IGF CultureWatch

I am proud to be a signatory of “Freedom to Marry, Freedom to Dissent.” There is a petition where others can join us, though obviously it’s totally cool if you disagree.

A friend told me he agreed with the full statement, but pointedly asked, “What purpose does this serve, exactly.” That’s a great question.

I, at least, was concerned, not just with the resignation of Brendan Eich, but the broader impulse among some of our supporters to take victory too far. The extreme, quoted in the statement, is the writer who just wishes everyone who opposes equal marriage rights would just shut up.

There are times when I understand the impulse, but it’s something to be resisted. A liberal society does not enforce conformity of opinion, and it should not — either through the law, or even through majorities — punish those whose opinion is deemed wrong.

That is the impulse behind the pressure on Eich — that he had to pay the price for his donation to Prop. 8. Under California law, it’s not illegal to pressure your CEO to quit over political reasons, or much of anything else. And I acknowledge, as several of Mozilla’s board members did, that Eich’s donation (and some other reported activities) made him a difficult fit.

But he is not the only one who has been subject to a growing sense, not of success among our supporters, but of something close to vengeance against those who oppose equality. We are prevailing in the political debate, and there is a long way to go. We need to let the other side fully air their arguments, even the bad or intolerant ones. We need to have the strength of character to accept even hateful insults, particularly those of us who are homosexual. We will never eradicate arguments and opinions we think are absurd or offensive, nor can we silence them.

That’s the price of living in a diverse society — actual diversity. That’s the point I think is worth emphasizing, and it’s why I signed.

J. Bryan Lowder continues his very strong defense of the attacks on Mozilla’s Brendan Eich, and anyone else who publicly supports laws that exclude same-sex couples from marriage.  Lowder seems to accept that he will now be known as the person who wishes equality opponents would “simply shut up.”

He embarrassingly overargues his case, complaining that the trauma of having grown up homosexual in an anti-gay world justifies a little gloating about our still-emerging victory in the culture.  Even equality supporters like Conor Friedersdorf whose treachery is a willingness to tolerate anti-equality advocates  misunderstand the agony we endure, since we have been “…sexually and emotionally traumatized since childhood.”

But there is much more at stake here than the melodramatic ravings same-sex marriage seems to inspire on both sides.

I think Lowder would agree that it is bad when government uses its power to take sides in a public debate.  It is abhorrent that Russia and Uganda have declared speech in favor of homosexual liberty off-limits.  There is no proud history of government efforts to police the speech of citizens.  That is true whether you think the government is enforcing the right side of the debate or not.

Religions, too, have sinned savagely throughout history in prosecuting heresy.

The question today is whether majorities can fare any better in crusading against propaganda we do not like, or civil heresy.  I think not.

The First Amendment’s protection of speech applies to the government, but its wisdom goes deeper. In any culture where individual liberty is central, opinion cannot be chaperoned.  People will believe what they believe.

Should we and our allies try to do to our opponents what they so successfully did to us for centuries: silence them?  Punish them? I think the logic of the First Amendment counsels against that.

An opinion suppressed is an opinion inflamed.  As a matter of politics, it is best to allow the expression of opinions, disagreeable and even terrible ones.  As long as people do not act on their worst opinions (something government can appropriately respond to), the airing of grievances is healthy.

Which is not to say it is comfortable.  Lowder is offended that, despite majority support for our equality, the lives of lesbians and gay men are still subject to extraordinary, invasive scrutiny; and that is offensive.  But more offensive is the self-righteousness that would not just argue against offensiveness, but punish its expression.  It is unfortunate that we have to live in the same country and community with discourteous and boorish people, but the alternative of banishment or enforced correction of their error is worse.

Maybe the closet isn’t such a bad thing — if only you can get the right people into one.

That is the premise of the crusade against Brendan Eich.  Maybe our heterosexual allies who have been so vehement on our behalf can be forgiven for not appreciating the natural consequences of this movement; but if gays can’t oppose what is happening, there is no meaningful definition of “irony” left.

