Friendly Disagreements with Justice Stegall (A Continuing Series)

[This is an expanded version of a column of mine making the rounds here in Kansas; as usual, I pretentiously felt I needed more space to make my point entirely. Mea culpa.]

Kansas Supreme Court Justice Caleb Stegall and I have known each other for going on 20 years. We're not close friends; I think we’ve met in person four times at most. But all through those years--particularly in the early ones, before I found a permanent place here at Friends University and he found a permanent place on Kansas's highest court--we regularly shared ideas, and argued about ideas, and not-infrequently fiercely disagreed with each others' ideas. Thanks to all these online interactions we’ve come to know each other and, I think, like each other, despite our deep disagreements, perhaps because we can also see in each other some foundational beliefs and loves we share. I look back on the appreciation I wrote on him eight years ago, when Governor Brownback appointed him to his current position, and I don't think I'd change a word.

All of this is just to that when Caleb made the news recently for a letter he wrote to several faculty at KU Law, his alma mater, stating that he would not continue on as an adjunct teacher there, I was surprised. I wanted to understand his reasons for cutting those particular ties--and now, having read the letter, I think I do. As usual, though, I have questions about it, and a disagreement or two as well.

Two years ago, Caleb did another surprising thing: he publicly rebuked leading members of the Kansas Republican party--which he is a longtime member of--for orchestrating a successful vote against Carl Folsom III, a lawyer with a long career as a public defender on the state and federal level, whom Governor Laura Kelly had nominated to the Kansas Court of Appeals. It was, of course, just a partisan, party-line vote, but GOP leaders had claimed justification because Folsom had, as was his job, defended people charged with various crimes, some of them pretty horrible ones, and that was used to smear the nominee. This frustrated Stegall, and he called out those Republicans for failing to honor “the ideal of a public-spirited, deliberative, and reasoned engagement with others.” 

Now, my philosophical understanding of that ideal isn’t exactly the same as Caleb’s; as I've written before, classical liberal notions of open discussion depend, among other things, upon a degree of civic friendship, which in turn depend upon the maintenance of norms which many people today, for many different reasons (technological as well as ideological, historical as well as cultural), may rightly feel to have been rendered moot, over perhaps even entirely (or perhaps even justifiably) overturned. Much of our divergence here is likely reflective of what Caleb asserted in his letter as the imperative of "privileging individual character and merit above group characteristics"; leftist and communitarian that I am, I'm much more willing than he to consider how norms may be tied up with structural, collective, and historical realities which must be considered whenever one makes judgments in reference to individual rights or claims.  But whatever those particular philosophical disagreements, the liberal ideal he defends remains one which I--as a college professor and occasional pundit whose whole career is dependent upon communication, discussion, and engagement--I have great respect for as a crucial component of our civil society. And regardless, I admire how that ideal has guided Caleb's thoughts and actions over the years as well. 

So how does ideal come into play with his decision to end his teaching association with KU Law? On my reading, it turns on his concern that his old stomping grounds have shown “an institutional failure to cultivate the norms, habits, and skills necessary to the task of lawyering.” The precipitating cause of this concern of Caleb's was what he called the “bullying” response made by of certain members of the KU Law community (specifically, those associated with the school's Diversity, Equity, Inclusion, and Belonging Committee) when the conservative KU Law Federalist Society invited a speaker from the controversial Alliance Defending Freedom to campus. The bullying he mentions included calling student leaders of the club into a meeting to warn them against the invitation, and those students being subsequently labeled as facilitating hate speech by the aforementioned committee. (The speaking event went forward as planned, by the way, with accompanying protests; everyone's First Amendment rights were fully respected, or at least so it appears.)

Now in light of prioritizing engagement, Caleb is plainly correct that, like them or hate them, the ideas promulgated by ADF—which generally frame almost any advance in LGBTQ rights as an attack on religious freedom (consider the role they played in pushing forward a current lawsuit over the supposed potential interference which a Colorado law poses to those who do not wish to acknowledge the legality of same-sex marriage)—have long been present throughout Kansas’s legal environment, including at events sponsored by the Kansas Bar Association. Hence, discouraging students from confronting certain ideas—even those which, as Stegall admits, may be seen as “existentially threatening”—is probably not the best way to prepare Kansas’s future lawyers. Quoting Professor Richard Levy, a longtime KU Law faculty member, Stegall rightly makes the point that “if lawyers cannot talk to each other about difficult subjects on which they disagree, how can we expect anyone too?” That position seems consistent to me.

But I'm not sure how to square that consistency with his decision to separate himself from KU Law. I suppose that if in his considered judgment his alma mater really has caved into a kind of "authoritarianism" which threatens to "cripple a person's ability to critically engage with ideas or people with whom they disagree," then it might not be unreasonable to speak out against those developments by way of withdrawing from the institution. Perhaps we could understand that as a form of protest, or as the posing of a countervailing power as a way to pushing KU Law's leadership to take corrective action. (Caleb perhaps implies this, when he wrote in his letter that he is acting on this matter with a consciousness of others who may feel the same disgruntlement as he, but lack the "authority or security to speak up"--something which, as a state supreme court justice, he obviously is in full possession of.)  But still, in our present moment, it seems to me that remaining present exactly so as to continue to engage, as a colleague and friend, with those whom one disagrees—including disagreements over how to respond to the way some at KU Law may have dealt with an ideological disagreement!--is vital.

Last year, Caleb gave a wonderful address--which he quoted from in his letter to KU--that addressed in part the fact that the law can never be entirely disentangled from the arguments over the ethical concerns and procedural outcomes which always surround it. After sharing an old Jewish parable, he concluded that, in the midst of these quandaries, “heaven smiles mischievously down on us”--then added, “we can smile back, if we have the stomach for it.” It's entirely possible to read this passage--and I suspect this was Caleb's intention--as suggesting a criticism of KU for lacking the stomach to deal with serious, even "existential," disagreements. But by the same token, that line could be understood as a petard upon which Caleb has hung his own arguments. 

To be sure, every person’s stomach for dealing with disagreement is going to be different, and to repeat what I said above, I can certainly see withdrawing in the face of a disagreement as sometimes a productive way of engaging with it. It's not like anyone, I suspect, can entirely refuse to ever draw lines in the sand which they will never cross, or will always withdraw to one side of. So I take seriously Caleb’s reasoning for drawing his line here; I'm not in a position to say he did wrong, and I'm not in agreement with those with condescending takes on my friend's decision. But still, I must admit: it just doesn’t seem consistent to me with his own best arguments; it's not entirely like the smart and gleeful debater I've known over the years. No doubt, this will be something we can continue to disagree about as well.

Why Councilmember Brandon Johnson Matters

[Cross-posted to Wichita Story]

My title is pretentious, of course; Brandon Johnson—the councilmember representing Wichita’s heavily African-American and traditionally Democratic District 1, a longtime community activist and an alum of Friends University where I teach, as well as someone I have a friendly (if not close) relationship with—matters to a lot of different people for a lot of different reasons, most of them far beyond the specifics of current Wichita City Council debates. But as a someone who has spent decades observing and thinking and writing and teaching about politics, Brandon Johnson’s comments, towards the end of another marathon session dealing with the proposed non-discrimination ordinance before the council, were, whether he realized it or not, a deeply profound perception about the nature of political life, and it speaks well of his intelligence and perception that he said them. Watching the whole thing is a revealing as well as often depressing slog, but if you zip to the 4 hour and 6 minute mark, you’re hear this (edited slightly for clarity):

A 'community divided' [over]...a non-discrimination ordinance? I don't know if I would go that far. There are upset people. There are people who have questions right now. I forget how many e-mails I've gotten; from organized groups I may have had six or seven hundred e-mails. We may have seen the people outside. But [whether the delay is] 90 days or 90 years, there are going to be people who are concerned about this because it is offering protection to groups who are discriminated [against]....Whenever those opportunities come up, there is disagreement; there is division. Folks [will be] upset....Everybody's not going to agree with protecting folks. It's not going happen. There are folks who want to be able to do what they've been doing, think how they've been thinking. We've seen that outside...in the/ 'locker room' talk. We've seen this in some of the stuff we heard today, the 'I love you, but'. That doesn't change in 90 days. It's not. They are going be folks who are upset, still in 90 days.

The context, and the primary point, of his comments are actually quite straightforward, I think, even if that straight path is only clear in hindsight. So bear with me as I quickly run through the past four weeks….

A month ago, a proposed ordinance that would specifically require that national and state anti-discrimination laws regarding housing, employment, and public accommodations be enforced locally appeared upon the city council’s docket. The actual details and timeline of its preparation remain unclear--though it should be emphasized that Wichita currently has no locally specific civil rights ordinance at all, and it is to Mayor Brandon Whipple’s great credit that he saw the need for one. Unfortunately, in the originally presented ordinance, many of the terms describing those classes of individuals that would be protected were vague or undefined, and despite its stated intention, it actually included no specific enforcement mechanism, nor did it identify penalties should such a mechanism be put into effect. One thing that was clear from the outset, though, was that for both proponents and opponents of the ordinance, the point was the protection it provided to LGBTQ individuals, the state-level protections of which most people sympathetic to their concerns consider lacking, hence the move by several cities to make specific their inclusion. (The proponents of this effort regularly insist that this is a broadly motivated concern—Johnson explicitly says so in his remarks mentioned above—and yet no one really believes this, and no one really should: the arguments over the past month have overwhelming involved matters of gender identity and sexual orientation and the religious—specifically, the overwhelmingly conservative Christian—objections to such.)

