But I wonder whether a more disturbing interpretation of the bill’s exemption clauses might not be more accurate. On this view, any refusal to provide wedding services to a same-sex couple constitutes unfair discrimination, regardless of motive or sincerity. This would make sense of the absolutism in Senator Smith’s remarks concerning commercial businesses and current anti-discrimination law, where he offered a fairly unnuanced position on what counts as discrimination. Indeed, that he grounded the narrowness of proposed exemptions in the fact that people cannot presently discriminate on the basis of sexual orientation implies some kind of equivalence: refusing service because a person is gay and refusing service because one does not want to implicitly endorse a same-sex wedding amount to the same thing. Such an interpretation would also cohere with what appears to be Smith’s restricted view of legitimate religious expression and discrimination. Finally, and as we’ll soon see, it would conform to established judicial and legislative practice overseas, which seems to regard conscientious objection to SSM on the part of commercial operators as a form of invidious discrimination.

Let’s assume this latter reading is correct. If so, there are a couple of problems with the way Senator Smith has cast a commercial operator’s possible moral-religious objections to SSM. First, it would seem to rely on Smith’s impossibly narrow conception of religious expression – which, as we have already seen, hardly reflects religiosity as it is instantiated in the experiences of ordinary people. Second, equating such objections – and the consequent refusal to offer one’s commercial services – with homophobic prejudice is simply fallacious. It is false to think that a vendor’s decision to withhold their products and skills from a same-sex wedding is merely a subset of anti-gay discrimination. Contrary to what some SSM activists believe, it is logically possible to hold traditional views around marriage whilst also being completely free of animus towards gays and lesbians. Indeed, a positive view of same-sex relationships is logically consistent with the conviction that marriage is, by definition, a dyadic union of sexual complements. In my view, these positions can be clearly distinguished. But Senator Smith fails to recognize this, conflating opposition to SSM – perhaps expressed by a refusal to render services to a same-sex wedding – with a more general refusal to serve customers based on their sexuality.

The case of Barronelle Stutzman, a florist in the United States, is instructive in this regard. For many years, Ms. Stutzman served Robert Ingersoll and Curt Freed, a gay couple. She knew they were in a homosexual relationship, whilst they knew she was a conservative Christian. Ms. Stutzman had no qualms serving the couple, and supplied them with floral arrangements for a variety of personal and celebratory occasions. But when they asked her to supply flowers for their wedding, she politely declined. Ms. Stutzman grounded her refusal in her belief that marriage is defined by the union of one man and one woman. The couple sued her, as did the state of Washington. In its final judgment, the Supreme Court of Washington stated that Ms. Stutzman’s decision amounted to unfair discrimination on the basis of sexual orientation. But as Ryan Anderson, writing for The Public Discourse, has said, the court’s ruling (and, by extension, Senator Smith’s bill), illegitimately elides real and imagined discrimination. Anderson asks us to consider a florist who refuses to serve customers who identify as LGBT simply because of that identification. He contends, “that would be a case of invidious discrimination because the mere knowledge that they identify as LGBT should have no impact whatsoever on the act of the florist selling flowers, because there is no rational connection between the two”. But, Anderson continues, in the case of Ms. Stutzman, her decision “did not spring from any convictions about people who identify as LGBT”, and had nothing to do with making distinctions based on a person’s sexual orientation; rather, it was rooted in what she believes to be the true shape of marriage. If Senator Smith, like Washington State’s Supreme Court, thinks that commercial operators who are uncomfortable offering their services to a same-sex wedding are guilty of making unfair distinctions as a result of one’s sexuality, then he has simply recapitulated those earlier conceptual errors: not only are we brought back to the original blunder concerning the scope of acceptable religious expression; it would appear that on this view, refusal to lend one’s creative talents to a same-sex wedding is per se an instance of unjustified discrimination.

