Once in a while I encounter a book or an article that is a perfect summarization of the issues I have with conservative evangelicalism in general, and with regard to same-sex marriage in particular. The latest example of this is Damon Linker’s article in the 18 May 2015 issue of the conservative religious publication The Week. Mr. Linker’s text illustrates an enduring syndrome in the politics of religious conservatives, specifically conservative evangelical Christians: how the religious right is in many ways at radical variance with the fundamental principles of the Nation for which it otherwise professes such affection.
As I read it, Mr. Linker’s argument is that while conservative evangelicals’ optimism and faith in “majoritarianism” were amply justified during the heyday of Jerry Falwell and the Moral Majority, that sense of optimism has largely been swept away in the succeeding decades with a tsunami-like reversal of public opinion regarding the acceptability of gay / lesbian unions. (Although Mr. Linker does not mention it, I cannot but imagine that recent polling data documenting the increase in people responding "None" to question about religious belief and affiliation would reenforce his conclusion.) At first, says Mr. Linker, the acceptance of gay marriage was largely shoved down the throats of Americans by left-leaning appellate courts that ruled against what was at the time the overwhelming conservative consensus against gay marriage. But as the 2000s drew on, that acceptance of gay marriage became self-sustaining to the point that public opinion is now overwhelmingly in favor of sexual-orientation minorities being allowed to marry, not coercively as a resuilt of court decisions, but as a matter of cultural evolution. So, over time, attitudes that were once forced became voluntary. The result, Mr. Linker concludes, is that now, halfway through the second decade of the 21st century, conservative Christians would do well to concede that the culture war has been lost, at least vis a vis marriage equality, and to respond by “circling the wagons” in order to preserve the remnant of (what they regard as) orthodox Christianity from the depredations of rampant secularity and anti-Christian sentiment. Mr. Linker terms this strategy the "Benedict option" after St. Benedict, who founded a monastic order comprising monks who similarly aspired to spiritual purity by isolating themselves from the ambient culture.
His thesis rests on some implicit, and some not-so-implicit, assumptions that are questionable, at best, and founded on a flawed understanding of the nature of American law and the function of courts. First of all, it is not the purpose of the courts to slavishly enforce any “majoritarian” opinion on any issue of the day. The “majority” is not always right. In fact, the “majority” is not always even legal. Contrary to what Mr. Linker evidently believes, the supreme law of the land is neither majority vote nor majority opinion. According to Article VI of the US Constitution This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. If all the legal residents of, say, the State of Washington – whose constitution allows for “initiative and referendum” – were to vote unanimously to change Washington's form of State government to a hereditary monarchy, beginning with King Jay Inslee I, Emperor of Puget Sound and Defender of Starbucks, such a result would be null and void, because the Constitution (Article IV, Section 4, clause 1) specifies that The United States shall guarantee to every State in this Union a Republican Form of Government … This provision can be changed, but only by a constitutional Amendment, not by a simple majority-vote plebiscite. If the Supreme Court, as is widely anticipated, should decide that the Constitution mandates the permissibility of gay marriage nationwide, no majority, nationwide or in any individual State, can overrule that holding. (Personally, I do not believe this is as much of a "done deal" as many others, but never mind ... ) At that point, marriage equality becomes fundamental constitutional law, and changing it would require either a constitutional Amendment or a 180-degree reversal via a later and countervailing Supreme Court opinion -- as Brown reversed Plessy -- majorities to the contrary notwithstanding. Mere “majoritarianism” proves nothing.
Mr. Linker also assumes that, during the Falwell / Moral Majority era and prior to the advent of an “autonomous” consensus in favor of marriage equality, public opinion was continually frustrated by court opinions far to the left of where “majoritarian” public opinion was at that time (the ‘80s and ‘90s). I would certainly not challenge the thesis that public opinion on marriage equality then was radically different from where it is now. After all, the reason the change in attitude about gay marriage is so dramatic is because of the breathtaking difference between what public opinion on the issue was versus what it is. But Mr. Linker fundamentally misconstrues the role of the judiciary, especially the Federal judiciary, in such matters. This misconstruction is different from, but related to, his parallel misconstruction of the place of “majoritarianism” in the scheme of American justice. As Chief Justice John Marshall said in the “archetypal” Marbury decision, It is emphatically the province and duty of the judicial department to say what the law is. … If two laws conflict with each other, the courts must decide on the operation of each. Mr. Linker offers no evidence of any cabal, any left-wing conspiracy to play opposite Mrs. Clinton’s long-ago allegation of a “right-wing conspiracy” against her husband. Absent that and actual evidence of malfeasance -- and since it is "the province and duty of the judicial department to say what the law is" (emphasis added) and not what public opinion is -- judges should be accorded at least the presumption of integrity when they “say what the law is”. The most that Mr. Linker can conclude is that, during the Falwell / Moral Majority era, appellate judges' interpretation of the Constitution was much more congenial to gay marriage than the interpretation of the general public. Such a revelation hardly merits a news bulletin interrupting Dancing with the Stars. He also wants to conclude that the former interpretation should be bound by the latter, but the only binding factor on judges is the US Constitution, not the public consensus. Otherwise, judges are superfluous. But no judge at any level interprets the Constitution in an ideological vacuum, but according to their own predilections, interpretive biases, professional training, prior case-law precedent, and even psychological predispositions. The same is true of the American-In-The-Street. All we have a right to ask and expect is the same degree of ideological neutrality from conservative as well as liberal judges -- not that they will always agree with us, or a majority of us -- and least of all with our theology.