Californians in particular should take heed.  Andrew Sullivan helpfully cites our Labor Code section 1102, which explicitly prohibits discriminating against employees based on their political beliefs and actions.  But that’s just the start.

That statute, along with its companion section 1101 served as the foundation for launching the public part of the gay rights movement in this state.  In a 1979 case called Gay Law Students Ass’n v. PT&T, our Supreme Court ruled for the first time that lesbians and gay men could not be discriminated against by employers based on their public activities in support of gay equality.  The case did not say they can’t be discriminated against for being homosexual — it was strictly based on public political actions.

Here is the court’s reasoning:

A principal barrier to homosexual equality is the common feeling that homosexuality is an affliction which the homosexual worker must conceal from his employer and his fellow workers. Consequently one important aspect of the struggle for equal rights is to induce homosexual individuals to “come out of the closet,” acknowledge their sexual preferences, and to associate with others in working for equal rights.

In light of this factor in the movement for homosexual rights, the allegations of plaintiffs’ complaint assume a special significance. Plaintiffs allege that PT&T discriminates against “manifest” homosexuals and against persons who make “an issue of their homosexuality.” The complaint asserts also that PT&T will not hire anyone referred to them by plaintiff Society for Individual Rights, an organization active in promoting the rights of homosexuals to equal employment opportunities. These allegations can reasonably be construed as charging that PT&T discriminates in particular against persons who identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations. So construed, the allegations charge that PT&T has adopted a “policy … tending to control or direct the political activities or affiliations of employees” in violation of section 1101, and has “attempt[ed] to coerce or influence … employees … to … refrain from adopting [a] particular course or line of political … activity” in violation of section 1102.

Eich, of course, is not an employee, so this doesn’t apply to him in particular.  But it is very clear that if he had not publicly supported Prop. 8 so many years ago, he would be CEO of Mozilla today.  And he is not alone in his beliefs.

That’s what the closet feels like, to those of us who have been there.

I don’t think there is much chance of marriage equality failing in California any more due to Eich’s — or anyone else’s — urging.  It’s now even possible to imagine some form of relationship recognition as a federal constitutional right.

But even if there were, trying to enforce silence on one side of a debate is a time-tested malevolence, which gays more than anyone should recognize.  Pretty much all of the civil arguments against equality have failed because they were given the space to be aired against the opposing arguments.  What is there to gain today, except some noxious exhilaration, by trying to silence or punish the true believers?

We had to be silent once.  That’s nothing to wish on anyone.

The paradox of religious freedom and governmental neutrality toward religion is not new; it’s embedded in America’s DNA in the First Amendment, which guarantees the free exercise of religion and prohibits the government from establishing or even endorsing religion.

What is new is the question of whether a business, rather than church or a person, can exercise religion.  Businesses must have a right to communicate with the public, and it seems necessary to me that the First Amendment’s speech protection applies to them — though there are many reasonable questions about how far this protection should extend.

The religion clauses are trickier.  The Establishment Clause requires government not to take sides in religious disputes, but there are some cases that courts, in particular have to decide: When two parents of differing religious beliefs divorce, can a court enforce one parent’s veto of the other’s decision about taking the children to church, or raising them as non-believers?  If there is a dispute between two Jewish business owners over what is kosher, should a court of law be able to decide which one is right?  These are hard questions.

For lesbians and gay men, though, it is the Free Exercise Clause that is most difficult right now.  There is no doubt that individuals must be free to exercise their religion without government interference.  But is selling cakes the exercise of religion?  Is anything a sincere religious believer does the constitutionally protected exercise of religion?  If not, what are the limits?

More broadly, do businesses as businesses have the same kind of First Amendment right to exercise religion as they do to communicate under the Free Speech Clause? There is a particular subjectivity to the Free Exercise Clause.  Under Establishment Clause rules, government must accept any sincere religious belief, even if it isn’t “acceptable, logical, consistent, or comprehensible to others.”