Needless to say, these errors have practical consequences. They leave ordinary people – people like Ms. Stutzman – vulnerable to grievous violations of conscience or ruinous legal and pecuniary costs. Harnessing the state’s power to curtail a person’s ability to live in accordance with deeply-held beliefs corrodes our society’s commitment to liberty of conscience. Trying to coerce conformity on a particular question is neither practical nor ethical in a profoundly pluralistic society; indeed, opinions on this question – as on so many questions – are radically incommensurate, such that to compel a person’s participation in something they regard as spurious isn’t simply to inconvenience them, but to force them to betray their own, deeply-rooted convictions. Against this, one might invoke the harm principle: excluding swathes of people from anti-discrimination exemptions saves same-sex couples from psychological injury caused by a denial of service. But where does the real harm lie? With the hypothetical same-sex couple, which may be forced, say, to look for another vendor to organise the floral arrangements for their nuptials? Or with the dissenting florist, who is confronted with the unenviable choice of either violating her conscience, or leaving herself open to hefty legal and financial penalties?

Conscience Protections for the Non-Religious: A Forgotten Constituency?

Up to this point, I have only spoken of the flaws contained in Senator Smith’s bill as they relate to religious sources of opposition to SSM. But what about people – wedding services providers, celebrants, and the like – who may hold non-religious objections? Admittedly their numbers are likely to be miniscule. Still, the importance of individual rights isn’t determined by the number of people who are likely to hold them. There may well be some business owners, providing a variety of wedding services, whose secular belief system does not permit them to validate the reality or morality of SSMs. Even if a vendor’s religious concerns were to be recognized, and exemptions were extended to them, this would still leave non-religious conscientious objectors exposed to legal action. On a conceptual level, the bill commits itself to what I regard as a falsely restricted view of opposition to SSM. It tacitly assumes that only those whose disquiet is grounded in religion could credibly refuse to participate in a same-sex wedding (and then, only in the context of one’s institutional affiliation with a recognized denomination). Smith’s proposed bill says nothing about opposition to SSM that isn’t grounded in religious belief. Does this not represent the presumption that such an attitude can only ever stem from a religious worldview? Certainly, it’s possible to base one’s commitment to so-called “conjugal” marriage upon a deference to traditional mores and norms, or the belief that children ideally ought, where possible, to be raised and socialized by their biological parents. Moreover, academics, like the legal scholar Robert P. George, have sought to root their conviction that marriage is a union characterized by sexual complementarity in a specific metaphysic – one that does not, in the final analysis, rely upon religious tradition, belief in God, or revelatory claims. Whether such arguments are successful in persuading others is beside the point; the fact that they exist suggests that it is possible to hold to a view of traditional marriage apart from religious belief. Yet the proposed bill apparently makes no references to this reality, allowing for only the most narrow expressions of intellectual liberty. I recognize that wedding vendors, regardless of the source of their beliefs, are not afforded legal protection; neither a religious florist nor a secular baker – both of whom oppose SSM – can expect to find solace in anti-discrimination exemptions. Still, I worry that secular business owners who may oppose SSM are being ignored, and left out in the cold: unable to practice freedom of conscience, for fear of legal sanction; and bereft of the sustaining networks that flow from religious affiliation or identification.

Conclusion

Claiming that the Liberal Party is the primary political guarantor of individual freedoms is to state only the most trivial of truths. The foregoing examination has, I think, made that clear. Yes, it’s probably the case that they are to be (marginally) preferred to the ALP. Yes, they nod in the direction of freedom of religious expression. But if Senator Smith’s bill is anything to go by, then the Coalition is prepared to offer only minimalistic concessions to those in the wedding industry who decline to support SSM. Smith’s proposals are riddled with false conceptions, fallacious elisions and a variety of inconsistencies, giving the lie to his contention that this strikes a fair balance between religious expression and freedom from discrimination. The bill itself fails to properly capture the meaning and scope of religion for so many people, whilst saying nothing at all about other (non-religious) forms of opposition to SSM. All told, it makes too large a concession to the idea of “unjust” discrimination, resulting in many of the flaws I have noted. Coalition promises in this regard need to be taken with a sizeable pinch of salt. On so many issues (think the debate around 18C of the RDA, for example), they have shown themselves to be lacking in moral and intellectual fiber. This isn’t to say that the Liberals don’t have men and women of integrity working for it. I think of people like Andrew Hastie, Tim Wilson and James Paterson, who all evince a robust and sincere commitment – not mere rhetorical badge-making – to our society’s fundamental freedoms. But the party as a whole seems to have drifted away from its ideological moorings, whether through fear or a simple lack of intellectual sustenance. Moreover, the wholesale evacuation of Christianity from modern Australian culture – and with it, the attendant rise in religious illiteracy – means that concerns regarding encroachments upon freedom of religion are more likely to be met with a bemused impatience. Present claims notwithstanding, not even the Liberal Party is immune to such developments. I’m skeptical, then, of the notion that voting strategically for change will help proponents of traditional marriage salvage anything more than a narrow, restricted – and largely token – band of rights.

