Last week, I discussed the movement to establish homosexual “domestic
partnerships” as a legal equivalent to heterosexual marriage. I
concluded that the proposal was so irresponsible and dangerous that the
best reply might be to call it a madness, not a serious proposal. But,
as we know all too well, the movement against the traditional supports
for marriage is a serious one. Madness it may well be, but we should
still be sure to present the best argument we can against its claims. I
want to continue making that argument this week.
On what basis is it demanded that we must overturn this fundamental
institution? We are told that society’s legal preference for
heterosexual marriage constitutes discrimination against certain people
on the basis of their sexual behavior. But, is it illegitimate to
discriminate against people on the basis of their sexual behavior? To
answer this question we should first ask whether it is ever legitimate
to discriminate on the basis of any behavior. We shouldn’t be put-off
by the word “discriminate.” After all, most of us would still agree
that “discriminating tastes” in food or clothes are better than the
opposite. So, some kinds of discrimination must be permissible.
Perhaps, is it all right to discriminate among wines but never with
people? But, this can’t be right. For surely there are occasions when
we must be allowed to discriminate against people on the basis of their
behavior. What about people, for example, whose behavior toward the
property of others is simply to take whatever they want? Perhaps some
would consider it illegitimate to discriminate against those who engage
in stealing behavior — after all, that’s their lifestyle. But the
societal consensus that we should discriminate against those who steal
— that is, that we should distinguish between those who steal and those
who do not and treat the two groups differently — seems firmly
established. Jail time for robbers is presumably not yet prima facie
evidence of anti-robber bigotry.
Nobody seriously disputes that certain kinds of behavior are
legitimately taken note of by others as the basis for treating
differently those who exhibit them and those who do not. So, the
question must be which kinds of behavior justify discriminating
responses and which do not.
On this question, to put it mildly, opinions differ. And they differ
particularly when the behavior in question has something to do with sex.
Sometimes it seems as if we are approaching a time when those who
criticize adultery or sexual licentiousness of any kind will be called
to account for bigotry, i.e., illegitimate discrimination.
Underlying this disagreement, however, is a deeper agreement.
Everyone seems to agree that the only kinds of behavior which justify
discrimination are those which are unacceptable in a specifically moral
way and such that those who do not engage in them are justified in
taking active measures to discourage. On the one hand, whatever we
think of the “activists” who dump manure on the front yard of the
“capitalist,” we all understand that the capitalist was singled out for
this treatment because of the perceived immorality of his business
activities. Those, on the other hand, who think that discrimination on
the basis of sexual behavior is illegitimate, ultimately do so because
they think that questions of sexual behavior are not intrinsically moral
but are either more like questions of aesthetic preference or taste or,
perhaps, like skin color or height.
But even if some people today sincerely believe that to distinguish
among different sexual practices is not an intrinsically moral question,
their view is utterly revolutionary. There is hardly a system of
religious or other ethics worthy of the name that does not have as part
of its most fundamental precepts — moral precepts — the regulation of
human sexual behavior. Such regulations have been the warp and woof of
moral life, almost from time immemorial. It seems that the unbroken
experience of all human communities testifies to the common view that
for society to exist it is essential that there be an understanding of
the rules that will govern the family — and that these rules must also
govern human conduct in relation to sexual activity that is the basis
for family life. Discrimination against the violation of such rules, in
fact, is among the most deeply entrenched moral precepts in all people
and in all times.
Of course, those who wish to prevent discrimination against those
things that the moral law has traditionally condemned — those who wish
to end the social distinction between heterosexual marriage and
homosexual unions, for example — are quick to find their own moral
foundations to defend their claims. The claim is made, for example,
that all persons have the right to engage in any sexual activity that
pleases them. Some claim that sexual behavior is so important that,
like religion, choices concerning it enjoy a particularly protected kind
of freedom. Others simply say that their sexual behavior is, like race,
beyond their personal choice. Regardless, the result is the claim that
it is immoral for others to subject their sexual behavior to moral
examination and to the discriminating treatment that would result.
But, at the very least, we can see that such a prohibition on moral
judgments against various sexual behavior is a violation of the freedom,
even of the religious liberty, of those who view such behavior as wrong.
If we don’t have a right to act according to our religious belief by
forming judgments according to those beliefs about human conduct and
behavior, then, exactly what does the free exercise of religion mean?
Can the free exercise of religion really mean simply that I have the
right to believe that God has ordained certain things to be right or
wrong but that I can’t act accordingly?
Surely free exercise means the freedom to act according to belief.
And, yet, if we are not allowed to act according to belief when it comes
to fundamental moral precepts, then what will be the moral implications
of religion? None at all. But if we accept an understanding of
religious liberty that doesn’t permit us to discriminate the wheat from
the chaff in our own actions and those of others, haven’t we in fact
permitted the government to dictate to us a uniform approach to
religion? And, isn’t that dictation of uniformity in religion exactly
what the First Amendment intended to forbid?
The notion that we can treat “choice” of varieties of sexual behavior
as some kind of civil right entirely contradicts any respect for the
precepts of religious conscience and of moral judgment and behavior. If
we accept the view that we cannot form moral judgments about sexual
behavior — and act upon those judgments — then we will have undermined
the influence of freedom of conscience and religious belief in this
vital area of conduct and life.
As we discussed last week, the preservation of the marriage-based,
two-parent family is an issue of survival for the society as a whole.
The effort to preserve the family is the effort to preserve the
institution which by its very nature is the seedbed for fidelity,
self-sacrifice out of love for others and a host of other virtues —
without which, we cannot remain a decent people. Opposition to a
privileged position for the family is equivalent to opposing a society’s
systematic cultivation of fidelity because such cultivation is unfair to
For any society to survive, it must discriminate in favor of
behaviors that are morally worthy of choice and against those that are
not morally worthy of choice. This societal discrimination (in favor of
moral sanity) will necessarily take the form primarily of millions of
private choices about those with whom we and our children associate and
the kinds of activities in which we engage. These choices will be
discriminatory; at least, they will be if we are good parents. We will
not let our children play with certain children, and we will ourselves
avoid activities and relationships that we judge to be morally evil.
These are discriminatory choices that will have quite immediate impact
on those we choose not to associate with and this is as it should be.
But societal discrimination in favor of moral sanity will also take the
form of laws and public practices that openly prefer the morally upright
to the morally lax — and, particularly, laws and practices that have as
their explicit goal the special encouragement and cultivation of the
health of the marriage institution. We should discriminate on behalf of
marriage with vigor.
Such differential treatment of different sorts of behavior should not
— and will not — lead to a draconian attempt by government to alter
the private behavior of particular individuals. In the privacy of
bedroom and home, American citizens can do what they please so long as
it does not have implications for public law and the institution of
marriage. Defenders of the marriage institution have in mind no
persecution except the one directed at them — an effort to construct a
regime of law that will persecute conscience and persecute decency.
This can’t happen if the majority of Americans, who still believe in
families formed on the basis of sexual responsibility and respect for
the requirements of the institution, simply act according to common
sense and conscience. We should not allow ourselves to be intimidated
by specious arguments about “religious liberty” without a basis in
logic. We should move forward with common sense and with malice toward
none but with a view to making sure that we maintain those protections
that are needed for this vital institution of our lives.