In parts I, II, III, and IV of this essay, I examined the problem: why Christians face increasing demands to accept same-sex marriage and homosexual sex not as voluntary conduct but as essential components of personal identity, and why the nature of Christian theology would require Christians to renounce their own faith identities to do so. In this final part, I look at the prospects for a solution or, at any rate, an armistice.
As I noted at the outset of part I of this series, we do not live in a live-and-let-live society; we live, increasingly, in one in which organized pressure campaigns and administrative and legal proceedings are brought to bear on people who take a traditional religious approach to same-sex relationships. As I noted in parts III and IV, the root cause of that conflict is the insistence on modeling the “gay rights” battles after the litigation strategy used against Jim Crow. You could cite examples all day of how this leads to aggressive efforts to force religious believers to renounce their own consciences:
The New Mexico Human Rights Commission prosecuted a photographer for declining to photograph a same-sex ‘commitment ceremony.’ Doctors in California were successfully sued for declining to perform an artificial insemination on a woman in a same-sex relationship. Owners of a bed and breakfast in Illinois who declined to rent their facility for a same-sex civil union ceremony and reception were sued for violating the state nondiscrimination law. A Georgia counselor was fired after she referred someone in a same-sex relationship to another counselor….
This is to say nothing of more radical efforts on the Left to seek more fundamental changes to the institution of marriage, by severing its link to children and redefining its rules about monogamy, or viewing marriage itself as a form of inequality that privileges the married over the unmarried. Such efforts may seem a longer shot right now, but we know they will never lack for media, academic, and entertainment friends eager to “mainstream” them.
Outside the United States, with its residual constitutional protections for speech and religion, the situation is even grimmer, ranging from a U.K. lawsuit to force churches to perform same-sex weddings to a Canadian “hate speech” case against a Christian pamphleteer, which ended with the Supreme Court of Canada ruling against the pamphleteer, albeit while beating back efforts to deem Biblical quotations themselves to be “hate speech.”
But while powerful forces already in motion lead us further into conflict, it does not need to be our inevitable and permanent condition.
Christianity Birthed the Ideas of Religious and Political Tolerance
At this point, it is useful to step back and review the historical roots of the Western ideas of Christian liberty and religious tolerance. At its origin, Christianity began as a minority religion, persecuted by the Roman and Jewish authorities. Jesus, unlike the earthly founders of some other world religions, never sought civil or military authority, and was ultimately put to death by the government. He insisted at all times that his kingdom was of heaven, and not of this world. He essentially invented the concept of separation of church and state by the injunction, radical in its time, that his followers pay to Caesar what is Caesar’s, and to God what is God’s. His only direct teachings on government were against corruption and abuse of power by tax collectors and soldiers who used their positions to extort money from subjects under their thumb.
The rest of the New Testament is not much more engaged on the topic, although Paul and the other apostles did devote a lot of attention to guiding how the new community of Christian believers should live. As discussed in part II, while Christianity’s individual moral teachings are mostly quite clear, this has left a lot of room for contention and criticism over Christianity’s role in shaping society as a whole.
The distinction between the City of God and the City of Man was developed at much greater length by St. Augustine of Hippo, the great North African Catholic philosopher. Augustine wrote in the early fifth century when the church had gained control of much civil authority only to see it disintegrating under barbarian invasion. It remains a wise distinction today: Christian moral philosophy can and should inform the governing authorities (as it has always done in Western society in general and America in particular), because it is wise and just and humane, and because, in the real world, the faith of the governed is always relevant to self-government.
But ultimately, while all legitimate Christian morality—including the natural-law basis of our individual rights—derives from God, all legitimate civil law must rest on a foundation of popular consent. We should be under no illusion that the two will always be in harmony, but when they come directly into conflict, terrible things can happen.
In Search of a Westphalian Peace
Following the Protestant Reformation in the early sixteenth century, Europe erupted in religious wars; not for the first time, but surely the bloodiest. Christians, by then ensconced in civil authority and accustomed to civil power (and sometimes its corruptions), sought by the sword to stamp out what Catholics regarded as heresy and Protestants regarded as fundamental corruption within the Catholic Church. The carnage reached its apogee in the Thirty Years’ War of 1618-48, which by some estimates killed anywhere from a quarter to 40 percent of the population of what would later be Germany and set back its political development by two centuries.