The problems with the original ordinance resulted in a flurry of activity over the weekend, as Mayor Brandon Whipple scrambled (while away from Wichita attending a wedding) to placate furious LGBTQ activists and organizations, some of whom saw the proposed ordinance as a hastily slapped together affront to those who take LGBTQ concerns truly seriously. He was successful in this effort: by Tuesday morning, when the ordinance came before the city council for its first official reading, it had been significantly re-written, and it was representatives of Equality Kansas, and not the city’s staff, who providing explanations of the ordinance’s fine details. The frustration over this hurried process was immense (and I think, at that point in time at least, entirely justifiable). Councilmember Jared Cerullo’s objections to having been substantively excluded from the whole drafting process, despite being the only LGBTQ individual on the city council and thus an obvious partner to these discussions, was, I though, particularly poignant. It is very likely, despite Whipple’s impassioned pleading (in contrast to Johnson’s quietly supportive approach), that the whole thing would have been voted down if Councilmember Becky Tuttle hadn’t gotten the city’s legal department to assure the council that the whole ordinance could be effectively re-written again before its second reading. With that, it passed 4-3, with Tuttle and Councilmember Cindy Claycomb joining Whipple and Johnson in voting it through.

By the time the ordinance came before the city council again, however, it was clear that enough changes had to have been made to its language, its details, its definitions, and its enforcement process, that it was substantially a brand new ordinance, requiring a reset to the whole process. The new first reading was an endless, 5+ hour parade of opposition—again, overwhelmingly reflecting conservative Christian concerns—and, in a much smaller key, support. In the three weeks since the prior discussion of the proposed ordinance, there obviously had been a lot of organizing, yet little formal discussion in the venues established for such—specifically, the DABs, the advisory boards established for each city council district. Part of the reason for this was the July 4th holiday, which made it hard for people to get together and actually have an organized conversation. And in this vacuum a lot of misinformation predictably spread, in particular from the Sedgwick County Republican Party, though the local Democratic party’s response to the GOP’s attack got things about the proposed ordinance wrong too. (It’s worth noting that some local conservative activists went beyond talking points to calling upon their followers to contact—or maybe outright harass—certain councilmembers at their homes, and tell them that their election prospects depend upon their changing their votes.)

All of this, from what I can tell, simply served to underline an emerging consensus, one which I heard repeatedly when I attended Councilmember Bryan Frye’s re-scheduled DAB meeting after the first reading of the new, substituted version of the ordinance: this whole discussion has been unnecessarily heated and hasty, and has sown division and disagreement throughout the city, because of both confusion over, and the disrespect shown for, the city’s normal legislative process. For myself, while I have no disagreement whatsoever that the process in bringing this ordinance forward has been a complete mess (and while there is a lot of fault for that, it has to begin with those who wrote it and introduced it in the first place, particularly Mayor Whipple), the result at this point in the process is nonetheless, actually, a pretty excellent non-discrimination ordinance, one that would serve an important purpose. On the basis of some exchanges I both listened to and had with Councilmembers Cerullo and Claycomb at different events during this in-between time (both of them had ended up supporting the ordinance at the previous marathon city council meeting, and both of them are up for re-election this year), I thought sympathy for the resulting policy would win out over anger regarding the process. I was wrong—which is what brings me back, at last, to Councilmember Johnson’s wise comment.

Everyone following the news knows what happened yesterday: another long parade of opponents, though this time with an almost equal contingent of better organized, better informed supporters of the proposed ordinance, followed by an even more contentious display of accusations, insults, apologies, and bargaining involving the five councilmembers who had supported different versions of ordinance at different times (most of which revolved around the mayor, who started out loudly demanding passage but quickly found himself on the defensive—as Whipple himself once quoted his wife as saying during a class I’d invited him to speak at, with his election at least city council meetings aren’t boring any longer). Councilmember Tuttle proposed tabling the ordinance for 90 days, until early October at the soonest, to allow for more DAB participation, a city council workshop day, and the involvement the city’s new Diversity, Inclusion & Civil Rights Advisory Board, which relatively quickly garnered majority support on the council and passed 5-2. (The arguments over the Civil Rights Advisory Board have been interesting—originally it was Mayor Whipple who claimed, when challenged over their lack of involvement in the shaping of the ordinance, that the board was just starting out and couldn’t productively play a role yet, but when Whipple, accepting that he’d lost the votes of Tuttle, Cerullo, and Claycomb, suggested quickly involving the board and bringing the ordinance back for another second reading in 30 days, it was Tuttle who said they board was just starting out and wasn’t organized enough to do so.) It is at this point that Johnson’s comment, which was framed as kindly rebuke to Tuttle’s successful motion, becomes relevant.

In the larger scheme of things, Tuttle’s proposal is perfectly reasonable. As Max Weber famously put it more than a century ago, politics is the “slow boring of hard boards.” It’s a difficult and time-consuming process—so why not take some more time to work through these hard questions? Johnson’s response, which explicitly referenced Martin Luther King, Jr.’s “Letter from Birmingham Jail,” with its condemnation of “white moderates” who told King to slow down and wait (Johnson could have just as easily referenced King’s blistering 1964 follow-up to that famous letter, Why We Can’t Wait), puts things in a different context. A focus on the legislative process, and the time and compromises involved, can be civically empowering, and is often central to any serious effort to think clearly about what “government by the people” actually means. But just as often, unfortunately, a focus on process can become an almost rote incantation, something imagined—usually not explicitly stated, though it sometimes is—as an entirely apolitical, non-partisan, and non-“divisive” way to address the reality of disagreement in our pluralistic society. As I observed in a recent column in The Wichita Eagle, this ideal is an old one, but it is also one that has never consistently worked, and today increasingly does not represent reality. The growing recognition by some that the contentious “management” of deep disagreements, through allowing everyone to organize and have their say (sometimes endlessly) and then somehow discovering a compromise in the midst of the fighting, rarely results in a policy that satisfies anybody or even works is, to say the least, kind of frightening.

Johnson’s comments, without ever going into this kind of theoretical detail, foregrounds this reality. When you are talking about really deep disagreements—and you can’t get much deeper than those between people who, on the one hand, draw upon long personal histories with discrimination of and contempt for their sexual identities and orientations, and people who, on the other hand, draw upon devout religious beliefs and (more relevantly) presumptions about the legitimate social expression of those beliefs—why would you think anyone will change their mind? However poor the process of shaping the proposed ordinance was up until yesterday (and it definitely has been poor, though there are examples from recent Wichita history of controversial decisions being made with even fewer and less transparent conversations than this ordinance has gotten over the past month), there is no reason to believe that the process going forward from this point on promises any kind of revolutionary break-through. As Johnson subsequently said, the only options going forward now are maintaining the protections provided by the ordinance, or weakening them by allowing more exceptions to be introduced. (Johnson didn’t mention the third, entirely obvious option: that more discussion might actually result in the ordinance being defeated entirely, despite a clear majority of members of the city council being on the record saying that local enforcement of state and national non-discrimination laws is necessary.)

Tuttle defended herself politely here, insisting that she wanted this ordinance passed, but believed that the delay—with more DAB discussions, with a council workshop, with formal Civil Rights Advisory Board involvement—will actually make it stronger, with broader public support, or at least great public acceptance. Johnson clearly disagreed with her, and I feel he was right to do so. I can’t emphasize this enough: taking the painstaking, slow, civic-minded approach to crafting rules and making decisions is absolutely essential when your goal is to increase public involvement with a problem, because the problem is general and the possible responses to it are multiple and unclear. This is exactly why I and many others have insisted, for example, that the city council must go slow in making decisions about the future of Century II; despite the efforts of some to present it as an all-or-nothing choice, it obviously is and shouldn’t be.

But as you get close to the point—by whatever the means you get there—where all those multiple options narrow down to one solution or one proposal or one course of action, one which you can only support, oppose, or amend, the civic essentialness of continuing engagement rapidly diminishes. There comes a point where rehashing the process becomes mostly a way to make attacks against (or defend yourself from against) the existing solution. Again, we all know this—we’ve all been part of meetings which never end and never accomplish anything, because someone is always upset with whatever might be done. As Councilmember Johnson said, the one thing you can count on in a free and pluralistic society like our own is that “there is disagreement, there is division.” You can argue, of course, that when it comes to this non-discrimination ordinance, Wichita—or at least our city council—is not at that narrow decision-making point yet. But that is a judgment call, not a determination that can be made in a dispassionate, objective, principled way. And if I may conclude by beating a favorite dead horse of mine, this is exactly why parties, and partisanship, is both 1) useful, and 2) unavoidable.