Postcards from the Marriage Wars – Part Three

The last time I examined the issue of same-sex marriage, it was by way of a response to the (predictable) views of a Fairfax journalist. However, it is one thing to hear from commentators on this issue; quite another to listen to those directly embroiled in the matter. Perhaps they have a unique insight that mere pundits lack. Roger Munson, a Uniting Church minister who conducted a wedding ceremony between two men during the ACT’s brief interregnum on SSM, is one such individual. Here he is in his own words, explaining his reasons for supporting such a momentous shift:

“Jesus never said anything against people who are homosexual…Jesus always welcomed people, had compassion and never judged people…These people should be allowed to marry because they want to express their love for each other through a public right as anyone else does.”

Leave aside the fact that Jesus’ personal opinion of homosexual individuals hardly settles the public policy debate regarding the nature of marriage; Mr Munson’s views are nevertheless likely to appeal to those of a more liberal persuasion (by the by, it’s interesting that one Christian can be feted for holding views that the Left has already embraced, whilst another Christian can be howled down and accused of illegitimately trying to inject religion into a public debate if he so much as breathes a conservative sentiment). I have already talked about the possible pitfalls of trying to ground marriage in the subjective and transient (if intense) emotions that exist between two people, so I won’t cover old ground. Suffice it to say, it seems that Mr Munson assumes precisely this: people who wish to marry should be able to “…because they want to express their love for each other.” Note the consequential word, “because”: marriage should in effect be afforded to those who declare their love for each other, based precisely on this quality. According to Mr Munson (if his stated view is any indication), the only thing required for a marriage to be codified is the presence of such feelings. On its face, this view is compelling, generous, open and seductive. It reflects the mores and norms of a permissive, liberal age, and is likely to be celebrated with increasing enthusiasm. There’s just one, small problem: it’s wrong. And it’s wrong on several counts, not least of which is Mr Munson’s analysis and application of Jesus’ alleged views. It is upon this particular dimension of Mr Munson’s argument that I wish to focus.

Now, Mr Munson is absolutely correct that Jesus never said anything explicitly about homosexuality – or at least it’s true that the evangelists never mention Jesus saying anything about it. We simply have no record of Jesus’ utterances on the matter. But that’s the first problem; suggesting that Jesus never said anything about homosexuality as a way of legitimising SSM is an argument from silence. Arguments from silence, I should point out, are notoriously feeble. Because the gospels – the only records we have of Jesus’ putative teachings – are so brief, we simply have no way of knowing whether Jesus did have anything to say about the matter. So basing one’s support for homosexual relationships upon the apparent silence of the founder of Christianity is fraught with difficulty. The most we could say is that if Jesus said anything bearing upon homosexuality specifically, the evangelists – for reasons known only to themselves – decided to omit it from their writings. Moreover, I am sure many people can think of other instances of (purported) moral impropriety – behaviour that might well attract near-universal criticism – about which Jesus was absolutely silent. A few examples come to mind; whilst attracting widespread opprobrium today, they are things on which we have no (expressed) opinion from Jesus. Ought we tale his silence on those matters as synonymous with approval? My point is that arguments from silence trade in ignorance – in this case, ignorance about what Jesus actually thought when it came to the question of homosexual acts.

But Mr Munson’s citation of Jesus’ (apparent) silence regarding homosexuality runs into another difficulty – namely, that it seems to reflect a fairly simplistic view of theological ethics. Let me explain. To ground (at least in part) the legitimacy of an act in Jesus’ silence on a particular matter is to give credence to the idea that ethical truths – in this case, prohibitions – are to be found only in explicit commands. But this is false, both in terms of ethics generally, and biblical ethics specifically. Surely Mr Munson knows that, when it comes to a biblically-informed ethical worldview, narrative substructure and underlying perspective are just as important as any explicit endorsement or proscription. This is germane, for once one introduces Scripture’s underlying narrative or ethical worldview, things take on a decidedly different complexion (as we shall see). Ironically, Mr Munson’s view seems to represent the worst kind of “reverse” proof-texting – the obverse of the sort of superficial ethical reasoning for which fundamentalist Christians are regularly (and often rightly) castigated. But of course, when such thinking is pressed into service to shore up presently accepted norms and mores, people are willing to overlook its demonstrable woolly-headedness.