The war ended in 1648 with the Peace of Westphalia. While many aspects of the Westphalian order would be crucial to European and world history, the important point for the history of religious pluralism is that the Christian nation-states of Europe agreed amongst themselves to accept different religious doctrines and to cease going to war in order to change them. Issues of sectarian tolerance would be localized to within states, rather than being the main driving force in cross-border wars among them.
It would take time for that principle to trickle down to pluralism within a nation’s population. The next few decades would see nations like England and France turn the screws on their religious minorities (the British Isles would be convulsed with religious strife, and the persecution of Catholics in particular, for most of the seventeenth century). Moreover, the Westphalian settlement was never accepted by Europe’s Muslim neighbors, and mostly was not applied to them by the powers of Christendom, either. But the core principle—we are willing to live with the reality that some of our neighbors do not share our view of the deepest truths—led in the fullness of time to a better, more stable accommodation of sectarian differences.
Eventually, the idea of religious freedom within a state would find its greatest flowering in our own country, which was originally colonized by people far more urgently concerned with religious liberty than with, say, democracy, free speech, or free markets. Contrary to what twenty-first-century liberal-progressives would have you believe, neither the original colonists nor the Founding Fathers were strict devotees of a separation of church and state.
The Pilgrims, to pick the most obvious example, came to America mainly so they could find establish their own community with their own religion as its organizing principle. At the time the First Amendment was written, several states still had their own established state churches, and the Establishment Clause was written as much as anything to protect them from being supplanted by a federal established church. Even in later years, as the states abandoned established churches, groups ranging from the Mormons to the Amish to the Hasidim have worked to create communities in which they could set the dominant governing tone reflecting their own principles. This, too, is a form of religious freedom.
The Crucial Principle Is Accepting Differences
But the old Westphalian settlement, as refined by American practice, always demanded that every religious group accept that the existence of the others. Vibrant religious communities could exist in a pluralistic society so long as they did not see one another’s insistence on practicing their own faith as an affront to themselves. Distinct communities with distinct values could coexist so long as they all accepted a baseline of pluralism. The more government and its inherently value-embodying rules were set at the local level, the easier this settlement was to sustain. The Peace of Westphalia could never have existed in the Roman Empire, or even the modern European Union.
We are in danger of losing that settlement in America today, as illustrated both by the furious reaction to the Supreme Court’s Hobby Lobby decision and by the rhetoric deployed in fights over religious liberty in the LGBT-rights context, to the point where the liberal and progressive writers rarely mention religious liberty without scare quotes, and the president for years now has pointedly talked about “freedom of worship” instead of the more robust freedom to practice faith. The governor of Utah even faced an uproar over the seemingly uncontroversial view that state executives should defend and enforce their own states’ laws.
Given the tendency in some corners to regard the existence of traditional, orthodox Christianity as an affront that must be stamped out via boycotts and public and legal pressure, the old Westphalian settlement is more endangered now than it has ever been. The activists who relish the prospect of this conflict are certain they can win, but as the Thirty Years War illustrated, such conflicts often produce no winners. But if good fences are needed to make good neighbors, where to build the fence? Where does it all stop?
Is There A Way Forward?
In war—and all political and legal conflict is war by other means—the easiest way to prop up the morale of your opponents once their defeat becomes obvious and inevitable is to convince them that there is no safe way to surrender. To choose the ugliest example, some of the bloodiest and bitterest fighting of the European theater of World War II was in the final weeks of the Eastern Front, culminating in the Battle of Berlin.
The German Army, without hope of victory or truce, fought with desperate, cornered ferocity because hundreds of thousands of German civilians were evacuating behind its line of retreat, and because the victorious Soviet Red Army was utterly merciless in its advance, reaping revenge for extensive prior German atrocities with a vast campaign of rape and savagery. There was no upside in a soft retreat before such an advance, even if Germany had been ruled by a less psychotic regime in spring 1945. (Most political battles aren’t waged between Hitler and Stalin, but the lesson applies in any conflict).