Why useful? Because parties frame for voters the sorts of priorities that will guide the judgment calls which different politicians will make after everything that goes into the legislative process is done, and thus allows voters to have some input over how and when and for what reason their elected representatives will say “okay, no more talk; it’s time to vote.” And why unavoidable? Because, as much as many city councilmembers (including Johnson himself!) may profess a deep commitment to just neutrally following what staff provides them with and making whatever decision their constituents seem to prefer, much of the time, in actual fact, voting in response to party priorities is exactly what they are doing anyway. I’m sorry if some take offense at that, but I can only plead that it’s very difficult to look at the votes that have been cast and the justifications that have been offered over this past month and yet still believe that the necessity of these people to negotiate the reality of both Republican and Democratic voters in their districts isn’t a central part of their decisions as well.

As another old saying puts it, politics is like making sausage—you shouldn’t look at it too closely. For better or worse, the people of Wichita have been granted, over the past month, a close tour of one particular sausage factory. The process was flawed, as legislative processes so regularly are, and if you want to hold Mayor Whipple responsible for that, you certainly could (I do, at least in part). But the resulting sausage is also, if you’re in political agreement with people like Councilmember Johnson, pretty good. Of course, if you’re not in political agreement with people like Councilmember Johnson, you probably don’t think it’s good at all. That’s called disagreement; that’s the nature of politics. When a city like Wichita comes to the point of division, you could wait in the hopes the divisions go away, or that your staff will come up with some new approach to mollify things, or that some other process could be tried to moderate extremists on both sides. I might work; hey, I might be wrong! But I don’t think I am, and I don’t think Councilmember Johnson is either. Hence today, after a very long month for every member of the city council (and three more months, at least, before they do it all again) I salute him and thank him for his clear-eyed perspective. As the man said, eyes on the prize, sir; eyes on the prize.

On Dreher's Benedict Option, the Christians and Localists Who Can Live It, and the Ones Who Can't

[Cross-posted to Front Porch Republic]

Rod Dreher and I aren't close friends, but I've been blessed with the opportunity to associate with and learn from him a handful of times over the years, and like tens of thousands of his blog's regular readers, I've been further blessed by the ideas and arguments his writings have sparked in me--even the writings of his that I've thought to be overwrought, off-the-mark, or just plain wrong. The publication of The Benedict Option, a manifesto that he's been mulling over ever since he first staked out intellectual territory as a "crunchy conservative" more than ten years ago, feels like a capstone to that long intellectual association. I don't mean that to sound like a dramatic conclusion or completion; Rod and I, like many others, will no doubt continue to argue in a friendly way about all these issues for a long time to come. But this book helps me understand, better than I ever have before, a gap which exists between his perspective on what both community and Christianity mean and my own. Perhaps future events or arguments will lead to that gap being bridged, or perhaps they will widen it even further. For now, though, it exists, somewhat avoidable in its breadth, but by no means impossible to speak across. That, too, is a blessing.

I have three points to make about this book. The first is that it's really pretty great. Some chapters are better than others, but all are solid, as much as your mileage of appreciation may vary. (For example, I found chapter 2, "The Roots of the Crisis," in which Rod lays out the whole intellectual history of Western Christendom's rise to and fall from sociopolitical and cultural prominence in 26 pages, a little simplistic and pat, but those who aren't scholars may well disagree with me; on the other hand, I thought chapter 10, "Man and the Machine," was a sharp, haunting synthesis of the many powerful arguments which have been made regarding the "fatal error" of accepting unquestioningly "a world mediated by technology"...though I have no doubt that plenty of conservative Christian couples who only have children thanks to in vitro fertilization will be infuriated by his description of the damaging liberationist logic which he sees that practice as implicitly licensing--pp. 223, 234-235.) Overall Benedict Option is not, I think, Rod's best writing; ideas are most deeply and effectively explored when they are organically revealed in the context of a story, and he did that better when he told the tale of his sister's life, her death, and the hometown they shared in The Little Way of Ruthie Leming (a book I couldn't write enough about when it first came out, and which I still buy copies of to give to students of mine as they graduate, marry, or move away), and then again when he wrote a spiritual autobiography of sorts as a sequel, How Dante Can Save Your Life. Benedict Option isn't organic in that sense; while there are stories in it, they are arranged to serve as parts of his argument. Here the ideas, not the stories, come first.

The second thing to say about this book is what all those ideas are for--but in all likelihood, anyone who has read this far already knows the answer to that question. Rod's great desire is for what he accepts as the truth claims and the culturally and spiritually formative power of traditional Christianity to be conserved, in the midst of a world which he sees as denying and undermining the conservation of both of those things left and right. By so doing, Rod argues that the moral stability (and thus the social and cultural stability as well) of Western civilization is at great risk. "We Christians in the West are facing our own thousand-year flood....The light of Christianity is flickering out all over the West. There are people alive today who may live to see the effective death of Christianity within our civilization....This may not be the end of the world, but it is the end of a world....The floodwaters are upon us--and we are not ready" (p. 8).

So far, so very much like many other reactionary jeremiads, whether from James Burham in the 1960s or from Newt Gingrich in the 2010s. But Rod's great insight, one which he has expanded upon and deepened as he has worked out the implications of being a "counter-cultural" conservative, is that the usual political tools of conservation which many American Christians have trusted in ever since the rise of post-WWII fusion conservatism--namely, using political organizing to capture and then maintain a commitment to the Republican party as a way to defend economic freedom, provide for a strong defense, and codify into law socially traditional Christian moral principles--have utterly failed. Hence the need for a turn to an older strategy--one older, as the above referenced intellectual history implies, than the founding of the United States, and indeed older than the entire post-Protestant Reformation socio-economic project of liberal individualism and moral pluralism. Rod's strategy is one of strategic withdrawal from (which also means, as Alan Jacobs astutely observed, a greater strategic attentiveness to) the ordinary cultural practices of the modern world around us, with the aim of developing sustainable local and communal alternatives to them, as the Benedictine monks of old did in the face of the chaos of the post-Roman world. "American Christians are going to have to come to terms with the brute fact that we live in a culture...in which our beliefs make increasingly little sense. We speak a language that the world more and more either cannot hear or finds offensive to its ears. Could it be that the best way to fight [this] flood is to...stop fighting the flood?" (p. 12).

The idea of recasting a broad social and cultural transition and struggle as something other than a straight-up political battle between interest groups and party factions is hardly new, of course. But Rod expresses the ideal of this old vision--a humble, communitarian, civic, populist, local, familial, and "tending" vision, to use the language of political theorist Sheldon Wolin--beautifully:

Here's how to get started with the antipolitical politics of the Benedict Option. Secede culturally from the mainstream. Turn off the television. Put the smartphones away. Read books. Play games. Make music. Feast with your neighbors. It is not enough to avoid what is bad; you must also embrace what is good. Start a church, or a group within your church. Open a classical Christian school, or join and strengthen one that already exists. Plant a garden, and participate in a local farmer's market. Teach kids how to play music, and start a band. Join the volunteer fire department....We faithful Orthodox Christians didn't ask for internal exile from a country we thought was our own, but that's where we find ourselves. We are a minority now, so let's be a creative one, offering warm, living, light-filled alternatives to a world growing cold, dead, and dark....Ceasing to believe that the fate of the American Empire is in our hands frees us to put them to work for the Kingdom of God in our own little shires (pp. 98-99).

Rod's description of "antipolitical politics" is deeply influenced by the writings of dissidents from Eastern Europe during the era of communist tyranny there, Vaclav Havel most particularly. He sees the Benedict Option as a way to talk about Christians building, as Czech and Soviet and other dissidents had to, "'parallel structures' in which the truth can be lived in community," a "parallel polis" for the sake of "establishing (or re-establishing ) common practices and common institutions that can reverse the isolation and fragmentation of contemporary society" (pp. 91-92, 94). What he's talking about is coming to recognize that ordered actions and traditions, routines of integrity and sacrifice and commitment, performed in particular places among a shared community, are valuable in themselves, and not because it may have some practical consequence in the public world. In comparison to the utilitarian and individualistic assumptions of liberal modernity, this is a powerful vision.

It is also, in a perverse way, an appealing one; few are the people who haven't, at one point or another in their lives, enjoyed seeing themselves as the lone sane people in the room, as the brave and necessary and suffering resistance to a malevolent agenda, whether embodied in some ignorant bureaucracy or a hateful boss. But there is a complication which comes relying upon such language: it tends to reinforce a circle-the-wagons mindset, thus making the appeal to an alternative seem more exclusionary than perhaps it ought to be. The attention which Rod--a strong moral traditionalist when it comes to sexual morality, who writes that "the modern re-paganization called the Sexual Revolution can never be reconciled with orthodox Christianity" (p. 197)--has paid on his blog, and in this book, to same-sex marriage, transgender issues, and more, often takes this form. In a response to a review of The Benedict Option by Emma Green, in which she notes that the book provides very little advice on how conservative Christians should deal with "the LGBT Americans they blame for pushing them out of mainstream culture"--something Green correctly observes Benedict Option Christians couldn't avoid even if they wanted to, since there will always be "challenges at the boundaries of sub-cultures," Rod becomes a little defiant:

LGBT activism is the tip of the spear at our throats in the culture war. The struggle over gay rights is what is threatening our religious liberty, putting Christian merchants out of business, threatening the tax-exempt status and accreditation of Christian schools and colleges, inspiring the federal government to order public schools to allow transgenders into locker rooms....Our religious liberty and the doctrinal integrity of our churches, especially our understanding of human nature and the meaning of sex and the family, depends on it.