A sensible limit I see built into the Free Exercise Clause is that the exercise of religion, at least as the founders would have understood it, will tend to be with and among other believers.  This is not a strict rule, since many activities of religious believers will take place in the broader world: caring for the sick or poor or elderly, for example.  But in general, the exercise of religion is something more than just any activity motivated by a religious belief.  I cannot drive my car in violation of the speed laws just because I sincerely believe (however illogical it seems) that the speed laws are a violation of the laws of God because biblical authority does not support them.

What we have today is a subset of believers who want to use sincerely held religious beliefs that are at the least controversial among a very large number of non-believers to avoid laws that apply broadly to all businesses.   These laws were passed at the insistence of the gay community, but they are not an unmixed blessing.

As I’ve said before, while I remain doubtful as a constitutional matter that selling cakes and flowers or renting apartments is anything like the exercise of religion the First Amendment intended, I think it is better social policy to allow some business exercise of religion than for government to try to forbid it.

But I think a line can be drawn.  Unlike individuals, businesses are not human beings; they are fictional “persons” for sensible legal and economic reasons.  As such, they are constituted pursuant to legal processes that give the public notice of what they will do and how they will operate.

The almost complete deference that government gives to the personal exercise of religion respects the constitutional mandate prohibiting the government from establishing or favoring any particular religion (or no religion at all).  That deference also respect the fact that people’s religious beliefs are always subjective, and even sometimes contradict their own church’s stance – as the Catholic Church well knows when it comes to same-sex marriage and contraception.  Government has no business interfering with that.

If a business wants to engage in the exercise of religion, this deference to religion’s subjective nature presents unique challenges.  The government cannot inquire into anything but the sincerity of religious beliefs, and that would have to apply to a business’s “beliefs.”

I think that can be managed consistent with the constitution if a business states up front in its incorporation papers (which establish the parameters under which the business will operate) that, among its other rules, it will operate pursuant to certain religious beliefs.

This will give the public notice that certain businesses, while not religious entities themselves, will be exempt from certain laws.  Customers can choose how important, if at all, a religiously motivated business philosophy is to them.  A publicly stated religious purpose will also serve as notice to potential employees that certain benefits (like contraceptive coverage) will not be provided.

It will take time and thought to develop such a policy.  It may apply only to closely held businesses, for example, like bakeries and local florists, though in theory it could apply to larger companies.  Such a rule would be a line that could be drawn in cases like Hobby Lobby v. Sibelius, where non-believing employees would have a clear understanding that certain kinds of contraceptive coverage would not be included in any benefit package.  It could also identify businesses like Chik-Fil-A, if they determine that serving homosexuals is a violation of their religious rights.  In the modern world, this would be a business risk, but it may be one companies ought to be able to take, and accept (or suffer) its consequences.

In addition, it is not immediately clear at what level of generality or specificity the religious statement would need to be drafted.  A statement that the business would observe “Christian” principles would not be very helpful as notice to non-believers, since there are so many versions of Christian teaching and thought.  On the other hand, the number of possible issues a religious business could address is nearly infinite, and notice to the public and other third parties normally requires a certain amount of specificity.

This is a problem inherent in the nature of any exercise of religion that implicates the rights of non-believing third parties.  That, in itself, is a strong argument against this proposal.  But since the religious landlord cases in the 1990s, it is clear that courts seem to accept some business exercise of religion.  If that continues – as seems likely – it will make sense to think more deeply about what it means for businesses to be religious when they are dealing with the public at large.

I have some sympathy for those religious believers (Christians aren’t the only ones) who object to being called bigots and haters.  Damon Linker is not wrong to be put off by the lack of “charity, magnanimity and tolerance” of our own haters.  Some lesbians and gay men are poor winners.

But this might be a good time for those who oppose same-sex marriage in good faith to think a bit more about the enormous change among heterosexuals who now disagree with them.  They, too, grew up in a world where same-sex marriage was unimaginable — and for most of the same religious reasons as Linker, Ross Douthat, Rod Dreher and others continue to articulate.