It is, by now, inevitable that same-sex marriage will be the law of most if not all states in the United States, and recognized nationally by the federal government. The political opposition to same-sex marriage has been collapsing in the past three to five years, and is now sustained primarily by fear that Christian opponents have not been offered any way in which to protect their own competing interests.
At this point, the chief obstacle to conservative acquiescence in same-sex marriage, however grudging, is a very well-founded fear that there is no stopping point—that today’s concession of the legal legitimacy of same-sex marriage will be taken as an invitation for tomorrow’s invasion of any remaining preserve of conscience in which people can reserve their own dissent. The florid rage of Democrats and liberal-progressives over the Supreme Court’s comparatively modest and narrow Hobby Lobby decision just drives home how emboldened the opposition has become to any safe haven for Christian conscience in any walk of life. It also reminds us how little regard the active parts of the Democratic Party have for the notion that Christian beliefs are worthy of being treated by the government and society as legitimate and real, as opposed to superstitious, backwards, and pretextual.
Defending the First Amendment
Behind the facade of a flurry of defensive activity, weariness with this topic is everywhere among Christians and conservatives. One of the iron laws of political gravity is that, if you’re not on offense, you will just keep losing ground until you have nothing remaining to lose, and thus we see conservative Christians filing religious-liberty lawsuits and proposing religious-liberty legislation.
These are indeed necessary steps, and they will succeed only if we have the courage of our convictions not only to propose them but to defend them with the same unashamed zeal as the opponents of religious liberty. That has not been in evidence: governors like Mike Pence, Jan Brewer, Nathan Deal, Asa Hutchinson, and Pat McCrory, who are in principle supportive of the idea, have either lacked the courage to follow through on religious-liberty protections or lacked a strategy to plainly and openly defend them against what are now predictable organized pressure campaigns by social activists and their allies in large corporations.
Defenders of religious liberty have allowed themselves to be divided, isolated, and defeated in detail by smaller but more cohesive, angrier adversaries who have consistently dictated the time and terms of engagement. But boycotts collapse when they have to be applied to too many targets at once. If proponents of liberty band together in these fights like the slaves at the end of Spartacus, they will do just fine (of course, the slaves got crucified together, and that is always a possible outcome—but then, the Romans were no ordinary adversary).
But offense is just a tactic; the end goal must be a stable, Westphalian line of armistice. If there is a way forward, if it is possible for Christians to be tolerated in twenty-first-century America rather than treated like bitter-ender opponents of desegregation, it will only be found if supporters of same-sex marriage decide at some point that things have gone far enough, should not go much further, and that the time for conciliation and compromise has come.
The impetus for this will never come from the zealots, but it is possible that it will emerge from the broader mass of voters who have followed them in recent years, and it will likely become visible only in retrospect from election returns, and from the actions of nominally apolitical institutions. The fact that the outcome is mostly out of Christian hands does not mean there is nothing we can do. An affirmative agenda for compromise means demanding respect and protection for religious liberty, but it also requires offering something in return.
What would that something look like? One element, of course, is for Christians, conservatives, and Republicans to demonstrate a greater personal ease with gay Americans, as people. As frustrated as we may get with the flagrantly one-sided nature of the public, media debate, we need to be happy warriors, keeping our calm and our cool and showing with deeds, not just words, that our disagreements on matters of deep principle do not prevent us from treating others with the love and respect that the Gospel demands of us. That’s not always easy in an emotional political fight; we have to work at it, and we must.
Hate the Crime
On a concrete political level, there are two particular areas in which ideological combat has obscured the potential for bridge-building common ground. One of these is hate crimes. Violence may not be a day-to-day threat for most gay Americans, but anyone who has been—or seen a loved one be—on the receiving end of violence can testify to the outsize impact it has.