There are lots of "ours" in those sentences, just as the passages quoted above speak of "we Christians" a lot. Of course, American Christians are Rod's target audience, and he's one himself, so that makes sense. But the more you dig into this book, the clearer it becomes that, as much as what he has to say about liturgy ("corporeality is how God created us to function....liturgies do more than pass on information....they form our imaginations and our hearts"--pp. 109,111), work ("Germany's strict laws mandating shop closing times...make life less convenient for consumers...but...the protection of that regulation....cultivate[s] more balanced, integrated lives for the German people"--p. 178), community ("we have to start locally....in order to know what our neighbors need and want, we will have to be close to them"--p. 95), and technology ("to see the world technologically, then, is to see it as material over which to extend one's dominion....technology as a worldview trains us to privilege what is new and innovative over what is old and familiar and to valorize the future uncritically"--p. 221) may appeal to and positively provoke many, Rod really isn't speaking to all of us Christians. Which leads to the third thing to say about his book: that its persuasiveness is very much dependent upon looking inside yourself, and figuring out whether you are part of its true target audience or not.

Rod writes that the Benedict Option is of crucial importance to "orthodox Christians" (sometimes using a small o, sometimes a capital O) or "believing Christians" or "faithful Christians" or "serious Christians," all of whom "recognize the toxins of modern secularism." But recognizing that isn't probably enough--after all, there are thousands of liberal Christians and others who would readily admit to the role modern secularism has played in robbing American culture of a way of talking about the necessity of justice and the plague of greed. (Think of anything written by Ron Sider or Karen Armstrong or Jim Wallis or dozens of others, or most anything published in Sojourners or Commonweal.) So more specifically, Rod means "faithful Orthodox Christians...theological conservatives within the three main branches of historical Christianity." But even more, it means believers who have "internalized" the "classical Christian view" that "[t]he point of life, for individual persons, for the church, and for the state, is to pursue harmony with [Christianity's] transcendent, eternal order" (pp. 18, 54). But even there we have a problem. At one point Rod refers to Hillary Clinton as someone "deeply hostile to core Christian values" (p. 89)--yet I strongly suspect that Clinton herself (a life-long church-attending Bible-quoting Methodist, one who has frequently spoken publicly about her prayer life) could quickly--and honestly--assent to believing that "the point of life is to pursue harmony with a transcendent eternal order." Rod has long been bothered--and rightly so--by "Moralistic Therapeutic Deism," a sociological label developed to capture the vague spiritual sensibilities held by so many Americans, but allows that even that collection of beliefs includes the conviction that God "created and orders the world" (p. 10). So it can't simply be a matter of affirming the existence of a "transcendent, eternal order"; the Benedict Option is, I think, to Rod's mind, essential to the cultural survival of a Christianity with a very particular doctrinal version of the universal moral order.

The importance of doctrine rears its head when Rod writes, briefly, about my own faith, Mormonism, and some of the ways our congregations work to encourage "unusually strong social bonds" and a "unified community of believers": "The Latter-day Saints (LDS, or Mormons) may not be Orthodox Christians, but they are exceptionally good at doing the kind of community building that...is a vital part of being a Christian" (pp. 131-132). I don't mean to make a big deal out of this generous passage, especially since Rod surely knew that his book would be read by any number of old-school evangelical Protestants for whom Mormonism is a dangerous cult and thus must be discussed carefully. But still: so we're not Orthodox Christians, in The Benedict Option's particular definition of "Orthodox Christians," even though he then goes on to say that we're doing exactly what, in his view, Orthodox Christians in today's secular world should be doing? Well, of course, I suspect he might reply; what you do is important, but so is where you stand, doctrinally and denominationally, when you do it. (Rod's complimentary words attracted some thoughtful attention in Mormon circles, but none focused on this particular point, perhaps mainly because most American Mormons couldn't care less about the doctrinal boundaries of traditional Christian denominations.)

So clearly, Rod's argument does not escape doctrinal presumptions. To his credit, he does not over-emphasize this. On the contrary, he speaks highly of intentional Christian groups which take an ecumenical approach to membership (so long as they "avoid watering down doctrinal distinctives for the sake of comity"--p. 137), and he never denies to those who don't hold to his correct doctrine of the eternal order the right to label themselves "Christians"; he never calls Hillary Clinton an apostate or an anti-Christ, for example. But still, he plainly believes that there are Christians--like himself--whose doctrinal take on "core Christian values" will make them targets when and if religious protections which long sheltered religious traditionalists from the full give and take of modern liberal pluralism are taken away...and then there are those that, for better or worse, are already pluralistic enough that living in a "post-Christian" nation will not be threatening. The Benedict Option is a strategy for the former group.

The clearest way to know if you are in that former group, I think, again comes back to sexual morality, about which Rod has written much and thoughtfully before. "Sexual practices are so central to the Christian life that when believers cease to affirm orthodoxy on the matter, they often cease to be meaningfully Christian," Rod writes, and the greatest example of that heterodoxy, in his view, is the belief that sexuality is subject to individual determination--that it is not essentially a corporeal, or communal, or cosmic, but rather a consumer good: "Sexual autonomy, seemingly the most prized possession of the modern person, is not only morally wrong but a metaphysical falsehood." Hence, the line is drawn. If you are essentially opposed or want to distance yourself from any kind of sexual identity or practice which exists aside from or outside of "the covenant through which a man and a woman seal their love exclusively through Christ," then Rod sees you as likely the kind of Christian that is probably in need to seeking a Benedict Option solution in your life  (p. 197, 200-201). If you're not, though, then the Benedict Option probably won't be necessary.

Of course, ideas have a life of their own, and the fact that Rod's argument for the Benedict Option includes elements that are pretty much incompatible with how my wife and I understand the needs of our family at the present time (for example, Rod's emphatic insistence that "it is time for all Christians to pull their children out of the public school system"--p. 155--really doesn't resonate with us) in no way prevents me from taking inspiration--a localist, communal, tending inspiration--from the ideas Rod presents. But it is, nonetheless, a cause for reflection when one comes across such a stark gap. Alan Jacobs strongly dislikes Rod's tendency to talk about the Benedict Option by way of "tip of the spear at our throats"-type formulations, but he wonders if he doesn't have a motivated interest for thinking that way, and that perhaps Rod and his audience of doctrinally traditional believers are "just better Christians" than he is. Liberal Christian (and liberal Mormon!) that I am--as much as I dislike the baggage carried by those particular labels--I confess: I wonder that as well. But I also wonder if Rod's determination on this point may at least partly reflect a perspective that hasn't yet been fully disentangled himself from the tight political association which right-wing Catholics and evangelical Protestants built into the electoral infrastructure of the Republican party from the 1970s through to the 2000s, an infrastructure that became so second-nature to culture war arguments in the wake of the 1960s that the America-centric perspective it lends to debates over Christianity's doctrines and social role is probably pretty hard to shake.

Two examples from The Benedict Option. While writing about the importance of staying involved enough to fight on a national level of religious liberty guarantees, even while focusing primarily on building up local and familial religious practices and resources, Rod comments that "without a robust and successful defense of First Amendment protections, Christians will not be able to build the communal institutions that are vital to maintaining our identity and our values" (p. 84). There's a lot of sense to that...and yet, it's a comment which he makes immediately after having devoted an entire chapter to thoughtfully (and justly!) praising the Monastery of St. Benedict in Norcia, Italy, as an antidote to the disorder of the modern world...an antidote which exists in a country where, obviously, there is no First Amendment. And yet, they abide.