* * *

These are just preliminary remarks, of course. But they point to intrinsic weaknesses in Mr Munson’s position. Moreover, and contrary to what Mr Munson seems to think, I believe that it’s possible to suggest – at least with some justification – what Jesus might have thought about the vexed question of homosexuality. I cannot argue that this case is “air-tight”, for the argument from silence can be a double-edged sword: that Jesus didn’t say anything about homosexuality means that we cannot be certain – at least from the biblical evidence before us – that he condemned it outright. Still, by examining what Jesus did say about sexuality generally, as well as clear-headed reflection upon the religious-ethical matrix within which he and his primary interlocutors operated, I think we can reasonably suggest that Jesus held to what would now be seen as a “conservative” position on matters sexual.

To begin, Jesus’ comments on sexuality do reveal his views fairly clearly – and, by implication, his views on homosexuality. Take, for example, his debate with a contingent of Pharisees on the question of divorce in Matthew 19. His opponents come to him in order to test his devotion to the Law of Moses (v.3). There are interesting contextual roots to this discussion, pertaining to the differing interpretations of the relevant OT material. Two schools of thought, congregating around the rabbis Hillel and Shammai, debated the meaning and scope of passages such as Deuteronomy 24:1. The former was more liberal in his interpretation of the verse, particularly its references to “displeasing” and “indecent”, whilst the latter adopted a more restricted understanding of legitimate grounds for divorce.

Jesus’ reply to his interlocutors, however, seems to bypass this internecine debate entirely. Indeed, he seems to point to the central meaning of the marriage covenant. Over and against this kind of rabbinic minutia, Jesus holds fast to the underlying ideal of marriage, as outlined in Genesis 1:27 and 2:24, by stating in vv.4-6 that marriage was always meant to be the lifelong, one-flesh union between a man and a woman. If one were to say that Jesus didn’t explicitly rule out other kinds of couplings, it would appear that, implicitly at least, he did. Note verse 4, where Jesus quotes specifically from Gen 1:27 – humanity was created male and female. NT scholar Craig Blomberg, in commenting on this passage, has said that the Genesis text set the paradigm, by which “heterosexual, monogamous marriage” was established “as the most intimate of interpersonal relationships and as the only relationship in which sexual union was appropriate” (emphasis mine). The creational ideal, it would seem, meant the distinction between male and female – or sexual complementarity, if one wants to use contemporary language – as the underlying basis for the one-flesh union. The Genesis texts, which the Matthean Jesus took to be foundational and authoritative, offer us a picture of marriage marked by two, intrinsic features: sexual distinction; and fleshy union (i.e., sexual intercourse). It encompasses these complimentary dimensions as structural elements of its own reality. To say, then, that this is the ideal (as Jesus seems to have done), is to implicitly screen out other sexual combinations and permutations, whether they occur within, or beyond, the constraints of some kind of formalised commitment. This includes SSM; however much Mr Munson might like to believe that Jesus would have no problem with two men or two women marrying each other (assuming that such an event is ontologically possible in the first place), it seems that the data contained in the gospels present a rather different picture.

Mr Munson, and those who have trod this path before, might want to argue that even if Jesus presented marriage in these terms as the divine ideal, his silence on homosexuality specifically might reflect a lack of interest in the subject. But this represents a failure to take into account the context within which Jesus and his opponents operated, and the influence it likely had on the shape and complexion of the debates that took place. Let’s take Jesus first. His reliance upon the OT’s premier text as a way of cutting through the debate over divorce suggests that, whatever else might be said, he saw the Hebrew Scriptures as authoritative. Indeed, Jesus’ reliance upon the Genesis texts to make his case functions as a window through which we may glimpse his embrace of the OT’s normativity – particularly as it pertains, in this case, to sexual relations. Take Matt 5:17-20, for example, where Jesus spoke of his relationship to the Hebrew Scriptures, and the implications his coming had for its authority. Certainly, the advent of Christ meant (to some extent) the radical redefinition of the Torah and its place in the life of the people of God. But his words in this passage do not indicate that it was thereby abolished. Quite the contrary, in fact. Jesus declared the ongoing legitimacy of the “Law and the Prophets”, even as he fulfilled them. And this would have included everything pertaining to sexuality generally, and homosexuality in particular. Far from abolishing the law, or diluting its force, Jesus actually intensified it.