Andrew Sullivan provides a catalogue of the good reasons some people continue to support what is often called “traditional marriage.”  But even the best intentions don’t always lead to good results.  The disconnect is what leads to skepticism or cynicism about whether opponents are truly acting in good faith or out of something far less noble.

It comes down to a simple question: If homosexuals cannot get legally married, what should they do?

The hard-liners have always said tough luck.  Marry someone of the opposite sex or stay single.  The nicest hard-liners say same-sex couples can live together, but shouldn’t expect any social recognition of the relationship.

In 2014, where same-sex couples are known and accepted, those options are inhumane and literally intolerable.  For most of history, though, these pathetic options were pretty much all there was, and no one needed to inquire much deeper.  But today it is fair to push the rhetoric.  “OK, if you won’t let same-sex couples marry, you’re really content to let same-sex couples live in social and legal limbo?”

True moderates can accept some legal recognition, like domestic partnership or civil unions.  Even the new Pope has suggested that this might be a feasible civil option, or at least an option the church need not object to in the civil realm.

But now that civil marriage itself is not only imaginable but quite real, Marriage-Lite looks less like a compromise and more like a fig leaf.  And it isn’t just lesbians and gay men who say if the civil rules for marriage don’t demand procreation as a prerequisite, why go to all the trouble of maintaining a two-track system?

When Linker, Dreher, Douthat and others complain about how homosexuals are being mean to them, they are leaving out those heterosexuals who have changed their minds.  Part of their discomfort may come from the fact that the questions from fellow heterosexuals are getting harder.  Lesbians and gay men obviously have the lead in the debate, but we wouldn’t be winning if we were all alone.  Blaming us for the change is, itself, a bit of — well, I won’t say bigotry or hatred.  But it isn’t nice.

 

 

I deeply appreciate the discussion in the comments on my last post.  The tangled relationship between anti-discrimination laws and religion is a subject that is worth some real thinking.

Some people are wrestling with how selling a cake got to be a constitutionally (and statutorily) protected “exercise of religion.”  There’s a reason this is confusing.  Religious believers themselves have never really been able to articulate the connection.

I think the problem began back in the 1990s, when religious landlords first began claiming they were exempt from state laws prohibiting marital status discrimination.  In 1996, I represented a heterosexual woman in the first California Supreme Court case to deal with the exemption (Smith v FEHC).  The religious landlady objected to unmarried couples living together, but California law prohibited marital status discrimination in housing.  The landlady’s claim was that by renting her property to people who were obviously sinning (there was no proof of any sexual activity, and she never tried to provide any, but the court accepted the obvious implications), she was “facilitating” their sin.  And in her mind, this was, itself a sin.  So the law was forcing her into participating in the sin her tenants were committing.

This was a novel idea.  Previously, court cases had tended to focus on things that a religion mandated or prohibited (such as working on the sabbath, forced public schooling, etc.).  But in Smith, the landlady’s claim of “facilitating” the sins of others by engaging in commercial activity was neither.  While she provided testimony that one branch of her religion (Presbyterian) thought that facilitating the sins of others was, itself, a sin, another, much larger branch of the same religion disagreed and felt that abiding by general laws like this implicated no moral condemnation.

The problem is that courts can’t go around deciding contested theological questions.  They must exercise an almost complete acceptance of any religious belief, as long as it is sincerely held (which Mrs. Smith’s was).  The U.S. Supreme Court has been very clear about this:  A religious belief “. . . need not be acceptable, logical, consistent, or comprehensible to others in order to merit [free exercise] protection.”

I argued that the protection of the “exercise of religion” ought to be cabined by something.  While courts must defer to religious beliefs, they can examine actions that are in conflict with laws.  Renting apartments would never have been understood by the framers as the kind of exercise of religion they had in mind.

That argument was shot down in less than a paragraph, and that’s probably the right answer.   The problem I saw in the commercial world of religious believers picking and choosing which sins they subjectively felt they were “facilitating” has clearly come to pass.  And there’s little doubt that this will be deployed by individual believers without much theological consistency or precision.  But the role of courts is and should be limited whenever religious issues are being fought over.