Another, more relevant, example: Rod writes that "Marriage has to be sexually complementary because only the male-female pair mirrors the generativity of the divine order" (p. 201). There are fascinating debates that could--and should!--be had here regarding natural law, Platonic philosophy and the Great Chain of Being, the Holy Spirit, the authority of tradition, and the Hebraic core of actual Biblical ethics (Rod insists that real Christians cannot "abandon clear, binding biblical teachings on homosexuality" (p. 213), but surely only the most blinkered devotee of Biblical inerrancy would insist that the traditional conservative condemnation of homosexuality as disordered can be fully elaborated from the seven short verses in the entire canon of the Bible which mention it)...but even setting all those discussions aside, it is worth noting that Rod speaks of "marriage" here--the civic, legal institution--as opposed to "sexual relations"--that is, the practice which impacts directly upon his understanding of the moral telos of our created embodiment. Which prompts the question: even if one accepts "the generativity of the divine order" as a doctrinal, cosmic, anthropological fact, what does that necessarily have to matter for how a society which does not have an established church--and Rod never calls for one!--chooses to legally respond to the reality of sexual pluralism (a reality which Rod does not deny, even going to far as to point out the many ways Christians need to repent of their "rejection and hatred" of gays and lesbians in the past--p. 213)? Yes, yes, there will be marginal cases, issues involving children, involving those who lack material resources and are culturally adrift, involving conflicts over clashing rights in arenas of medicine, education, business, caregiving, and more. I've never denied the importance of these marginal cases (much as I didn't care for much of the baggage attached to the case, I think Hobby Lobby v. Sebelius was correctly decided, and have said so repeatedly). But to take those marginal concerns, and see in them a wave which will flood public Christianity entirely away is, I suspect, to have at least some part of one's thinking frozen in an era when a particular kind of traditional Christian doctrine really did serve as an at least informal civic establishment in the United States, conveying the idea that if the dominant institutions and practices of public life weren't legally shaped around and weren't politically supportive of the cosmic order, the functions of the universe itself would be violated. Well, count me as modern--and, while you're at it, as Augustinian too: I just don't think, even if I believed all the foregoing was true (and I don't, not anymore; I changed my mind about same-sex marriage five years ago), I just don't see our collective individual choices necessarily having such permanent cultural warping effects on the world around us, nor do I see such cultural warpings as disturbing God's sovereign intentions for the universe even one tiny bit.

So I come to the end of this fine and challenging book and have to conclude: Rod's thoughtful and important call for strengthening our families and rebuilding our communities by way of the same rules of attentive withdrawal and humble practice which communist dissidents and Catholic monks alike long exemplified is one that I can be inspired by and learn from--but it's a lesson he's not actually directing it at me. This makes me sad, a little bit: because when I look at the end of the book, and I read passages like this...

The Benedict Option is a call to undertaking the long and patient work of reclaiming the real work from the artifice, alienation, and atomization of modern life. It is a way of seeing the world and of living in the world that undermines modernity's big lie: that humans are nothing more than ghosts in a machine, and we are free to adjust its settings in any way we like (p. 236).

...I think to myself: yes, that's what I want and need. If I am to make rational sense of the fact that I find my soul responding to much of Rod's antipolitical politics, his parallel polis, his localist alternatives, and his traditionalism, will I need, ultimately, a deeper conversion? Maybe. Or maybe not. But in the meantime, I hope Rod never forgets: for all our disagreements (and some of them are pretty huge), there are plenty of capitalist dissidents and liberal communitarians and heterdox Christians and modern pluralists and aspiring "intenders" like me who think you're on to something. Even if you're not talking to us, we're listening, and we like a lot of what we hear, and are thankful for it.

Three Ways Sam Brownback Could Keep Gay Marriage Illegal in Kansas: Some Free Advice

In the few days since the Supreme Court declined to review the decision of the 10th Circuit Court that Utah’s same-sex marriage ban was unconstitutional, there has been a great deal of talk about how Kansas’s own same-sex marriage ban must fall, since we are under the 10th Circuit’s jurisdiction.

Governor Brownback is, at present, resisting that talk. Referencing the popular vote back in 2005 which defined marriage in the Kansas state constitution so as to exclude gay and lesbian couples, the governor said: “I don't know how much more you can bolster it than to have a vote of the people to put in the constitution that marriage is the union of a man and a woman.”

Well, I’m here to help. I know of three strategies that could bolster Brownback’s insistence on standing metaphorically before county clerks’ offices across the state, refusing entrance to both the interpretations of the federal judiciary, and the gay and lesbians citizens of Kansas who hope their way of life, or at least the domestic side of it, has finally achieved some legal recognition.

1) Invoke the 10th Amendment! This would be the constitutionalist/Tea Party approach. The 10th amendment to the U.S. Constitution reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Many legal scholars argue that, with a few notable exceptions, this amendment is mostly a dead letter, especially ever since the American people supported legislation during the Civil Rights movement that empowered the national government to stop individual states from discriminating in education, public accommodations, housing, voting, and–yes–marriage.

Still, that doesn’t mean it can’t be tried. The preferred response by many to the Affordable Care Act–namely, to call for the creation of a multi-state “health care compact” that would operate without federal involvement–already borders on embracing state sovereignty, so it would be interesting to see the Brownback administration pursue that option fully.

2) Abolish marriage! This would be the libertarian approach. Complete the separation of church and state by ending all legal marriage entanglements with all religious bodies in Kansas. If churches want to offer something which they call “marriage” to their followers, they can do so, entirely on their own terms, without any state recognition whatsoever. On the other side of things, if the national or state constitution requires (or if individual legislatures decide) that some provision be made for recognizing any number of different types of couples for tax purposes or reasons of inheritance, custody, etc., the secretary of state’s office can issue a bunch of unceremonious licenses to that effect.

Given the rising influence of libertarian-inclined conservatives, I imagine this approach might result some surprising left-right alliances being formed here in Kansas. But unfortunately for the governor, embracing it would also probably scandalize the social conservatives upon which his re-election probably depends.

3) Secede from the union! This would be the ultimate combination of both the above two approaches. You would shrink the federal government’s influence–and thus the reach of the federal judiciary’s constitutional interpretations--by escaping it entirely, and follow through on the principle of state sovereignty be declaring independence–thus allowing Kansas to define citizenship and marriage as it sees fit. Texas would be so jealous of us getting there first.

I suppose I should note that, as a (late but now firm) supporter of the recognition of same-sex marriages, I am personally opposed to pursuing any of the above responses to the legal actions surely waiting in the wake of the 10th Circuit’s decision--and, more importantly, in the wake of United States v. Windsor. Also, I strongly doubt any of them would be successful anyway. But as a political scientist who enjoys a good argument, and--more importantly--as someone who overall thinks our increasing dysfunctional democratic system needs a serious constitutional challenge, I say: bring them on.

Contentious Christmas Arguments in Utah, and Elsewhere

Mathew Parke expresses his hopes for his people (and mine) in Utah, in the wake of last week's same-sex marriage ruling:

[T]he thing that strikes me as hopeful about the last few days is that everyone, for or against state-sanctioned gay marriage, is talking about it. Because so many people in Utah are related and connected by our Mormon heritage, and because we go to church every Sunday and sit together for three hours, and because this week is Christmas and families are gathering anyway, we are, for or against, talking about gay marriage together. The last few days have felt exactly like a family argument where feelings run high but you know your love for one another will remain no matter how crazy you make each other.

The place gay people should have in our society and the legal rights accorded them are among the great issues of our time. It is good for the populace to have a conversation about them. It is even better when the conversation is had not just in magazines and newspapers or among like-minded people, but among a divided citizenry, preferably face to face in churches and family rooms where you are reminded of the ties that bind. Mormonism’s unique demography and social structure with an assist from the calendar have resulted in a largely civil discourse on an important civic matter. The last few days have made me hopeful that wherever we end up as a church, we will arrive as a people.”

I am, as usual, of course, of at least two minds about this statement. On the one hand, I see it as overly optimistic, maybe even to the point of outright naiveté. Sure, people in the state of Utah are talking about “the place gay people should have in our society and the legal rights accorded to them”--but very likely not because the large majority of them actually wanted to talk about such. Rather, they are talking about it because one kind of conversation about such matters--the presumably normative and preferred, more democratic and discursive one--has been denied to them through judicial action. In other words, to whatever extent the conversations that the author mentions are actually taking place among people who wouldn’t be having such conversations anyway in the first place, they are taking place primarily because the issue has been forced upon them by an outright restructuring of their environment, or at least a--thus far--relatively successful judicial imposition of such a restructuring. The kind of arguments which such presumption generates have, historically, been, shall we say, less than ideal (consider the wonderfully productive conversations about race which took place in the American South following the Supreme Court’s desegregation decision).

But then, on the other hand, I can see some good reasons to qualify my above concerns. First, obviously, if you accept that there is a least a possibility that Judge Shelby’s reasoning is correct in claiming that there is a constitutional right to marriage for all citizens, and if you have at least some streak of liberal egalitarianism in you (as I do), then the democratic losses have to at least be balanced against the rights-based gains with follow this decision. Regarding Brown v. Board of Education, for all the understandable--not defensible, but still, yes, understandable--uproar it caused in southern communities, I think the answer is a no-brainer. I wouldn’t say the same about this decision, but I’m not willing to agree with that good-hearted ideological moron in the Utah state legislature who spoke of Judge Shelby’s “massacre” of local autonomy and religious freedom either.

Second, maybe the above comparison isn’t even fair, for reasons of the context involved. After all, this isn’t a widespread intrusion into the sorts of preferences which guided the decisions of millions of families in a thousand school districts in a dozen different states; this is a decision about marriage that cannot be rationally seen as significantly and directly affecting the lives of those who oppose it, but which also is present through family connections in a way that overwhelmingly wasn’t the case in the American South. Moreover, this was a decision which governs a single state, one wherein a majority of the populations shares the same religious faith. That suggests that there is a far greater likelihood that there really will be shared conversations that gets ideas exchanged in ways that opens minds and engenders sympathy.