As noted, there are debates over what place the OT plays in the life of the church today, and how it is to be applied. Furthermore, Christological fulfilment meant, in some case, the rescinding of certain laws (think food laws). But it cannot be said that Jesus dismissed the authority of the OT as a result of his ministry, or implied that its ethical strictures – including those related to sexual relations – were thereby null and void. The Sermon on the Mount clearly illustrates the point; there, in talking about matters such as murder and adultery, Jesus deepened the righteous requirements to which disciples were beholden (Matt 5:21-30). He certainly contrasted his teachings with those found in the OT. However, he did not present a new, liberalised application of Torah, but rather something that went beyond the outward acts proscribed by the Hebrew Scriptures. The point is that on the evidence, it seems unlikely that Jesus would have held anything less than an orthodox understanding of the authority and interpretation of the OT. This has important implications for his views on sexuality. Even though the evangelists did not record anything Jesus might have said about homosexuality, his general attitude towards the OT suggests that he would not have endorsed it.

As a good Jew, Jesus would not have been unusual in this understanding; many, if not most, of his co-religionists and ethnic kin believed the same. This brings me to the other side of the historical-contextual coin: the beliefs and attitudes of Jesus’ interlocutors (whether hostile or otherwise) towards sexuality and sexual relationships. Far from being a strange omission, Jesus’ apparent silence on the matter of homosexuality is easily comprehensible – perhaps doubly so, when one takes into account his own (likely) attitudes – in light of the social, religious and cultural matrix within which the bulk of his ministry occurred. The main recipients of his mission, it would seem, were fellow Jews. To be sure, Jesus made occasional forays into Gentile territory, and spoke with non-Jews. Moreover, his ministry seemed to provide the guiding resources – and indeed, the theological legitimacy – for later missionary activity within largely Gentile areas. That said, it seems reasonably clear to me that Jesus directed most of his vocational energy towards his fellow Jews – urging them to be the Israel of God they had been called to be, and to turn with penitence towards their true sovereign. From the perspective of the evangelists, first-century Israel had many problems, but acceptance of homosexual practices was not one of them. Similarly, and despite its pluriform character, first-century Judaism was unanimous in its rejection of same-sex acts. If Jesus’ ministry took place largely within this context, it is hardly surprising that he should not mention anything on this topic. Arguing that Jesus’ silence in this regard is morally significant is like claiming that an archbishop’s silence on the question of papal authority amongst a gathering of priests has any bearing on whether the Pope is the acknowledged and infallible head of the Catholic Church. For first-century Jews, the moral propriety of homosexuality was uncontroversial, precisely because of it near-universal rejection. It was simply a given – part of the assumed “plausibility structures” of the Jewish worldview, in other words. As such, if Jesus was silent on the issue, we do not have to wander terribly far to discover why.

* * *

Mr Munson’s views are neither new nor revolutionary. Rather, they simply reflect the dominant cultural and sexual narrative in today’s West. His Christological invocation, besides being simplistic and naïve, is little more than a veneer, masking a position that has been formed on quite different grounds. The “givenness” of sexual differentiation, as reflected in the biblical narrative (and which seems especially clear at key points) has given way to an individualised conception of marital relations – one that is largely based upon the pattern of desires and attractions of the participating individuals (whoever they may be). To be sure, Mr Munson is free to disagree with a biblical theology of marriage and the underlying significance of sexual difference. But one thing he is not free to do (logically speaking, anyway) is to pretend that a view owing much to late-modern Western constructions of sexuality and individual choice is, in fact, deeply and authentically Christian. Apart from anything else, I have tried to show that any such pretensions founder on the rocks of biblical and theological reality.