There will always be individuals who will distort and mishandle their religion.  But the danger of the government second-guessing religious believers is a far more profound concern.  This will place a burden on lesbians and gay men in some — maybe a lot — of places in the country.  But in the world today, they will not only have options, they will have allies.  This is no small fact.

Julian Sanchez has the best analysis of the new round of religious freedom bills, and helpfully borrows Reason magazine’s description of Arizona’s attempt as a “homophobic stunt,” which is really all the rhetorical kicking it deserves.

Sanchez distinguishes among different kinds of discrimination, and persuasively argues that what African Americans went through in the 1960s is different from what lesbians and gay men are going through today.  There are similarities between these discriminations, but they are not identical.  And the differences require some different thinking about government solutions.

There is one quibble, though, which I think is worth some attention.  After looking at our nation’s legacy of slavery and other laws and practices embodying naked racist assumptions, Sanchez moves on to sexual orientation:

Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism.

This misses something essential.

Laws criminalizing sodomy were virtually universal in America, embedded in our legal structure in ways that manifested – for homosexuals — far outside the criminal realm.  For most of American history, homosexuals could have no identity as a group to lobby for different laws, no ability to form meaningful relationships (much less marriages), no lawful ability even to drink or dance together in a bar.  Few knew there were other homosexuals to even meet, and trying to find out meant the risk of imprisonment.  It was not until the 1960s that gay groups could freely send political magazines to one another through the mail without concern about exposure or prosecution.

Those generations that African Americans came from provided at least the comfort of family and identity that was inaccessible to nearly all homosexuals.  The closet was a refuge, but had its own repercussions.  No ordinary life can be lived entirely in private.  For homosexuals, simply to function day-to-day required some level of denial, and the fabrication of an appearance of heterosexuality.

This is certainly different from the regime of racism in American law and culture.  But in its own way the centrality of inauthenticity was no small psychological disadvantage, and it was borne entirely internally by each isolated person.  Lesbians and gay men spent generations as an invisible population with an invisible burden.  And this lasted well into the present.

With the sodomy laws gone, we may soon be able to retire the closet as well.  Like racism, the homophobia won’t go away, but its practitioners will place themselves on society’s fringes, for whatever satisfaction that provides them.

A critical part of Sanchez’s argument is that this is already where most homophobes are, and he’s not wrong.  Like many of us who are of a certain age, I don’t think the homophobes were prepared for how quickly the world could change around us all.

It did, and if we must still have laws, Sanchez is right that they should take the facts of that world into account.  But we should also understand history as correctly as we can.  Laws originally written in a world that had no open lesbians and gay men can be far more damaging to homosexuals than laws drafted today designed to flaunt what homophobia still exists.

On October 10, 1972, the U.S. Supreme Court issued its first formal thinking on whether same-sex marriage can be prohibited under the constitution.  Two Minnesota students applied for a marriage license in Minneapolis and were denied, and the state supreme court upheld the state’s law.  The couple asked the U.S. Supreme Court for review, and the court waved them away.  Its reasoning in Baker v. Nelson was stated in a single sentence: “The appeal is dismissed for want of a substantial federal question.”

Forty-two years on, courts are deciding that, not only is there a substantial federal question, but that there are several.  Whether it is equal protection for same-sex couples, or a fundamental right to marry that gays, too, can claim, or even discrimination based on gender, courts are clear that there is a question under the constitution about how the law treats the relationships of same-sex couples.  Twelve federal court decisions in the last year alone have addressed this question, and all twelve have ruled that discriminatory marriage laws violate the constitution.

Baker‘s rebuff of an entirely respectable legal theory is still on the books.  Like the court’s casual insult in Bowers v. Hardwick that a constitutional claim to protection against discriminatory criminal laws was “at best, facetious,” the court articulates the prejudices of its time if those prejudices are still common enough to be unrecognizable as belittlement.