While sensational stories like the Matthew Shepard case tend to turn out to be more myth than reality, hate crimes against homosexuals (especially gay men) are a real thing, and cracking down on violence to ensure that all enjoy the equal protection of the laws is the first duty of government. Much of that can be done simply by executive enforcement priorities at the local, state and occasionally federal prosecutor level, and by raising law enforcement awareness, but legislation can at times be an appropriate tool as well.
Some conservatives instinctively dislike “hate crimes” laws for two related reasons. First, they risk creating “thought crimes” that punish motive, rather than punishing the same violent act the same way. I used to be more sympathetic to this view pre-9/11, but the reality is that hate crimes are disproportionately harmful for exactly the same reason terrorism is: targeting strangers for violence out of the blue over an animus or a cause sends a message of terror to anyone who could envision the same thing happening to them.
The “thought crime” aspect can be resolved by the simple expedient of writing such laws to punish, not “hate” as a motive, but rather crimes whose objective circumstances look to a reasonable observer like a hate crime. After all, the harm caused by a gay-bashing attack is done by the public act of, say, yelling slurs while jumping a guy outside a gay bar, not by the private act of what the attacker may have read in books or on the Internet.
Second, hate-crimes laws are criticized for creating unequal “protected classes” of crime victims. But like the thought-crimes problem, this is mainly the fault of poor drafting of such laws (which encourages their uneven application) rather than an inherent flaw. Rather than enumerate a series of exclusive categories, it’s entirely proper to cover all forms of hate crime that appear to an objective observer to have resulted from selecting a victim based on some observable or perceived characteristic rather than due to financial or sexual motives, escalation of a pre-existing or personal conflict, etc.
Freedom to Work
Another area where common ground is possible, but harder to forge, is employment discrimination. Again, at a general level, the majority of Christians and the majority of conservatives and Republicans would all agree that gay people should not face discrimination in finding work, due either to their orientation itself or due to disapproval of their sexual choices and relationships.
Outside of government, Christians can help alleviate that with a mindset of inclusion, even at some risk to ourselves of the potential for hiring someone who might end up setting the machinery of the law against us—something people are less likely to do to a boss who treats them with respect and decency.
The problem of translating the non-discrimination principle into legislation is threefold, but again, none should be insurmountable if there exists anyone with whom good-faith compromise is possible. First is the slippery-slope problem: many conservatives fear that enshrining sexual orientation next to race and gender in the law’s list of protected categories for one purpose will encourage the courts to treat it the same way for all purposes, even when there are rational distinctions to be drawn. This is where our experience with the Seven Stages of Liberal Legal Activism become a factor:
- It’s a free country, X should not be illegal.
- The Constitution prohibits X from being made illegal.
- If the Constitution protects a right to X, how can it be immoral? Anyone who disagrees is a bigot.
- If X is a constitutional right, how can we deny it to the poor? Taxpayer money must be given to people to get X.
- The Constitution requires that taxpayer money be given to people to get X.
- People who refuse to participate in X are criminals.
- People who publicly disagree with X are criminals.
In the words of Dune’s Muad’Dib: “When I am weaker than you, I ask you for freedom because that is according to your principles; when I am stronger than you, I take away your freedom because that is according to my principles.” Given the frequency with which the Seven Stages have been deployed by liberal-progressives over the years, it is the wisdom of experience never to believe the sincerity of any liberal-progressive promises of a stopping point or a limiting principle, and that mistrust makes compromise difficult.
But it’s also a reason to act now to enshrine a middle ground in legislation rather than trust in the courts. The biggest-ticket question of all—marriage—is a horse that may have left the barn by the end of this month. The goal for Christians and other faithful now must be to drain the momentum of the activists by picking more defensible terrain and winning over their less-committed allies—a time-tested defensive strategy in politics as in war.
Second and relatedly is the fact that our anti-discrimination laws, especially in employment, are already dysfunctional, burdensome, and the cause of too much federal overreach, too much unwarranted litigation, and too much litigation-avoidance behavior. This is why even some supporters of same-sex marriage are skeptical about the federal Employment Non-Discrimination Act. But Republicans in Congress and the states, in many cases elected with the support of Christians and other religious people, have a governing majority now and should act like one. New anti-discrimination laws don’t need to repeat the mistakes of the old ones, but can instead be written as a model for reform.