Postcards from the Marriage Wars (Part One): The Golden President Turns on the Golden Rule

On May 9th, President Obama told a TV interviewer that he supports same-sex marriage (SSM). This came soon after his Vice-President, Joe Biden, said he was quite comfortable with the notion. I don’t know if that had anything to do with the President’s revelation. He himself has said that his views on gay marriage have been evolving. Right now, he appears to have reached the end of that evolution, though one wonders if his VP’s comments gave him a nudge in that direction. Whatever the case, my point is not to interrogate Obama’s reasons for revealing what he did at this time (some candour on this issue is rather refreshing, actually). Instead, I want to examine the the President’s rather lazy use of the so-called “Golden Rule”, which he pressed into service as a kind of secular theological way of justifying his position. Here are his exact words:

“…the thing at root we [Michelle and Barack Obama] think about is, not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know, treat others the way you would want to be treated”. (David Gibson, “Obama Backs Gay Marriage: Golden Rule Informs American Religion”, Huffington Post, May 11th, 2012. Emphasis mine).

That teaching is drawn from a portion of Jesus’ so-called Sermon on the Mount: “…do to others as you would have them do to you…” (Matthew 7:12). Sounds nice, doesn’t it? Perhaps we should treat others as we would want to be treated when it comes to the thorny, and divisive, issue of SSM. That way, we can all get along. It also seems superficially plausible: if we want to get married, then why should we deny that to others? The Golden Rule, it appears, commits us to this position – and all with the imprimatur of divine authority. Unfortunately, there are a number of problems with the President’s would-be Christian justification.

Most obviously, Obama’s reasoning falls flat due to a basic error. Taken to its logical extension, one might be able to advocate for just about anything, provided one was a supporter of the act in question. This is patently absurd. As Catholic philosopher, Francis Beckwith, has written, the Golden Rule “is not a quid pro quo for preference satisfaction reciprocity. Otherwise, it would mean that if one were a masochist, for example, then one should inflict pain on others” (“The President, Jesus and the Golden Rule,” Catholic Thing, 11th May, 2012).  Conversely, if one simply didn’t want to get married personally, one would have grounds for reversing Christ’s maxim and denying same-sex couples what President Obama clearly thinks is a sacred right (or rite) demanded by Christ himself. I mean, if I am treating others as I treat myself, and I don’t want to marry, then refusing gay couples the opportunity to do so is consistent with the logic of the President’s preference-based interpretation. If Obama can cite this verse to support SSM, one can easily cite it based upon one’s own, contrary preferences. Thus, any superficial usefulness it might have possessed collapses into incoherence.

Indeed, The President didn’t seem to realize that the Golden Rule, when used in such a lazily secular manner, does not settle the issue of the moral status of SSM. Employing Christ’s maxim as Obama did only works if one is already committed to the rightness of SSM. One first has to establish that something is a good before it can be said that the Golden Rule impels one to extend that good to another. The problem lies in the fact that President Obama used this verse as a foundational reason for his support of gay marriage (note his words above: “…the thing at root…”). It is question begging, since it already assumes – without reason or explanation – the normative status of SSM. Now, one might argue that SSM simply represents the extension of marriage to include those who want to marry a person of the same sex; if this is so, and we think marriage is a type of good, then surely we should treat others the way we want to be treated? However, it is precisely the meaning and essence of marriage (and therefore, whether it is proper to extend its meaning to embrace same-sex couples) that is contested ground. The Golden Rule, on the other hand, assumes some shared vision of what is good for a person or people. Debate over SSM, which goes to the heart of the meaning of marriage as an institution, is not within its purview. And since the Golden Rule says nothing about SSM – nothing at all – then appeals to it as the most basic grounding for support of the concept are meaningless.

Obama seemed also to misunderstand the nature of Christian ethical teaching. It is not the case that one can use a verse, completely shorn of its context, to make a point. Nevertheless, that is exactly what the President did. He neglected to mention that Christ’s maxim was a summation of the “Law and the Prophets” (part of the very same verse). What this means is that the Golden Rule is integrated with the rest of the Scriptures; it does not stand alone, in splendid isolation, ready to do the work of anyone who wants to justify anything on the basis of reciprocal preference. It is grounded in a particular theological context that says nothing at all about SSM, but which upholds the ideal of marriage as a union between a man and a woman (see Genesis 1:27; 2:23-24). What’s more, Matthew 7:12 is integrally tied to the rest of Jesus’ teaching – teaching which makes plain the fact that he upheld the creational ideal found in the Bible’s premier book. In fact, just twelve chapters after uttering the Golden Rule, Jesus pointed to the fact that “at the beginning” marriage was created as a union between a man and a woman (Matt. 19:1-6). Now, one might object that these verses don’t say anything about SSM either. Two things can be said in response. First, Jesus’ citation of the Genesis text implicitly ruled out sexual unions that lie outside the bounds of heterosexual marriage. His citation, I submit, assumed exclusivity of scope. Second, Jesus was an observant Jew, steeped in the OT, and living in the socio-cultural matrix of first-century Judaism. Support for homosexual acts – and therefore, advocacy of SSM – would have been highly unlikely, to say the least.