Third, and perhaps most importantly: maybe issues like this actually never get talked about unless it they forced upon the people in question. On a particular philosophical level, one could make a strong argument, I think, to the effect that the most democratic thing that a minority can do is to try to leverage whatever tools available to them--judicial intervention, public protest, boycotts, revolutionary violence, whatever--in order to jump-start conversations which wouldn’t happen otherwise. The glory of a liberal and law-abiding democratic society, from a communitarian point of view, is not that issues never get forced beyond the reach of democratic conversations--because that may always happen anyway--but that out of the above options for minorities, the first three are available and productive enough to make the last (hopefully) unnecessary. And the good news is that, however they start, conversations, once they begin, are civically empowering and expanding; they bring into public spaces views and agents that previously couldn’t be fully seen or heard (for most Utahns, for example, until last Friday, the quality of same-sex marriages was a matter which they had no reason to expect to ever observe or learn about first-hand; but now they can). And when you’re talking about basic civic respect, more conversations is probably always a good thing, especially over the long haul. I mean, for all the bitterness and the (I think) often terrible electoral side-effects partly caused by the Supreme Court’s and Congress’s actions regarding school segregation, etc., and even acknowledging all the cultural and social virtues which have arguably been lost through the nationalizing of the South’s locality (though I would argue that was mostly due to global capitalism and the TVA, not desegregation), only an absolute Confederacy/Lost Cause dead-ender who hasn’t read a book written in the past 50 years could actually believe that racial relations haven't gotten better in the South, significantly because people have been forced to talk with each other.

So what do I say to Mathew Parke? I hope he’s right--in fact, the spirit of the season, I truly wish it. And maybe, for all the reasons mentioned in my last paragraph, it's even reasonable to wish for such a conversational development. But please don't fault me for lacking faith if I don't hold my breath.

Some Random Thoughts on the Utah Same-Sex Marriage Ruling

So Robert Shelby, a federal district court judge in Utah, handed down Kitchen v. Herbert yesterday afternoon, declaring Utah's refusal to permit or recognize same-sex marriages unconstitutional. Following on last week's decision which decriminalized polygamous cohabitation in Utah, it makes the state that I lived in for five years, and which I have old and deep family and religious connections to, a somewhat happening place, at least when it comes to the law, marriage, and sex. But unlike Brown v. Buhman, which prompted some rather wide-ranging speculations on my part, this decision got me thinking in a much more personal manner. To wit:

1) Utah's constitutional ban on same-sex marriage--"Amendment 3"--reads very much like "Constitutional Amendment 3" which was passed by referendum in Arkansas in 2004 (the same year Utah's Amendment 3 was passed, not coincidentally) by 75% of voters, one of whom was me. I wouldn't have voted for that amendment today, and I'm happy to see Utah's constitutional amendment rebuked by a district court judge. So what has changed in the past 10 years?

2) Primarily, I've changed my mind about same-sex marriage. I've explained why I changed my mind before; to sum up my reasoning again as briefly as possible, let's just say that, over time, I came to realize that the only reasons that really seemed persuasive to me regarding the privileging of traditional heterosexual marriage--given that I simply couldn't accept the notion that homosexuality was a divine error or a crime against our natural teleology, though I don't find either of those (I think incorrect) claims necessarily irrational--were inextricably tied up with accepting a model of the sexual roles and relationships with marriage which depended upon a certain inequality in its intergenerationality. And once I realized that my construct in favor legally favoring heterosexual unions over homosexual ones was rooted in an acceptance of sexual inegalitarianism, I couldn't stick with it--because I couldn't stand the idea that was arguing for a position which presumed a role for my daughters which, despite all the talk of complementarianism which suffuses the sexually enlightened socially conservative position, put obligations upon them in a manner and to a degree unlike it could ever put upon men.

3) So for that reason I wouldn't vote for Arkansas's same-sex marriage ban today, nor Utah's--nor Kansas's Amendment 1, if it'll ever come up for a vote again. But of course, the change in Utah (which will last until the state appeals to the circuit court, which I'm sure it may do as soon as the end of the day today. And, as I've written before, I'm a fan enough of democracy and suspicious enough of judicial review to dislike the law being determined--or overturned--by judges, rather than by legislators or the people, including a law regarding the rights of gays and lesbians to marry each other. Or at least, I have been such a fan. Now, in the wake of this decision, I wonder if my principles are changing.

4) I'm not abandoning my hope--which is a vain one, I know, but as a democratic communitarian in a liberal juridical legal one, contrary hopes are par for the course--that broad religious exceptions and exemption will be built into whatever norms emerge as the same-sex marriage revolutions moves slowly but surely through our country, ones that will provide as much room as possible not merely for the right of religious dissent in an individual sense, but for the civic value of treating collective religious expressions as deserving of respectable, rational consideration. However, saying that confronts one with various constitutional trumps. If, as Judge Shelby argues, in the wake of both Lawrence v. Texas and U.S. v. Windsor an "individual’s right to marry as an essential part of the right to liberty" cannot be denied simply because of the "moral disapprobation of homosexual conduct," then same-sex marriage is a fundamental constitutional right. Do I really want to say otherwise?

5) In an earlier post of mine, I wrote that "I'm unconvinced that the restriction of marriage to heterosexuals constitutes a grievous constitutional harm put in place solely with the aim of burdening a specific, disliked minority population." On the one hand, if I stand by that position, and continue to insist that this push for marriage equality has to happen through democratic politics, and not through defining how the people may govern themselves via the imposition of judicial may-not-cross lines, then I can tell myself that I am continuing to invite me and my fellow citizens to struggle discursively over the real moral meaning of marriage, and thus save myself from the taint of Planned Parenthood v. Casey's banal and nonsensical invocation of the "right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life" (which Judge Shelby does himself no favors by citing). But on the other hand--well, on the other hand, there's my friend Christian's fellow gays and lesbians, people like Michael Ferguson and Seth Anderson, the couple celebrating in the photo above, all of whom, in an important civic sense, weren't allowed to partake in that aforementioned discursive process regarding the moral meaning of marriage because their access to the institution was eliminated by prior (and, practically speaking in today's political environment, mostly unreachable for discussion) judgments, thus robbing the larger community of the example and education which their experience as a couple could provide. And that, of course, is just one slice of the larger civic pie--the argument could also be made that, through the interventionary judicial expansion of the range and number of those who can contribute to various civic goods, such as those provided by stable married gay couples, society benefits far beyond simply the contribution to a more diverse and rich discursivity. I think about all that, and I wonder: maybe my resistance to those tools which often generally (if indirectly) tend to support an empty individualism in American society (the hypothetical solo sexual dissenter, determined to exercise her right to marry or not marry however she pleases, for whatever reason she pleases) can go too far, and thus take me away from noticing that, whatever the costs of judicial fiats (and I believe they are many!), they don't stop conversations from continuing. And maybe even continuing in a more rich and rewarding way than before.

6) In the end, I'm undecided. Ideally, I still would rather see democratic debate and compromise do its slow but satisfying work than see political fights turn into constitutional ones. But I don't think I could write what I did before, at least not as confidently; even if I don't particularly like the idea of marriage being defined solely as (in Shelby's words) "the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person share s an intimate and sustaining emotional bond," I have to recognize that as an appropriately interpersonal description....and since, as I said above, I care enough about equality to accept that interpersonal thinking is better, when it comes to marriage anyway, than intergenerationality, I suppose I ought to focus on what civic resources such a definition makes available to us. And if those resources come our way through a constitutional edict...well, even if it's not my preference, that doesn't mean I'll support an appeal!

In the meantime, to Christian and other Utah friends: hurrah!

Religion, Gays, and Minority Rights in the American Community

This past weekend I got into a discussion on Facebook with some friends of mine over Damon Linker's latest (and, I think, very smart) opinion piece. Damon makes the argument that, given that the movement towards the broad legalization and public acceptance of same-sex marriage in America is probably inevitable--which he calls an "astonishing cultural and political sea change, one that looks likely to expand significantly the frontiers of liberty and equality in the United States"--specific legal provisions need to made to make certain that religious traditionalists (which, in regards to the acceptance of same-sex relationships, basically described my position for years, until I finally realized that I couldn't accept my own arguments and changed my mind) can continue to teach and witness in the way their beliefs obligate them to. When I linked approvingly to his essay, I was challenged: why? What is it about churches and religious organizations that deserve any particular First Amendment protections beyond those already conveyed to individuals who expressed politically unpopular, even bigoted, opinions? In retrospect, I think my responses to that challenge on Facebook were a little confused, so I wanted to write something at greater length here.