The third problem is the direct, practical one, also a challenge of creative drafting but a hill worth dying on for those who oppose having the courts dictate everything: coming up with legislative ways to distinguish (or more carefully guide courts in distinguishing) between situations of improper discrimination (e.g., denying a gay person a job as an accountant) and situations in which religious interests should legitimately take precedence (e.g., a Christian school exercising the right to decide it would cross the line into scandal to employ a teacher who is openly in a same-sex marriage, or indeed who openly dissents from church teachings).
This kind of line-drawing is what we pay legislators to do, and not so far in the past, it was a bipartisan occupation. The 1993 Religious Freedom Restoration Act at issue in Hobby Lobby was largely written by Sen. Chuck Schumer and signed into law by Bill Clinton. In fact, the recently written state RFRA laws have made some efforts at doing this. Again, the biggest obstacle to compromise is that proponents of such bills need to speak up for their virtues without embarrassment if they want to give opponents a political downside for obstructing them.
Stop the Quacks
An example of a smaller issue on which there also ought to be a sensible middle ground is “gay conversion therapy.” On the one hand, the various quasi-medical efforts to “convert” gay people into having heterosexual desires are dominated by quackery, and state medical establishments should have a free hand in prohibiting them from passing themselves off as any sort of legitimate scientific or medical discipline, including by banning licensed doctors from participating. (The same should be done for the same reasons to “gender-reassignment” surgeries; that day will come in time, but don’t hold your breath on empirical science winning that battle over ideology in the near term).
I don’t exclude the possibility that some people might in some cases be able to alter their sexual desires (human willpower and self-control are variable and not always well-understood; thus, if it is possible for some people to do an extraordinary and difficult thing, this does not prove that it is possible for all people; likewise, if some people cannot do a thing, this does not prove that nobody can), but there’s no scientific evidence that this can be done commonly or reliably.
On the other hand, gay Christians in particular should remain free to choose less formal forms of therapy—whether or not those are faith-based or contain some elements drawn from psychology or psychiatry—without the state stepping in to ban it.
There should also be common ground on the persecution of homosexuals, which – like persecution of Christians – is open and bloody in many parts of the world. Some of that comes from more or less Christian jurisdictions like Uganda and Putin’s Russia. Much of the worst comes from the Muslim world, especially theocratic fanatics like ISIS, who are in the habit of stoning gays to death or tossing them off towers. Working together to protest the worst atrocities is a good way for Christians and gays to be reminded of the areas where their values and interests can overlap.
Finally, there are many situations in which gay people, especially refugees and gay youths, are in need of charitable assistance, and not just monetary—teen runaways, asylum seekers, etc. Common efforts to provide charity may be hard to organize, because both Christians and secular gays are inclined to see people in soul-aching trouble as proper targets for the most well-intentioned sorts of proselytizing, and that means direct conflict. But Christians have long experience with interfaith relief efforts that skirt these sorts of fundamental conflicts, and can be creative here as well in meeting immediate needs for shelter and a welcome embrace.
This is not an exhaustive list, and of course peaceful coexistence is easier with political allies, so gay Republicans and conservatives, and the dwindling minority of Christian liberals, also have a role to play in de-escalating the tendency to seek unconditional surrender rather than preserving space for liberty, dissent, and free exchange of ideas.
The likely friends of freedom also need to be of more help in standing up for a live-and-let-live ethos that gives breathing space to free exercise of religion. Many libertarians have tended, unfortunately, to retreat to slogans about getting the government out of marriage entirely, a stance that is 1) totally unrealistic, especially given the government role in divorce and child custody, and 2) further proof that same-sex marriage produces momentum for changes in government, law, and society that reduce the status of marriage generally.
Worse yet, many libertarians have chosen the side of big government on LGBT issues, rather than the side of protecting religious liberty. The more pro-SSM libertarians stand up for religious liberty, the more they can contribute to a broader social acceptance of liberty as a force for social peace.
