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Friday, December 30, 2011

Pity the Poor Moderate

I often hesitate before linking to posts or scholarship with which I strongly disagree, or which fill me with sadness.  When you like a piece of scholarship, blogging norms allow you to just say "Read it!" without explaining why you like it.  The same norm could apply to pieces you don't like, but it seems as if fairness dictates something more than that.  And then there is the reluctance not to pick a fight, especially if the author is well-regarded.  

That said, a while back I posted something on a recent symposium introduction by Shannon Gilreath, a strong supporter of gay rights who views both liberalism and religion with hostility and thinks it is more or less worthless trying to find common ground with his opponents, or even talking to them.  I was critical of Gilreath, as I was critical of a similar attitude by David A.J. Richards.  In that post, I wrote: "Most of us who write about law and religion . . . do make an effort to engage those we disagree with. . . . [I]n a sense [Gilreath's] dismissal is a worthwhile reminder that for some involved in these debates--both champions of gay rights and champions of religious rights--their premises are so far apart that genuine dialogue may not be possible.  It is possible that we 'moderates' are neglecting some important sectors of the debate, precisely by engaging with those who think engagement is possible, in much the same way that many liberal scholarly arguments can ignore or fail to engage with truly illiberal groups."  At some point I hope to write about this a little more deeply.  At the time I wrote it, I wondered whether it would be hard to find similar voices on the religious side of the debate.

Well, I found one yesterday, in this post by Robert George.

 You may judge it for yourself, but I don't find it much different from Gilreath's viewpoint.  For both, as I read them, the other side are liars, common ground is for fools, and the only thing left is total war.  (It also seems to me that both sides use the idea of "total war" to justify tactics that they would condemn if engaged in by the other side.)  I don't know whether George's post should be characterized as a Kulturkampf or as a fit of pique, but it is certainly one or the other.  I find it wholly distressing.  

It leaves me wondering about people like me, and many others working in law and religion, who line up on one side or the other but still care about exploring possible common ground.  We understand that church-state issues, including those that intersect with gay rights, at some point involve an absolute clash of values beyond which no compromise is possible.  But we are also aware that people live with such clashes of value all the time, imperfectly but manageably.  And we know that people can readily assume that the gulf is much wider than it really is.  We try to explore just what compromises are possible and what aren't, and to expand the ground on which people can find ways of coexisting.  That needn't make us naive or falsely optimistic; we can appreciate the genuineness of the conflict while still looking for a modus vivendi.  Both George and Gilreath, as I read them, think this is a fool's game, and view people like me (and many others who write on law and religion) as secret or inadvertent tools of their opponents.  

I wonder what George makes of a book like this, and of the efforts of people like Doug Laycock to find ways of accommodating both same-sex marriage and religious liberty.  Is Laycock a fool?  A knave?  Is he acting merely for "strategic or political reasons?"  Is he a secret "sexual liberationist?"  Or just a regrettable casualty in what both sides view as a necessary total war?  I can't say.  I can only draw two conclusions.  We law-and-religion types need to get out more; we need to stop talking to each other and pay much more attention to people who think compromise is impossible and undesirable in church-state relations.  And, in the end, I would still rather be counted alongside Laycock than with either Gilreath or George.  

Posted by Paul Horwitz on December 30, 2011 at 10:34 AM in Constitutional thoughts, Paul Horwitz | Permalink


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Robert George also doesn't allow comments. I negatively noted this in another thread and was criticized. Apparently, he is too busy or something to interact or something.

"It was only yesterday, was it not, that proponents of sexual liberalism were telling us that the redefinition of marriage to include same-sex partnerships would have no impact at all on the lives of those persons and religious and other institutions that hold to the traditional conception of marriage as a conjugal union?"

There is always going to be people on some side of the issue that will be wrong and wish to deny people rights because of some close-minded viewpoint. It's always going to be best to try to not follow their lead and to continue to point out the problems with their arguments.

For instance, to inform them marriage has been "redefined" in any number of ways. Strawmen about "no impact" clouds the issue. Modern divorce laws, sex before marriage etc. "impacts" society in various ways. And, same sex marriage includes "conjugal unions" ... the problem is that Mr. George wishes to have his own definitions of everything.

And, talk to himself a lot. A piece in Slate a few months back underlines the problem with this occurring w/o having enough of an open mind that involves a serious contemplation of your p.o.v. and a full-fledged interaction with the other side that includes a fair accounting of a view you disagree with. An article by George was refuted and he responded in a way many would say is unfair and dishonest. This is not the ideal path and luckily more don't follow it.

Posted by: Joe | Dec 30, 2011 11:00:27 AM

In debates over such topics, isn't there often a disagreement between those who look for common ground and those who think there is no such common ground? Just as a matter of game theory, sometimes the better strategy is cooperation and sometimes it is opposition. Different people will have different views on which is the best approach in any instance, with the compromisers seeing uncompromisers as rigid and stubborn and the uncompromisers seeing compromisers as unprincipled and naive.

Posted by: Orin Kerr | Dec 30, 2011 12:35:32 PM

For me the underlying issue is one that periodically makes an appearance on Prawfsblawg: what arguments are beyond the pale? Gilreath and George appear to hold opposite views about the types of premises that are beyond the pale in arguments about same-sex marriage. Those who explore the common ground differ with both extremes by denying those particular premises (e.g. that religious arguments against same-sex marriage are never appropriate). By doing so, they agree for example that religious arguments are legitimate in discussions of same-sex marriage. If we think that religious premises are valid, then we might value someone holding such views in determining what conclusions follow from those premises. But if we reject those premises, then there seems to be little value in hearing the conclusions that follow from them.