That is not to say that the challenges to Damon's piece are entirely clear either, as I'm not sure that Damon is calling for anything beyond a reasonable interpretation of standard First Amendment protections anyway. What he does talk about--"taking concrete, legal steps to guarantee that the religious freedom of traditionalists is recognized and protected....[and] build[ing] on what states such as Connecticut and New Hampshire have already begun to do: include passages or amendments in same-sex-marriage legislation that explicitly define and protect the religious freedom of sexual traditionalists"--sounds to me like making use of principles already at the heart of arguments over the Free Exercise clause of the First Amendment. He is saying that when the coming legal changes to accommodate same-sex marriage (with all its consequences for divorce, child custody, adoption, and more) make their way through all the different institutions of civil society--hospitals, adoption agencies, schools, libraries, etc.--we ought to provide firm exceptions and protections to those whose religious views lead them to condemn and push back against such arrangements. In other words, he calls us to follow the line charted by such Supreme Court decisions as Sherbert v. Verner, Wisconsin v. Yoder, or Presiding Bishop v. Amos, all of which suggest that any regulation or lawsuit which aims to invalidate a public action or individual choice taken by a religious citizen or institution demonstrate a "compelling interest" in favor of doing so, or else be rejected as an unconstitutional violation of that person or organization's First Amendment rights. This is contrast to the line of thought promulgated by Employment Division v. Smith (or, for that matter, going way, way back, Reynolds v. United States) which takes a much less accommodating view of religious difference. It's possible that those who were criticizing Damon (and me for agreeing with him) prefer the Reynolds route when it comes to thinking about rights. More likely, I suspect, they are simply reluctant to take seriously any demand for exceptions on behalf of conservative churches and believers, since, in their view, those people and institutions have long exercised majority power in this country, and don't have anything to worry about any time soon, so why toss them a bone?

In this matter, they surely have a point. I'm fairly convinced that most of the claims on behalf of "religious liberty" that have been made by traditionalists and conservatives in regards to same-sex marriage over the past fifteen years are mostly based on paranoid nonsense. Damon himself acknowledges this, in a backhanded way; when he talks about the "restriction" of religious liberty, he's obliged to talk about how various religious believers and organizations "predict" or "anticipate" or "envision" possible future restrictions on or interference with their beliefs. Yes, it's possible that religious universities might be sued for refusing to allow same-sex couples to move into their married-only couples' housing, it's conceivable that ministers might have their licenses taken away for declining to perform weddings for same-sex couples, etc.--but nothing like that is remotely on the horizon. At least, not in the United States, that is. One does have to search and do some cherry-picking, but still, it's not all that difficult to find examples of all of the above, and more, in societies that don't have as robust a religious culture and history as the United States--and while the isolated instance here and there shouldn't give people license to spout off the tiresomely too-frequent nonsense about Christianity being a "persecuted religion," it doesn't hurt to be overly cautious, I think.

But that, in some ways, gets us to the real heart of the question: why be overly cautious? Everything we know about homosexuality suggests that it will never characterize more than just a very small percentage of the population, so gays and lesbians are always going to be a minority. And shouldn't minorities be the ones who enjoy the benefits of the protections provided by a liberal society, especially minorities who have often suffered great psychological harm over the decades (centuries!) at the hands of these traditionalist views? Won't being overly cautious simply stand in the way of allowing needed reforms in how homosexuals are treated in our society to proceed as they presumably should?

If we stick with thinking about rights solely in terms of power and influence here--that is, who holds a majority position in our democratic political culture, and who doesn't--than this might seem to be an easy question. But it isn't, not really. Jonathan Rauch wrote a very thoughtful essay (Damon cites it in his piece) which takes seriously the idea that, should the acceptance of same-sex relationships becomes normative and reflected in law, than the small minority of gays and lesbians in America might find themselves, with their allies, in a majority position, and hence the position of power will reverse; traditionalist opponents of same-sex marriage will be the one's claiming the need for minority protection:

A lot of gay people have trouble taking this narrative seriously, partly because it sounds so paranoid and nutty—as when Tony Perkins, the president of the Family Research Council, recently said, “If this case [overruling California’s ban on gay marriage] stands, we’ll have gone, in one generation, from 1962, when the Bible was banned in public schools, to religious beliefs being banned in America.” It would be a false comfort, though, to suppose that the gays-as-oppressors narrative can’t and won’t take root among moderates and thoughtful, mainstream conservatives—people like Michael Gerson and Peter Wehner, former Bush administration officials, who write, “If [gay] marriage is deemed to be a civil right—and if opponents are therefore deemed to be the equivalent of modern-day segregationists—churches may eventually be compelled to act in a way that complies with the spirit and letter of ‘anti-discrimination’ law rather than with orthodox Christian teaching.” Stated that way, the claim happens to be true....In a messy world where rights often collide, we can’t avoid arguing about where legitimate dissent ends and intolerable discrimination begins. What we can do is avoid a trap the other side has set for us. Incidents of rage against “haters,” verbal abuse of opponents, boycotts of small-business owners, absolutist enforcement of antidiscrimination laws: Those and other “zero-tolerance” tactics play into the “homosexual bullies” narrative, which is why our adversaries publicize them so energetically. The other side, in short, is counting on us to hand them the victimhood weapon. Our task is to deny it to them.

This is essentially where Damon stands; he wants to keep the various institutions of our civil society functioning on a truly neutral basis, which means providing a means for those who profoundly disagree with the way those institutions are changing to nonetheless still feel welcome (or, at least, tolerated) in their use of them. For example, he suggests, the urge to "educate traditionalists away from their deeply held religious convictions" would only result in "a mass exodus of religious traditionalists from the public schools," and hence is something to avoid. Similarly, while he allows that religious institutions that provide public services must be obliged to conform to the standards which civil society accepts as normative and which may be enforced by law, those laws themselves must be written in such a ways as to "unambiguously protect the right of traditionalists to preach their beliefs about the evils of homosexuality and to pass those beliefs on to their children." All his fits very well into the same strongly pluralistic Sherbert model of liberalism which Rauch clearly accepts as well.

The reasons why I, despite liking the conclusions which Damon and Rauch come to, feel a need to clarify my own support for their position, though, is that I don't really accept that model of liberalism. Oh, it's definitely one way--and a good way at that--to function in a pluralistic society, but I'm not sure it's the best way to achieve the goods it results in, especially considering its costs. One of those costs is that if you really believe, in the end, that rights are fundamentally about "defending the rights of dissenters"--which is how Damon ends his piece--then you're locking yourself into a constant majority-minority contest, one that will actually make the sort of consensus by which any practice or belief can become normative in the first place that much more difficult. It's a kind of individualism, in other words, and while particular individuals--and certainly not especially religious ones!--definitely don't at have the legal ability to operate utterly without regard to their surrounding communities, it is the case that this sort of thinking robs communities of some of the basic tools that, within the context of basic liberal freedoms, ought to be available to them. In other words, yes, I believe that churches need strong First Amendment protections, but if you do it solely around a Millian fetishizing of "minority" or "dissident" expressions, the result will be Supreme Court decisions like Snyder v. Phelps (which I deeply disagreed with) wherein legitimate questions about the harm or even the substantive rationality of various outrageous claims are free from any sort of private or political judgment. I recognize that in saying this I could be suggesting that the doors need to stay open for tort actions or local regulations that would target exactly the sort of conservative believers and organizations which I just agreed with Damon need robust First Amendment protections. But I do think they deserve protections--and I think that not because I think civil society is necessarily well served by making certain that every dissident expression is fully protected in every possible case, but because I think these particular expressions (the opposition to same-sex marriage primarily, but also the whole traditionalist religious morality which condemns sexual activity outside of wedlock) are rational and deserves respect, even if I (like lots of people!) no longer agree with elements of that argument any longer. As that position is not, to quote myself, "obviously silly or just a cover for raw distaste and prejudice," even in parts of it are wrong, it ought to be guaranteed recognition--the way that, I think, the religious expression of the Westboro Baptist Church, that God is killing American soldiers in order to punish America for tolerating homosexuality, doesn't deserve respect.

Do I really expect our liberal judicial order to start extending different levels of legal protection to distinct religious expressions on the basis of how rational we democratically decide said expressions to be? Not really, and certainly not formally (though one might argue that we informally do that anyway, through the subtle perseverance of a vaguely Protestant Christian civil religion in American life). And, lacking the ability to persuasively articulate that kind of communitarian judgment regarding religious expressions in America, I'll go along with Millian pluralism and Damon's valuable warning against allowing this slow-but-all-but-certain sea-change in the American understanding of marriage and family life to push traditionalist believers so quickly and self-justifyingly into the crouch of victimhood. I've changed my mind about same-sex marriage; I'm far from the first to do so, but I'm also quite certain I'm far from the last. As this process continues, as reluctant as I am to admit it, the courts can't avoid getting involved and laying down some precedents, especially given the specific case history here (David Watkins and several commenters on the post he put up responding to me have convinced me of that much). Those will precedents will invariably--and perhaps rightly--narrow the allowable window for dissent. But I hope that, at the least, whether it's done in the name of allowing for continued debate over the rationality of different religious claims, or just for the sake of making sure the new traditionalist minority enjoys their full First Amendment rights, the Supreme Court will allow us to keep that window open as much as we legally can.

Same-Sex Marriage in the Courts (of Public Opinion, and Otherwise)

Yesterday, the British House of Commons voted 400 to 175 in support of a bill which will legalize same-sex marriages in Great Britain. I'm happy--for the outcome, yes (which I've changed my mind about), but more importantly for the way the outcome came about. Years of protest and agitation, days and weeks and months of discussion, hours of parliamentary debate, and then, finally, a vote. That's the better way.

