The Problem with Religion
There is a clear connection between the sexual revolution and the growing antipathy evident in our culture toward freedom of religion. Perhaps the first time this caught the news headlines was in early 2015 when the Indiana state legislature proposed a Religious Freedom Restoration Act that was in part designed to protect the rights of business owners with religious objections to LGBTQ+ lifestyles with regard to hiring policies. The proposal met with swift and widespread condemnation, most significantly from corporate America, on the grounds that, if passed, it would allow such religious businesspeople to discriminate against LGBTQ+ employees. In the end, then–Indiana governor, Mike Pence, signed a watered-down version of the original bill into law. But a message had been sent: significant sectors of the culture no longer considered religious objections to LGBTQ+ matters to be anything more than bigotry, and policies based on such no more than pandering.
In fact, this position was already clear in a significant ruling of the United States Supreme Court in 2013, that of United States v. Windsor. The background was the Defense of Marriage Act (DOMA), signed into law by President Clinton in 1996. This legislation specifically excluded same-sex partnerships from the state-recognized definition of marriage. DOMA, however, came under challenge by a woman named Edith Windsor. In 2007, Windsor had married her same-sex partner, Thea Spyer, in Canada. The couple lived in New York state, and when Spyer died in 2009, Windsor tried to claim the federal estate tax exemption to which legally recognized spouses are entitled. This claim was denied under the terms of section 3 of DOMA, which excluded same-sex partnerships, and Windsor sued. Her claim was upheld by both a district court and the Court of Appeals for the Second Circuit in 2012. Then, with the case pending for the Supreme Court, the Justice Department announced that it would not seek to defend DOMA. At this point, a bipartisan legal advisory group of the House of Representatives voted to take up the suit with a view to determining the constitutionality of section 3, which defined marriage as being between a man and a woman.
The Supreme Court ruled, by a 5–4 majority, that section 3 was not constitutional and thereby overthrew the central principle of DOMA, that marriage was to be exclusively understood as between one man and one woman. Public attitudes on the issue were already shifting, and so the decision was not a complete shock. What was surprising, however, was the way in which the court’s majority characterized the motive of the opponents of gay marriage that underlay DOMA. The relevant passage reads as follows:
DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.1
From this it is clear that the court saw the objections to gay marriage as being grounded in what is technically termed constitutional animus or, to put the same idea in more colloquial terms, irrational bigotry.
It is worth reflecting on that for a moment. Christians—and Jews—hold to a view of marriage that sees it as being between one man and one woman, and that for numerous reasons: the teaching of Genesis 2, the complementarity of men and women, and the procreative intention of marriage. Yet in Windsor, the Supreme Court dismisses two thousand years of Christian thinking (and many more of Jewish thought) as nothing more than irrational bigotry. At best, the court presumably decided that even if religious objections to gay marriage had once had validity, they did so no longer and the only reason for maintaining such was a smokescreen for justifying the marginalization of a certain sector of society. When the highest court in the land can codify such a view of religion in a judgment, the times—and the cultural attitudes—have truly changed.
Windsor provided the immediate legal background to Obergefell v. Hodges, 576 U.S. 644 (2015), the Supreme Court case that found same-sex marriage to be protected by the Constitution on grounds consistent with the expressive individualism we have been tracing. Foundational to this finding was the Court’s assertion of the autonomy of individuals in being able to choose whom they wanted to marry. This reflected a position established in law in an earlier decision, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992), in which Planned Parenthood had challenged a law signed by then–Pennsylvania governor, Robert Casey Sr., that imposed certain restrictions on the provision of abortions. The ruling went against Casey, but the interesting part of the judgment was a bizarre but subsequently influential statement by the author of the majority opinion, Justice Anthony Kennedy, in which he described what it is to be a person:
At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.2
Kennedy captures here the very essence of expressive individualism and its implications: individuals can define for themselves what gives them their identity, their purpose in life, and their sense of meaning. With that established as the basic assumption of American constitutional law, the foundation was laid for the later rulings on marriage that saw its restriction to one man and one woman as oppressive, as bigotry, and as hindering personal autonomy and happiness. Gay marriage may not have been inevitable in 1992, but this ruling certainly cleared the ground for it.
Not Tolerance, but Equality
Given the above, it should be clear that tolerance of LGBTQ+ identities was never going to be enough for the movement. To tolerate somebody is, by definition, to disapprove of them, albeit in a rather passive way. But it is also not to recognize them: it is not to affirm their identities as they wish to be affirmed; at best, it is to keep them in place as second-class members of society.
And this in turn helps to explain the reason why such things as cake baking have become so contentious. The Christian baker who refuses to produce a cake for a gay marriage celebration is doing so because her conscience would regard such an act as supporting a relationship she regards as fundamentally immoral. The gay couple, however, regard her refusal as a denial of their fundamental (and constitutionally protected) identity. Equality requires equal recognition of a kind that tolerance simply does not provide.
This tracks back, of course, to the modern psychological construction of identity. If we are above all what we think, what we feel, what we desire, then anything that interferes or obstructs those thoughts, feelings, or desires inhibits us as people and prevents us from being the self that we are convinced that we are. Such obstructions inhibit identity in a deep and substantial way. Verbal insults, of course, are nothing new and have a history as long as that of humanity itself. Goliath mocked David. Cicero insulted Catiline. But with the rise of the psychological self, words have taken on a new cultural power, as witnessed by the fierce debates that now rage over pronouns. The use of a word deemed hurtful or denigrating becomes in the world of psychological identity an assault upon the person, as real in its own way as a blow from a fist.
And this is where religions, especially religions such as Christianity and Judaism that hold to strict codes with regard to sex and sexuality, will end up in trouble because they are going to find themselves in a world that operates with what we might call a different grammar and syntax of identity. For example, when the Christian objects to homosexuality, he may well think he is objecting to a set of sexual desires or sexual practices. But the gay man sees those desires as part of who he is in his very essence. The old chestnut of “love the sinner, hate the sin” simply does not work in a world where the sin is the identity of the sinner and the two cannot be separated even at a conceptual level. In a time when the normative notion of selfhood is psychological, then to hate the sin is to hate the sinner. Christians who fail to note this shift are going to find themselves very confused by the incomprehension of, and indeed the easy offence taken by, the world around them.
In his Notes on the State of Virginia, Thomas Jefferson famously commented that “it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” For Jefferson, this was why freedom of religion was not a complicated matter: the personal religious beliefs of others did not damage him financially or harm him physically. We might infer, therefore, that Jefferson was living in a world where selfhood was not so psychologically constructed but tied far more closely to the physical, to the individual’s body and property. But that does not apply today: in a world where inner psychology dominates how we think of ourselves, then feelings too become very important in how we conceptualize harm. In that world, the personal religious beliefs of our neighbors are of concern because disagreement implies that at least one of us is wrong. And today, that constitutes a form of oppression. Pockets may not be picked and legs may not be broken by religious conservatives, but feelings are hurt and identities are therefore marginalized, oppressed, and denied legitimacy.
- United States v. Windsor, 699 F. 3d 169 (2013), http://www.law.cornell.edu/supremecourt/text/12-307.
- Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992), http://www.law.cornell.edu/supremecourt/text/505/833.
This article is adapted from Strange New World: How Thinkers and Activists Redefined Identity and Sparked the Sexual Revolution by Carl R. Trueman.