That facetious claim later became the law in Lawrence v. Texas, and the substantial federal question the Baker court could not see is now pretty obvious to anyone.  Which is not to say that everyone agrees on what the constitutional answer should be.  But progress, like prejudice, can be hidden in plain sight.  If you realize that a little over forty years ago the highest court in the land could not imagine that gays had a plausible reason to complain about laws that prohibited them from marrying, you can better understand the barriers that this movement has overcome.

 

Walter Olson needs no help in responding to Mona Charen as she does the best she can to pound a heartbeat into polygamy as an argument against same-sex marriage.  But he does leave her an unnecessary opening as she complains that her side is being treated badly sometimes.

Charen is right that there are people and groups who say, sometimes quite openly, that opponents of same-sex marriage are bigots, haters, and worse.  Just because Andrew Sullivan, Jon Rauch, John Corvino, Walter Olson, President Obama, David Boies, Ted Olson, Dick Cheney, Harry Reid, Ileana Ros-Lehtinen, Gary Johnson, Dale Carpenter — you get the idea — and so many others are civil does not mean that opponents of marriage equality are all on the same page.

Name-calling and public insults are an unfortunate part of any public debate, though I have to give it to the Brits for bringing some style to the table, an art we Americans still struggle with.  But Charen seems to be worried about more than that.  As she says, “The anti position requires more courage in 2013 America than the pro position.”

No one can apologize for all the intemperate people who share a particular position, and no one should have to – otherwise the internet and airwaves themselves would be inadequate to fill the need.  Charen shouldn’t have to apologize for the Westboro Baptists folks, or any of the rude and slanderous people who oppose marriage equality, and Walter shouldn’t have to apologize for our sneering and contemptuous supporters.

It is, instead, the middle ground that needs examining.  It is not necessary to call our opponents bigots to recognize that they are now viewed by more and more people as unkind, or thoughtless or even cruel.  It is that cultural change, not just the extreme rhetoric, that I think, people on the right take offense at.

And I think those who oppose same-sex marriage should set aside personal offense for a minute and try to understand why that is.  Chris Christie provides an opportunity.

He has said, like so many before him that his personal view is that marriage is between a man and a woman.  But when he was asked what he would do if one of his children turned out to be gay, he said he would “grab them and hug them and tell them I love them,” but add “that Dad believes that marriage is between one man and one woman.”

If the only point of view you have is that of the parent in this conversation, that might appear sufficient.  But what about the child’s position?   That’s what Christie, and others who resort to this fantasy, leave out.  Discussions along these lines today would not end with the parent’s pronouncement, and it would not only be the gay child who would be bemused if not appalled that Dad thinks Jaye and Ella don’t have any right to get married.  Really?  And, if the issue came up in an election, Dad could be counted on to vote against the rights of his own child.  There’s family harmony.

For those who have honestly never thought about what effects such a parent might have on a child, I can once again recommend Jon Rauch’s e-book.  Fortunately, enough of the world has changed so that most children now can take the moral high ground on their own, and have back-up from plenty of others.  However this family conversation might go, it will usually be much more complicated than the way Christie describes it.

More important, as Charen fears, the broader society can see the emotional emptiness homosexual adolescents would face – have faced – without even the possibility of marriage in their future.  What was once not only thinkable, but the majority view, is now seen as the monstrous sham it always was.

Christie is not a brute.  He has supported his state’s civil union law, which was crafted as a façade of equality.  But after almost 40 years, this strategic image of equality is less necessary.  Americans know what the real thing is, and are willing to stand up for it for their lesbian and gay fellow citizens.

But Americans are also now less willing to be charitable to those who give every appearance of being insensible or even insincere about caring about this most essential relationship of life and how its denial affects loving individuals.  It is not necessary to use distasteful rhetoric; if marriage equality opponents wish to be viewed as humane and decent, they have some burden to explain how their position is (as Jonathan Rauch has said in another context) good for gays, good for straights and good for America.  Absent that, they do look awfully unkind.