I'm put in mind of this belief of mine as my church has once again involved itself in the continuing litigation over same-sex marriage in the United States. (I'm among the many Mormons who kind of hoped that some recent developments indicated that our church was willing to let the legacy of the Proposition 8 fight of 2008 fade away, but apparently we're not quite there yet.) This litigation--both sides of it--annoys me. Granted, the history of votes regarding same-sex marriage in the U.S.--whether in the form of popular referendums or legislative action--has basically been a story of many, many losses over the past decade and a half, followed by, over the past couple of years, a rising number of wins, so presumably I ought be happy that with courts making decisions about rights and taking such out of the hands of fickle voters. But the opposite is the case; the uneven record of voting on this issue isn't particularly troubling to me at all--given that I've been through a long patch of unevenness myself, there isn't anything perplexing about realizing that so many others are working their way through a similar reconsideration. No, what I do find frustrating--especially in comparison with how this matter was ultimately, and wisely, handled in Great Britain--is the way democratic activity in this country is so often reduced to judicial claims and counter-claims, taking the issue away from the courts of public opinion and giving it to other, less democratic courts. As things stand now, come the end of March, the U.S. Supreme Court will rule definitively (maybe!) on the constitutionality of both state and national efforts to legalize or deny legal recognition to same-sex couples. I suppose it would be right to say I hope they rule in favor of the legality of such, given my changed opinions on the matter--but also given that such a decision would take the form of a legal mandate which will almost certainly run roughshod over the laws adopted by dozens of states, all of which have the support of millions of citizens, I can't say I'm looking forward to it.

If I now believe that same-sex marriage should be recognized as a legally defensible and positive civic good, which should I care about those whose opinions would be found constitutionally lacking by a decision which I support? Would I have cared about the consequences of Brown v. Board of Education for racists, for example? Well, my answer to the latter is "no"--but my answer to the former is that I just quite don't believe that opponents of same-sex marriage are necessarily operating from the same kind of irrational animus which many of those who were scandalized by the end of segregation presumably were. It's quite easy to position oneself on the probably winning (and, again, I think right) side of history here, and say that the passage of time will prove that same-sex marriage opponents are ultimately cut from the same bigoted cloth, and I can't deny that might, decades hence, turn out to be the case. But for now, as one who prefers the messy imbalances of democracy to the supposedly clear (but for all that usually arbitrary) impositions of the law, and for whom the past three years have mostly just provided confirmation of my many doubts about trusting in the judicial branch), as well as one who not too long ago was persuaded by a certain argument against same-sex marriages, I just can't see in the supporters of Proposition 8 and the Defense of Marriage Act and the opponents of what the House of Commons just voted for something so obviously out of line with our country's evolving political ideas as to deserve the judicial squashing which Boies and Olson (and perhaps President Obama too) clearly think it deserves.

After all, as much mockery as the idea has received from one side of the divide, the claim which my church's lawyers have signed on to--that advocates of traditional heterosexual marriage and supporters of same-sex marriage have in mind visions of marriage which are in "deep tension" with one another, "one inherently intergenerational, the other primarily interpersonal; one focused on children's and society's needs, the other on the desires of the couple"--is not, I think, obviously silly or just a cover for raw distaste and prejudice. It is, on the contrary, entirely plausible (if not, to me, any longer convincing) to argue that the physical differences between men and women, and their reproductive potential, make it incumbent upon society to legally ratify such relationships in a socially beneficial way that homosexual couplings, no matter how loving or civic-minded, are biologically capable of ever being. Moreover, it is not obviously ludicrous to me to note that, given the widespread support for numerous statues in several states providing near marriage-identical forms of civil protection and social validation to gays and lesbians, the argument about the harms of Proposition 8 are probably not quite the same as those 14th-Amendment-centered harms which activated judicial interventions into the political deliberations of the states in the cases of, for example, Romer v. Evans or Loving v. Virginia. And finally, it does not strike me as obviously nonsensical to suggest that a society which truly takes the principle of equal respect seriously should reject the easy solution of "sameness" offered by inviting homosexual couples--who arguably will have a moral and social and sexual teleology in their relationships quite different from those of heterosexuals--into a marriage institution which was designed for people whose needs are distinct from theirs. And when this last argument concludes with a call for churches and other religious institutions to accept the Christian duty to love gays the same as straights, and work out institutions which will serve their teleology as well as heterosexual marriage has served the rest of the population, I think even the most dismissive critics ought to at least acknowledge the decency of their intentions.

All this is to simply say that these are beliefs--just like, I think, most beliefs--that deserve to be taken seriously enough to allow them to be argued out in public, and for the courts of public opinion to respond to them as they will--whether in support or in opposition. This isn't an argument that every democratic majority everywhere ought to have its way all the time, but just a wish that people were more willing to accept the (when properly limited within a reasonable understanding of basic liberal rights) wins and losses of democratic life, and how the lives which get worked out democratically will differ from community to community, and from era to era. Minds do change; they change all the time. For me--to focus just on the first claim above--the accusation that accepting same-sex marriage meant accepting as normative for purposes of social recognition a genderless choice-driven individuality ran aground on my ultimate unwillingness to fully sign on to the sexual inegalitarianism which such an accusation of individuality presumes. Obviously Melissa and I are raising daughters, not sons, and that difference matters. But I couldn't continue to believe, as we taught our daughters and encouraged them to consider themselves equal to both boys and men in the face of the pornographic misogyny which powers so much of the capitalist marketplace which surrounds them, that--to use the terms quoted from the brief above--community-preserving intergenerationality depends on impressing upon them their particular role within a companionate, heterosexual marriage, when it was obvious that such doesn't depend equally upon the men (something especially easy to challenge in world which has been transformed by technologies like the birth control pill or in vitro fertilization, to say nothing of the unfortunate--but probably inevitable--consequences of the no-fault divorce revolution). For better and for worse (yes, it's both) ours is a world more interpersonal than otherwise, and I saw that it was possible to argue against rampant individualism in a way which expanded the circle of community--by, among other things, making room for homosexual individuals in the historical practice of monogamous, companionate marriage--rather than holding tightly to a model of an intergenerational thing which had long since already been changed.

(There is, of course, a Mormon angle to all this for me as well; my church has few rivals in its cult of motherhood and its emphasis upon the special role of women in passing the faith along to the next generation. But that, of course, is something which need not be aligned with the civic sphere. Do I think it legitimate for Mormon majorities in their communities to push for such an alignment? Yes, I kind of do, though again in light of basic liberal guarantees, which itself is something which warrants continuing democratic contestation. I will say, though, that I strongly disagree with those who present such a push as something mandated by the logic of Mormon doctrine--that our (non-canonized!, I shout in vain) teachings about the eternity of gender and our (entirely speculative, I similarly grouse) claims for the existence of an exclusively female companionate deity alongside God make it incumbent upon believers to vigorously resist any attempt to suggest that such supposedly divinely sanctioned institutions as heterosexual marriage might accommodate other forms of human existence. The doctrinal grounds for justifying that kind of narrowly conceived--and inevitably party-aligned--movement would make a mockery of our historical political theology, I think.)

What about the other two claims mentioned above? I remain pretty much in agreement with the second: despite the arguments of many, I'm still unconvinced that the restriction of marriage to heterosexuals constitutes a grievous constitutional harm put in place solely with the aim of burdening a specific, disliked minority population. (That does not deny that fact that harms are a reality here--it only denies that the actually existing harms to homosexual individuals is great enough to demand further empowering the judiciary by handing over to them yet one more of our contentious disputes for resolution.) As for the third, well, that argument calls for exactly the sort of thing which, over four years ago, I thought was the best possible solution--and I'd like to be able to believe that we could wean ourselves away from the false and individualistic reading of "equality" that substitutes the idea of the full recognition of difference with legal identicalness. But I don't see ourselves ever being about to manage such a weaning, because of the legacy of a particular strain of liberalism in this country. And speaking idealistically of what we think we ought to be able to do is no good reason to not do something else which, even it does partake of that particular reading of equality, can extend some real interpersonal richness to our social lives as well. And same-sex marriage will do that.

In the meantime, as we get to wait for the Supreme Court to, sometime this summer, either strike down or legitimize same-sex marriage bans, or perhaps to simply punt the whole issue back to the states, where the rigamarole will begin again, Great Britain will get on with what governments are supposed to do--respond to pressing issues by crafting solutions. The House of Lords may delay this bill's route to becoming law, and given the number of Conservative MPs who deserted Prime Minister David Cameron on this vote, maybe there will be major political consequences, even new elections called early. In which case their own rigamarole will continue: but at least the citizens in that country will be able to say that they, however indirectly, were actually a part of whatever final compromise eventually emerges from Parliament, whereas in our case, for all our claims of freedom, we'll really only be able to have a decisive say if the Supreme Court decides we can have one. Frankly, I think same-sex marriage, which I support, deserves a better court than that.