If 'gay is good', is opposing it bad?

Michael Cook
May 13, 2015
Reproduced with Permission

Many people with a religious outlook on life feel threatened by the advance of same-sex marriage. The Coalition for Marriage , a British lobby group, has just published a pamphlet listing 30 instances in which persons of faith were penalized for opposing same-sex marriage. Its claim is that:

"Redefining marriage is sold as a permissive measure, but it will quickly become coercive. In fact, it already has. Too many people have already been punished for expressing their sincere beliefs about marriage. Wherever marriage is redefined, people are punished for their beliefs."

It's important to place this in perspective. The jails of England or of Massachusetts are not overflowing with dissidents from a same-sex marriage ideology. But the list is still worrying. The cases range from hate mail to being fired to being forced out of business.

Supporters of same-sex marriage pooh-pooh these as tempests in a tea pot and say that people with a traditional view of marriage have nothing to worry about. However, the clear-headed vision of a commissioner on the US Equal Employment Opportunity Commission, the agency which enforces legislation against workplace discrimination, Chai Feldblum , should be taken into account. Her views are to be reckoned with.

Before her appointment by President Obama in 2010, while Feldblum was a professor at Georgetown University Law School, she wrote two prescient articles about gay and lesbian equality which set out an agenda for activists.

Agenda? What agenda? A pink fifth column? Next you'll be talking about gays under the beds. There is no gay agenda, most activists will say.

However, in her 2005 article in the Yale Journal of Law and Feminism , "Gay is Good: the Moral Case for Same-Sex Marriage and More", Ms Feldblum begs to differ. Surprisingly, she agreed with Justice Scalia's scathing dissent in Lawrence v. Texas . He had complained that the Supreme Court had signed on to " the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct ."

This guy is right on the money, says Feldblum. "Justice Scalia's formulation correctly articulates, to my mind, what should be one of the top priorities on the 'gay agenda'."

After all, she points out rather colourfully, "granting a marriage license to a same-sex couple signals no more approval by the state of gay sex or gay couples than granting a marriage license to a convicted rapist signals approval by the state of rape or rapists". The problem with placing marriage as the terminus of gay activism is that gays and lesbians will get only the right to do their bad stuff within a bourgeois institution. The real struggle is not over until society acknowledges that they are doing something positively good. We must convince "the general public of the moral equivalence of gay and heterosexual sex," she argues. The real goal must be a society in which homosexuality is regarded as a positive force for moral good.

Moving on, in 2006 she wrote an article for the Brooklyn Law Review which has been widely cited. In this one she unpacked the legal consequences of "gay is good" for other goods, notably religious liberty.

In a sense, Feldblum has a deeply moral approach. She acknowledges that the law is a teacher. And since "gay is good", it ought to teach that homosexuality is morally upright, even virtuous.

How does she defend this? She distinguishes three types of liberty which the state ought to protect: bodily liberty, identity liberty and belief liberty. The first is easiest to understand: the state should not imprison or harm us without good reason.

Identity liberty is a relatively new idea, but it has been repeatedly endorsed by the US Supreme Court in recent years. In the words of Planned Parenthood v. Casey , in 1992, the Court stated:

"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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."

Being gay is such a belief. It is "the core of a person's identity". It is self-definition which gives a person dignity because it is the fullest expression of his autonomy. And, significantly, it is a belief which is not received from someone else, such as the State.

Or a religion.

This is the key to understanding why Feldblum (and so many others) ranks "belief liberty" below "identity liberty". In her mind, religious freedom is protected by the American Constitution as a "belief liberty", but not as an "identity liberty".

"If these beliefs are an integral part of the person's sense of self, my argument is that they are protected by belief liberty. The particular source of the individual's beliefs is not the barometer of their importance for due process purposes. For belief liberty, the source of the beliefs, be it faith in God, belief in spiritual energy, or a conviction of the rational five senses has no relevance. A belief derived from a religious faith should be accorded no more weight and no less weight than a belief derived from a non-religious source."

In this sense, therefore, religious belief is inferior to a gay identity because the former is imposed from outside, while the latter wells up from within.

Feldblum sympathises with the dilemmas that people with religious convictions face in a society which has legalized same-sex marriage. After all, she is the daughter of an Orthodox rabbi ; she studied religion at Barnard College; and she once dreamed of becoming a Talmudic scholar.

But ultimately gay identity must trump religious beliefs. As she once told Maggie Gallagher in the Weekly Standard , "Sexual liberty should win in most cases. There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win because that's the only way that the dignity of gay people can be affirmed in any realistic manner."

So this is the way forward: a legal framework in which gay is good, so good that affirming this is the touchstone of a just society.

It's important for opponents of same-sex marriage to understand this. Too often they treat it as something so utterly preposterous that they can only respond with derision and insults. But there is an Alice in Wonderland logic to same-sex marriage, as Chai Feldblum demonstrates. Only by understanding that logic will we be able to map out a route ahead.