Toward the end of this month—on March 26th and 27th—the U.S. Supreme Court will hear oral arguments over a dispute that started about 20 years ago, in May, 1993, when a majority of the Hawaiian Supreme Court ignored millennia of human history, the experience of virtually every culture and civilization that had existed to that time, and a two-decade old precedent of the U.S. Supreme Court, to find that the denial of access to marital status to same-sex couples was a violation of a basic civil right (though it limited the protection of that right to the state’s constitution). That decision caused Congress and the Clinton Administration to adopt the Defense of Marriage Act, or DOMA, the constitutionality of which (in whole or in part) is now before the Court, along with the fight over California’s Proposition 8. Unless the Court takes the unusual step of holding the cases over to its next term, we will receive a ruling from it before the end of June, 2013.
As with any other issue or event in our lives, it is hard to put ourselves back exactly to how we were in May, 1993, and to recount our exact reactions; but I remember that I was startled by a decision that seemed “to come out of the blue,” and was such an aberration in our legal history. Others also reacted against the ruling based on their reading of the scriptures of their faiths, and teachings of their religious disciplines, which universally had found such relationships to be sinful, rather than a civil right. Still others couldn’t fathom how such a ruling could stand when many states still criminalized homosexual activity, and the Supreme Court had just upheld the constitutionality of such laws within the preceding decade. Many people who shared these views joined in the belief that allowing such decisions to stand would rupture the basic moral order upon which our society was held together. In response, DOMA was passed, and many referenda and state constitutional amendments were passed to try to avert such a rupture.
Meanwhile, many who led this crusade, or expressly or tacitly supported it, chose to either ignore or minimize how society itself was changing while war was waged against same-sex marriage. In this I do not mean that they ignored the rise in the public’s awareness of, and in the political influence of, the gay and lesbian community; in fact, the crusaders saw this clearly. However, they continued to treat this phenomenon as an aberration that could, and should, be stopped, and, in doing so, they missed entirely, and to some extent helped to fuel through reaction, the change in social attitudes toward our gay and lesbian neighbors, which has been evolving since the late 1960s. Even more importantly, the crusaders have appeared to be blind and deaf to the basic human element of this unfolding story—to the individuals and neighborhoods whose daily lives have been involved in this evolution. Admittedly, over the last 20 years you can count me among those who supported, at least tacitly, some of the objectives of this crusade.
Since the Supreme Court’s 2003 decision in Lawrence v. Texas, a glacial shift in societal attitudes has merged with a momentum within our legal system and culture to create a wave of steady and growing support for same-sex marriage, as well as an acceptance of our gay and lesbian neighbors into the main stream of society, in virtually every sector of public life. This acceptance and support is most prevalent among the vast majority of those 40 years old, and younger, who are poised to assume the mantle of leadership in our private and public sectors over the next two decades. In fact, Justice Scalia’s dissenting opinion predicted that the Court’s decision and reasoning in Lawrence would eventually lead to the recognition of a constitutional protection to same-sex marriage.
To my conservative friends, you need to understand that most of our children no longer listen to us about this issue, and that the day Scalia predicted probably is near—and will probably arrive as we are beginning this Summer to prepare for the primary battles in early 2014.
When that day arrives, what will we do?
If you are like me, you are at least torn about what the future holds, and the potential for unintended consequences—and how we should respond. Even our conservative paradigms seem to point us in different directions. On the one hand, there is William F. Buckley’s conservative conviction expressed in the original mission statement for National Review [http://www.nationalreview.com/articles/223549/our-mission-statement/william-f-buckley-jr]:
The profound crisis of our era is, in essence, the conflict between the Social Engineers, who seek to adjust mankind to conform with scientific utopias, and the disciples of Truth, who defend the organic moral order. We believe that truth is neither arrived at nor illuminated by monitoring election results, binding though these are for other purposes, but by other means, including a study of human experience.
On the other hand there is Senator Albert Beveridge’s century-old reminder to us of the role of the conservative temperament in guiding our public affairs:
Conservatism means clear common sense, which equally rejects the fanaticism of precedent and the fanaticism of change. It would not have midnight last just because it exists; and yet it knows that dawn comes not in a flash, but gradually–comes with a grand and beautiful moderation. So the conservative is the real statesman. He brings things to pass in a way that lasts and does good.
In the past, I’ve tried to describe the tension between liberal and conservative views of morality, and, within the conservative camp, the additional tension between what Buckley’s conviction appears to require us to do and what Beveridge’s temperament challenges us to do One recent example is this passage from my post last November [A Reminder of What We Should Strive To Be, http://www.bigjollypolitics.com/2012/11/13/a-reminder-of-what-we-should-strive-to-be/]:
What liberals or progressives have refused to acknowledge over the last few decades is that the free relationships upon which our society of free people depends, cannot survive without adherence to these rules of morality; that perfect behavior “is a necessary ideal prescribed for all men by the very nature of the human machine,” and this ideal should not be discarded simply because actual perfection is unattainable; and that imposing rules through government to replace these moral rules is antithetical to the foundation of our society. What liberals or progressives most forget is that by seeking to maintain and apply the rules of morality, we conservatives are trying to preserve liberty by preserving the free relationships upon which our society is based; we are not trying to destroy liberty and impose a “fascist” state.
At the same time, we conservatives often forget that these rules of morality are voluntary; that, though these rules of morality have remained pretty constant throughout Western history, their application can, and sometimes must, change as the human condition changes (and understanding the difference between a moral rule and an application of that rule is a continuing source of tension among conservatives, and between conservatives and progressives); and that the promotion of these rules necessarily requires patience to endure the different choices, and the unintended consequences from those choices, that flow from adherence to voluntary rules—because, as C.S. Lewis correctly noted, no rules of morality or calling in life—not even the calling of “an officer and a gentleman”—can make us, or expect us, to be perfect human beings.
In the end, as with so many other issues, I am reminded of what those among our Founders who drafted the Virginia Declaration of Rights told us was our obligation as free people toward our neighbors: “it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.”
Over the next few months, we conservatives must find a way to embrace our neighbors and guide a future that can no longer be stopped, while we re-commit our neighbors and ourselves to the true principles of the organic moral order of our civilization and re-apply those principles to the 21st Century that we will leave to our children and grandchildren. I know that, to some of us, this challenge seems contradictory, but it really isn’t. However, it will take “eyes to see with” and “ears to hear with” to accept this challenge and meet it.