And it is theology that is really at the heart of Mr. Linker's argument, despite his superficial concern with judicial rectitude. Here, I freely concede, the issue is more inferential, and consists of an apparent confusion of statutory privilege with constitutional rights. At one point, Mr. Linker asserts that "the American approach to adjudicating conflicts between politics and religion has favored accommodation. This ... persuaded devout Christians that they were free to live out their faith ... provided that they didn't try to set up an established church". This in itself is rather troubling because a long sequence of case law pertaining to the "establishment" clause plainly indicates that it is possible to violate the "establishment" clause of the First Amendment far short of actual, explicit designation of an official church or an official religion. (I agree with Justice Clarence Thomas that -- purely theoretically and in principle -- States could designate churches as being "official" without violating the First Amendment. But this is such an unlikely "blue-sky" possibility, let's not get side-tracked.) That is why the "establishment" clause is worded so carefully: Congress shall make no law respecting an establishment of religion ... (emphasis added) , not Congress shall make no law establishing an official church or religion ... . Are we to interpret Mr. Linker's text as meaning that any act of favoritism on the part of the government toward any religious sect that stopped short of explicit establishment would be consistent with the "establishment" clause? But then he alludes to "the solicitor general of the United States musing ... about the possibility of stripping religious colleges of their tax exempt status" Are we to read this as interpreting laws about tax exemptions for religious organizations as being on a par with the two "religion" clauses of the First Amendment? At this point, one can only wonder if Mr. Linker appreciates the difference between a statute extending such exemptions to religious groups, on the one hand, and "hard-coded" constitutional law like the "religion" clauses, on the other. The distinction is critical: the government could revoke the tax-exempt status of all religious organizations tomorrow, and doing so would entail no violation of either "religion" clause. I strongly suspect -- do not know, but strongly suspect -- that what is at work here is the endemic tendency on the part of conservative Christians to cast themselves as subjects of persecution, even when there is no persecution.
However, strange as it may sound, I do heartily endorse Mr. Linker's strategy of the "Benedict option". What may sound even stranger is that all the foregoing considerations are the reason I endorse this approach. Religious groups and religious individuals, Christian and otherwise, should be welcomed, as equals under the civil law, to a seat at the table of debates on all social and political matters. But maybe adopting the "Benedict option" would be at least a first step toward a more chastened, moderate, and egalitarian approach to such debates on the part of conservative Christians, many of whom have tended since the Falwell era to think of their Christian faith as privileged sheerly by reason of its cultural dominance. In his 25 May 2015 column in The Washington Post, Michael Gerson quotes Jim Daly, head of Focus on the Family: “We are no longer effective at persuasion because we lack humility,” says Daly. “Some in the faith community are losing legitimacy among younger people because many Christians only speak truth and fail to do truth.” Gerson also quotes Daly as describing Christians as "a joyful minority". Even on the level of "mere rhetoric", these are remarkably moderate statements coming from the head of one of the most militantly homophobic organizations in the Nation. This would be the diametric opposite of the spirit of Gov. Mike Huckabee's statement in 1998 to a group of Southern Baptist pastors, which he defended on Meet the Press in 2007, that "I hope we answer the alarm clock and take this nation back for Christ." The point is not to expunge all religious passion from the Public Square, but to allow all voices an equal hearing and to base public policy -- toward marriage and everything else -- only on those justifications that can withstand being tested according to the principles of, among other criteria, the First, Fifth, and Fourteenth Amendments.
Gov. Huckabee and his ideological siblings make the "Benedict option" look pretty good. And the First Amendment even better.
James R. Cowles