Though they are not alone, the most obvious culprits are some of my fellow Roman Catholics. It is pretty serious when a Catholic says, “I am personally opposed to same-sex unions; nonetheless, I will not only support such unions, but I will sponsor the bill to make it happen.” Most people would automatically, and reasonably, come to the conclusion that such a person is not being honest: he is neither personally opposed, nor following the faith he professes. For this person, “personally opposed” must have a very peculiar meaning, unshared by most of the population.
Such an accusation rankles the fervent “personally opposed” devotee, because he sincerely believes that his is the proper course of action. His argument about marriage, for example, tends to look something like this: Civil marriage is completely different from religious marriage. If a religion thinks it is proper to keep marriage between one man and one woman, that is no concern of civil authorities. Similarly, religion has no authority to say what civil marriage is. Since it is a purely civil affair, it must be ruled by purely civil laws, especially the Constitution’s Equal Protection clause. The push for same-sex unions and polygamy, then, is just a case of providing equal rights.
Let us leave aside the question of whether these statements accurately reflect the faith tradition in which our “personally opposed” friend claims membership. (Catholic teaching, for example, holds quite the opposite: that as a natural institution, marriage is the union of one man and one woman.) If you are truly opposed, yet you truly believe that the Constitution will not permit your position to be enshrined in law, then your task is to change the law—including, if necessary, the Constitution—to reflect what you believe to be the truth for human beings and the best for society. At the very least, your duty is to not exacerbate the situation.
Yet our “personally opposed” congregant operates according to a strange moral arithmetic in which his professed moral stance is canceled out by current law, to the point that he is not even permitted to try to change the law. These people are then left to follow a lesser law as though it is an absolute. It is as though they feel the need to do something, and since their own vision of the good has been stymied, they start working to forward someone else’s vision of the good.
What could so definitively stop their acting on their own asserted beliefs, according to their own conscience, that they are compelled to act according to someone else’s conscience? For, if we take them at their word, that is what they are doing. The claim seems to be that no one who believes something to be right or wrong based on a faith-claim or based on someone else’s authority may act and vote according to his or her own conscience. One person put it to me this way: “Please spare me the lecture about natural law. We live in a multi-faith democracy and not a theocracy. Catholics do not, under our system of government, get to dictate what kind of marriage non-Catholics can have.”
This is a strange argument, for several reasons.
First and most obvious, this argument is utterly at odds with the long-standing tradition in this nation of opposition to the status quo (e.g., to slavery, to Jim Crow laws, to war, to the death penalty, to immigration or economic policy), grounded precisely on religious moral principles.
Second, faith is not opposed to reason. Many people are nervous about any claim rooted in faith, because they take faith to be something opposed to reason. It is not. Faith is an act of trust in the sobriety and authority of the person who bears witness to certain news. This puts our “personally opposed, but …” acolytes in an uncomfortable position, for there is no one who does not believe in many things based on the authority and testimony of others. We cannot possibly go about rediscovering every claim in science, history, and philosophy. We all accept many things on testimony and authority, without direct and independent evidence. We cannot thereby rule out such testimony and authority when it comes to making public policy.
Third, the natural law is not, in itself, a matter of faith. It has been with us in one form or another since before Plato and Aristotle. It is the basis for the entire Anglo-American legal system (although many practitioners within that system have been influenced by legal positivism). Admittedly, many faith traditions accept some version of natural law. Admittedly, many of the faithful accept the natural law based on the authority of others. But that does not mean that the natural law is itself an article of faith, since many accept it without any reference to faith.
Fourth, the argument abuses the notion of theocracy. The Founding Fathers took certain truths to be not faith-based but self-evident, available to any reasoning person—including the claim that we are endowed with inalienable rights by our Creator. They also believed, by and large, that a religious citizenry is the only possible grounding for a working self-government. If this is theocracy, then the United States has been a theocracy since its inception, and working toward a solution according to faith-based principles of right and wrong is not only clearly constitutional, but also expected of every caring citizen. If, on the other hand, the Founding Fathers did not found a theocracy, then the Constitution clearly affords us the wherewithal to accommodate both religious freedom and a robust application of our moral beliefs to the law.
Furthermore, in our system, members of any faith could tell everyone what marriage is—if they have the votes. What they certainly would not do is tell others what to believe or how to worship.Freedom of conscience and of worship is a fundamental human right that is part of the truth about the human person and preexists the law, and the law must recognize and defend that freedom in order to have any claim to legitimacy. However, when it comes not to thoughts and beliefs but to human actions with public consequences, law must have something to say, and therefore the people who are ruled by the law must have something to say, as well, no matter what their faith tradition or lack thereof. In that regard, a majority of Americans, when given the opportunity to vote, demonstrates a belief that there is a truth about the human person and human marriage that preexists human law and that human law must respect, if it is to be fully justified.
There are other possible interpretations of “personally opposed” that some might think could justify the “but.” We might remember that the Massachusetts Supreme Judicial Court, in its Goodridge decision (2003) accepting same-sex “marriage,” denied its own long-established precedent, quoting the United States Supreme Court’s Casey decision (1992) in support of its conclusion that morality could no longer be considered a rational ground for law. In that ruling, we find this passage: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
At first glance, this passage is merely a defense of freedom of thought, but given its context as a defense of the abortion regime, it is so much more. Taken to its logical conclusion, it affirms that, to be a person, one has to be able to decide for oneself what is important and then act on it. Just having the right to decide for myself who counts as a person is not enough; I must be able then to kill those I find do not measure up, lest I have no liberty, and thus no personhood. In the marriage context, it apparently means that, whatever I believe or want marriage to be, it can be that, and the law is powerless against my desires.
This is a passage that goes beyond utilitarianism. John Stuart Mill and his followers held that human beings are only fulfilled in the pursuit of pleasure and the avoidance of pain, and that the way to maximize pleasure is to allow as much liberty as practical so that people may pursue these ends. But even Mill thought that one’s right to swing one’s own arm ended at someone else’s nose. There are no such brakes on one’s actions in the “heart of liberty” passage. Taken literally, the passage demands that the law never forbid an action if there is any disagreement about its justification. Since there will always be someone who disagrees, there really can never be laws about anything. In such a world, the powerless are at the mercy of the powerful.
Those in favor of such an expansive version of liberty, and thus an expansive version of marriage and sexuality, seem to recognize this fact and use it to their advantage over those who think that civil law and ordered liberty are grounded in some truth about human beings and moral law. This latter group continues to believe that there are such things as human rights that preexist the civil law, including rights to freedom of conscience and worship. Thus, they tend to respect these rights in those with whom they disagree—that is, they tend to a certain level of tolerance.
The former group, while ostensibly extolling tolerance, cannot tolerate that which threatens their own practices of liberty, including points of view that oppose their own. Such thoughts become the crime of hate speech. Many across the globe, and an increasing number in this country, are facing the wrath of these lovers of pure liberty (for themselves).
Under such a regime, only the conscience of one side can be tolerated. All opposing consciences must be silenced. Today, the intolerant have not simply silenced a surprising number of opposing consciences; they have convinced those silenced people to join with them, and rejoice at the opportunity. As we have shown, such people are either dishonest about their opposition or mightily confused. But make no mistake: when the apostles of the “heart of liberty” come to full power, the “but” is not going to save you if you are “personally opposed.”
Stephen J. Heaney is Associate Professor of Philosophy at the University of Saint Thomas in Saint Paul, MN. This article has been republished from Public Discourse.