Posted by: Patrick Luff | Dec 30, 2011 12:53:47 PM

If you're not already familiar with this article, as a moderate in the conversation you may find it of interest - Jennifer Gerarda Brown, Peacemaking in the Culture War between Gay Rights and Religious Liberty, 95 Iowa L.Rev. 747 (2010).

Posted by: Art | Dec 30, 2011 1:50:49 PM

I was not aware of it! Thanks; I'll look it up.

Posted by: Paul Horwitz | Dec 30, 2011 1:51:35 PM

The only surprising thing here is that you sound surprised.

George is a culture warrior, and a very accomplished one at that. He is not someone who weighs seriously the concerns and ideas of his opponents -- except when it is in his strategic interest to do so. All those debates and joint appearances with liberal scholars and so forth are strategic moves on George's part, to build an audience for his ideas. If his ideas won out, he wouldn't bother to engage in any of that.

This is not exactly a criticism of George; I just think it's important to understand where he's coming from.

Posted by: JR | Dec 30, 2011 6:58:25 PM

In order to be a moderate in a conversation that supports the concept of same-sex marriage, one would have to deny the very essence of Marriage, and the fact that the inherent nature of Marriage is restrictive to begin with, because not ever couple can live in relationship as husband and wife. One cannot reconcile this truth with error without changing the very essence of Marriage. No one should be surprised that fathers and daughters, mothers and sons, brothers and sisters, children, two men, two women, one man and two women, one woman and two men, cannot be married to each other because they cannot live in relationship as husband and wife.

Posted by: Nancy D. | Dec 31, 2011 12:13:12 AM

Nancy, I appreciate your comment. But I think you misunderstand what I was referring to when using the term moderate. I was not referring to one's views on same-sex marriage. I was referring to those people who, whatever their beliefs on either same-sex marriage or religious liberty, believe in at least trying to find enough room to respect and accommodate both SSM and religious liberty -- for instance, those supporters of (or people willing to respect) SSM marriage, but who also argue for religious exemptions for individuals and institutions who for reasons of conscience cannot be personally involved in performing such ceremonies or granting such licenses. For that matter, I'm arguing for something even less than that: that one acknowledge that not everyone who emphasizes one or the other side of the debate is acting or speaking in bad faith, dishonestly, and so on. I was not addressing the merits of SSM directly. Incidentally, I take it you believe that even those who follow a religion that is "untrue" are entitled to religious freedom.

Posted by: Paul Horwitz | Dec 31, 2011 7:09:38 AM

"acting or speaking in bad faith"

This is a concern of mine as well. There is a sentiment on both sides that in effect assumes that a person can't simply be wrong or to have a blindspot, which most of us tend to have in some respect, but acting in bad faith. So, Justice "x" isn't just wrong, but a hypocrite.

As to Nancy, I think the better example there is someone who doesn't think same sex marriage exists (except as a legal fiction) but is open to discussing the issue with someone disagrees without bile and in fact might think civil unions or domestic partnerships are acceptable.

The first is I think what Paul Horwitz is mainly concerned about, the second would be a possible "moderate" position on the subject.

Posted by: Joe | Dec 31, 2011 12:55:11 PM

It will be no surprise to you that I feel the same way you do about this, Paul. I wonder if it is our role to try and mediate the conflict between the two sides. But it does seem sometimes that no one is interested in mediation. Both sides see it as a zero-sum game, as total war.

And frankly I am still learning what to say to people who simply value other things above religious liberty. Some on the left might see advancing gay rights or feminism as the only value. Some on the right might see the advancement of Christianity that way. They aren't wrong, at least that I can demonstrate. But how do we converse with them? How do we bridge that gap? That's our role, I guess. And I have a good book for you--perhaps you've heard of it, "The Agnostic Age"?? =)

Posted by: Chris Lund | Dec 31, 2011 8:23:59 PM

Thanks for your comments, Chris, and indeed all the comments. I confess I have a fairly moderate (natch) view of my "role": it's just to write and call it as I see it. I'm not sure I see myself as a mediator. But I do see us, as law and religion scholars, having an obligation to take seriously the existence of groups and individuals who are not interested in mediation or common ground, and not to fall prey to a kind of selection bias that comes from hanging out with fellow scholars who tend to occupy roughly the same common ground. I had a chat with a friend and colleague around the time of my Gilreath post, and he said quite fairly that he doesn't engage much with the extremes because there may be no good way to engage with them. I appreciate that, but I think we still probably have a duty to try and do so -- not so much to mediate or to change their minds, but more to explore and acknowledge those viewpoints.

Posted by: Paul Horwitz | Jan 1, 2012 12:34:14 PM

As Law and Religious scholars, one should understand, that a Good parent is one who desires that their children learn to develop healthy and Holy relationships and friendships that are grounded in authentic Love and thus respect the inherent Dignity of all persons, created from the moment of their conception, equal in Dignity while being complementary as male and female.

Posted by: Nancy D. | Jan 1, 2012 5:39:20 PM

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