The upshot of all this is that President Obama has – unwittingly, perhaps – pitted Jesus against himself. One cannot believe what Jesus taught in Matthew 19, and yet use Matthew 7:12 as a way to advocate for SSM. Either that, or it appears the President has implied that not even Jesus taught in accordance with what the leader of the free world thinks is a proper interpretation of the Golden Rule. For Obama, who states that he and his wife Michelle are practising Christians, something is seriously amiss. How, pray tell, would he reconcile his reading of Matthew 7:12 with Christ’s teachings on marriage (found in the very same gospel)? If it’s true that Christ upheld the ideal of heterosexual marriage, and regarded homosexuality as a sin (as any observant Jew of his time would have), how would the President be able to maintain his religious and theological justification for SSM when it brings him into jarring conflict with the central figure – and the ethical model – of the faith he professes?

As one can see, several problems abound with Obama’s tortured, and tortuous, theological reasoning – and all this before we arrive at an exegesis of the passage in question. Looking at it in context, it’s clear that Matthew 7:12 can only be used as a justification for SSM advocacy by way of imaginative sophistry or intellectual laziness. It comes as part of Jesus’ Sermon on the Mount, which, although beloved by people who say they admire Christianity (but cannot really commit to all of its teachings), is actually directed towards disciples. This is made plain at the beginning of the section, in Matthew 5:1. Rather, it is an “in-house” sermon, directed towards those who already followed Jesus. Even if Obama’s interpretation were hypothetically plausible, it still would not warrant support for a change in public policy (true, Obama stated his stance on SSM as a personal view. But as President of the United States, and thus that nation’s leading public figure, his personal views cannot easily be disentangled from his public stance on issues).

Everything I have mentioned – the various layers of context within which the Golden Rule sits, Obama’s lazy and undiscerning application, and Jesus’ own recorded stance on the question of marriage – leaves one dubious about the prospect of Christ’s maxim doing all of this theological and intellectual heavy lifting. However, if we move on to the immediate context of Matthew 7:12, that prospect seems even more remote. Just before he uttered his famous words, Jesus spoke of asking (God, presumably) for one’s needs to be met. He then used his present audience in an analogous manner to show them that God could be trusted to supply their needs (Matt. 7:9-11). Moving from the lesser to the greater, Jesus concluded that if sinful human fathers would nonetheless liberally supply their children with everything they needed, how much more would one’s Heavenly Father supply one’s own needs, and work for one’s own good? Reading verse 12, it is apparent that Christ’s “Golden Rule” exhortation was the direct implication of God meeting the needs of his disciples. In like manner, they are to treat others in the same way, with the way one treats oneself (defined in a basic, commonsensical manner) acting as a yardstick. Their lives are to be characterized by a regard for others’ good that mirrors God’s regard for theirs’. In view of what Jesus preached just one chapter earlier – exhorting his disciples to refrain from worrying about the basics of life, precisely because of God’s provision (Matt. 6:25-34) – it seems one has some details regarding the kinds of goods and the sorts of needs one might meet when treating another as oneself. As I noted earlier, such a specific, and contemporary, concept/issue as SSM was never within the purview of Jesus’ teaching at this point.

It is sad to see someone of such intellectual acuity commit such an elementary blunder in an effort to “reconcile” the teachings of Christ and the church with modern-day concerns that are diametrically opposed. We can be thankful that President Obama has at least shown enough candour on this issue to be forthright and honest. As a lawyer, however, one thinks he would have been able to do better. But hey, I suppose that’s what you get when you try and please two groups whose disagreement over this issue could not be sharper. More seriously, it shows us that there are times when Christian ethical teachings simply will not submit to secular concerns, no matter how much one may try. Not even a President, powerful as he is, can reconcile the irreconcilable.