A lot has already been written about Joseph Bottum’s essay, “The Things We Share,” and it’s worth the attention it’s received from all sides.  I won’t try to intuit Bottum’s intent, or explicate his reasoning.  The piece speaks for itself, and has a lot to say.

One thread of his thought in particular sticks with me.  He takes time that many people do not to consider the “perceived offense” lesbians and gay men take to the arguments in favor of heterosexual-only marriage, and mentions Bruce Bawer and David Boaz among many who have taken umbrage at things he has written.  The essay was prompted by the deteriorated relationship he had with a gay friend.

Bottum is troubled by this unintended response.  He does not mean to give offense, and I see little reason to doubt that.  He will never be a champion of same-sex marriage, but he doesn’t seem to have a homophobic bone in his body.

So is the offense strictly on us?  Are we being overly sensitive?

I think this question marks the primary disconnect between those who genuinely dislike or fear homosexuality and those who are struggling in good faith with a hard social and moral issue.

And I’d pose the answer as a further question: When it comes to marriage, how could we not take our exclusion personally?  What kind of human beings would we have to be to not experience some level of offense?

You don’t have to have read Jonathan Rauch’s “Denial: My 25 Years Without a Soul” (though you should) to understand how important this is.  Lesbians and gay men are, first of all, human, with all that entails.  Our sexual orientation is fully bound up in our humanity.  When we are treated – or treat ourselves – as if we are heterosexual, one of the most fundamental parts of our entire humanity is distorted, and the corrosive effects compound from that.

If you reduce sex to a biological minimum, then gender is all, and an orientation toward one gender or another is surplussage.  That is the premise upon which our notions of sexual morality have proceeded.  From that foundation, philosophers and theologians have built a structure that assumes a rationale for sex – reproduction – and works backward.  Marriage is not, itself, biological, something we know from observing animals who generally lack our sophisticated rituals and relationships, but have been able to reproduce successfully for all of recorded time.

Animals are not moral creatures, though.  The beneficial effects of biological parents raising their own children are undeniable.  But even the most charitable view of parent-child relationships through history shows that this biological-marital ideal has been erratic and unconstant.  At the very least it has always admitted exceptions.

A morality that does not allow for human inconsistency is no morality at all, it is a command.  The debate over same-sex marriage has often tortured morality into the worst kind of science, where exceptions cannot be tolerated.

This is the moral universe lesbians and gay men find ourselves inhabiting.  Opponents who are the least thoughtful assume that we are heterosexuals gone wrong, are violating a dictate of nature either to be attracted only to members of the opposite sex, or at least to act that way.

Bottum seems to accept that some people truly are homosexual in orientation, a profoundly important position the Catholic Church acknowledges.  And the dilemma he faces is that the only choices offered to us in the current moral map that the church navigates from are ones no heterosexual would find tolerable: a lifetime of chastity, or marriage to someone who holds no sexual attraction.

So what kind of humans would we be if we did not, at a minimum, say that this view of morality is incomplete?  It is a moral vision designed for only one group, assigning homosexuals to a lifetime of immorality by definition, or without any possibility of intimacy, connection, love.  Is this the way morality, or any kind of god, should work?

If we are human at all, of course we would object, even take offense when these are the only options we are offered.  But more to the point, as Americans, our moral universe is also shaped by our nation’s ideals.  The promise of equality is no small part of the things we take for granted – a fact borne out by the strong support of American Catholics who, at a healthy 54%, are among the most accepting of all religious groups of same-sex marriage.

Bottum ultimately accepts that same-sex marriage is succeeding in the public mind (and not just in the U.S.), and worries about the damage the church’s increasingly hostile arguments about civil marriage are doing to its reputation.  That is certainly a matter between him and his church’s leaders.  All I can add, as one of the many who left the church of my birth over exactly this issue, is that I would be less human, and less Catholic if I did not object – sometimes strenuously – to their moral vision of a world that has no place in it for both me and my soul.