Create Demilitarized Zones
Working together on common ground is a good first step to the two sides humanizing each other and learning the habits of compromise. But the final piece of the puzzle of armistice and coexistence is the need to demobilize the institutions that have been engaged in LGBT causes: Hollywood, the universities, media and entertainment companies like Disney/ESPN, and other big corporations. So long as those various entities are run and staffed by people who see Christians only in caricature and see LGBT causes through the prism of Jim Crow, conflict will never end.
Corporate pressure has been especially prominent in the recent culture wars on these issues. It was pressure from Guinness that made the biggest difference in the New York St. Patrick’s Day Parade controversy. Ditto Disney and the Boy Scouts, or a long list of corporations in the Indiana and Arkansas religious liberty fights.
It will be hard for Christians working in big companies to speak up in favor of religious liberty and against one-sided cultural and ideological activism; one of the leading lights of my profession was essentially driven out of his firm for representing the House of Representatives in defense of a federal law on this topic. That will take courage, but at some point, the Long March of progressive culture warriors can’t simply be conceded if we are ever to have a stable peace and broader cultural respect for the values of free expression and independent conscience rather than groupthink.
I think—I hope—that penning this essay is my own little contribution to that process; I would be a poor representative of my Biblical namesake if I didn’t try.
The Obstacles to Peace
All of these efforts may be helpful, or they may come to naught. One obstacle to any effort towards peaceful co-existence, as I noted in parts III and IV, is the momentum generated by seeking a resolution in the courts. If we were dealing solely with a democratic movement to rewrite the law premised on a weighing of society’s changing values—such as the recent referendum on marriage laws in Ireland—there might be no need to have this conversation.
It is yet possible that the Supreme Court will more or less admit in its decision in Obergefell v. Hodges that it is simply making a value-driven policy decision that should have no other precedential effects, but that is not normally how the court works (even in Bush v. Gore, when the Supreme Court attempted to limit the decision to its facts in light of the haste of its decision and its grounding in stopping a runaway state court, the underlying principles took on a life of their own in subsequent election law cases). So the inertial force of litigation will likely make it hard to stop what has been set in motion.
Another obstacle is the Democratic Party. Even as recently as 2006, the Democrats as an institution were interested in persuading culturally moderate voters by appeals to broad-based issues of governance like economics and foreign policy. But the Obama era has thoroughly re-oriented the party around culture war as a tool for motivating young, liberally-inclined voters with little knowledge or interest in other issues.
In the past few years, the declining salience of the Iraq War has elevated LGBT issues to the party’s number one cultural wedge-issue priority (if you don’t believe me, spend a few days reading their fundraising emails). As a result, the Democrats no longer have any incentive to seek anything but constant, zero-sum conflict on these issues. So a Westphalian peace will, if it is to succeed, need to be imposed over the objections of one of the two major political parties. That, too, is an obstacle not easily removed, but like the Obama strategy itself, it will last only so long as it is seen as electorally successful.
The Time We Are Given
‘I wish it need not have happened in my time,’ said Frodo.
‘So do I,’ said Gandalf, ‘and so do all who live to see such times. But that is not for them to decide. All we have to decide is what to do with the time that is given us.’
Many Christians today would doubtless rather live in less turbulent and trying times for the faith. For the moment, the number of young American atheists and agnostics is growing, and they are aggressive with the zeal of the new convert in preaching their creed and seeking to establish it in the law and the culture. It is unsurprising, though still deeply sad, that gay people disproportionately belong to their ranks, exacerbating our cultural divide in ways that even America’s epic battles over race never had to bridge. This is particularly difficult for gay Christians (especially those who choose a celibate life), who may find themselves doubly isolated.
But Christians have faced, and continue to face to this day around the world, far worse fates for their faith than yet exist in America. If we are to keep this country that way for our children, we can best do so by standing openly and forthrightly for our faith; by treating all our neighbors with individual love and respect; by seeking common ground; and by having hope, even in the face of rational counsels of despair. We can only do our best to see to it that the lights of faith, hope, charity, reason, family, and liberty will endure.