Public Discourse http://www.thepublicdiscourse.com The online journal of The Witherspoon Institute Fri, 31 Jul 2015 11:00:05 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.3 Class of ‘59: Our Kids by Robert Putnam http://www.thepublicdiscourse.com/2015/07/15269/ http://www.thepublicdiscourse.com/2015/07/15269/#comments Fri, 31 Jul 2015 11:00:05 +0000 http://www.thepublicdiscourse.com/?p=15269 Our Kids, esteemed social scientist Robert Putnam compares the conditions and opportunities of the rich and the poor in Port Clinton, Ohio, his hometown, both in 1959 and today. But the government programs that Putnam proposes won’t solve a problem that starts with the family.]]>

Social scientist Robert Putnam grew up in Norman Rockwell’s America. The Port Clinton High School class of 1959 soared above their parents’ educational levels and standards of living. In the fifties, Port Clinton was one of those places where the American Dream was confirmed. Since then, things have changed. In his new book, Our Kids: The American Dream in Crisis, Putnam, now an eminent social scientist, compares the community that begot him and his classmates to the fragmented America of 2015.

Then and Now

Port Clinton in the fifties was a land of opportunity. Frank, Port Clinton’s “rich kid,” started out doing manual labor for his father’s company and later joined the Navy. The high-school quarterback, Don, was raised in a poor family. His dad worked seventy-five-hour weeks at factories and prioritized investments—homeownership and piano lessons—over his family’s food security. Upon graduating from college, Don became a pastor and football coach.

It would be easy enough to dismiss Putnam’s recollections with a condescending smile. But Putnam is in the company of many other memorialists who confirm that mid-century America really was different. Culture was more compressed; a handful of TV stations and popular magazines depicted largely the same worldview. Hard evidence on the rate of socioeconomic mobility at the time is thin. The landmark study of mobility trends only goes back as far as people born in 1971, when Putnam was 30.

Port Clinton still exists, but it’s a Pottersville now. Its affluent families have little connection to the town. Most factory jobs are gone. Areas that were once middle class are now lower class. In Our Kids, we are introduced to David, a teenage father interviewed by Putnam and his research partner Jennifer Silva. By the ripe age of 18, David had worked at a diner and in a factory; he had landscaped and flipped burgers. But none of these jobs stuck. David’s list of anti-social accomplishments is even longer: juvenile crime, alcohol, drugs, broken probation, jail time, suffering parental neglect, and running with a bad crowd.

Putnam’s claim is that David is emblematic of today’s lower class—a lower class much larger and worse off than that of the 1950s. To help this growing disadvantaged class, Putnam prescribes various progressive government policies.

Top and Bottom

Putnam’s diagnosis echoes Charles Murray’s 2012 book Coming Apart, which dragged the ugly divergence in American lifestyles into the spotlight. Today’s college-educated people, Murray showed, still lead 1950s-style lives. They marry before having children, work full time, divorce at low rates, and attend church regularly. The less educated, however, have changed. They used to live very similar lives to the affluent and educated, just with less money. Now their families are in flux, they are less religious, and the men are less likely to work.

Putnam, often using the same sources, confirms and develops Murray’s account by emphasizing the divergence in childrearing trends. The rich are much more intentional in rearing their kids and deploy sophisticated approaches to the “rug-rat race.” But poor Americans struggle to translate good intentions for their children into educational achievement. More fundamentally, they lack the basic frame of family life and good behavior that Putnam recalls among the poor families of 1959.

In Our Kids, Putnam describes the divergence in each key area of child development: families, parenting style, schools, and community life. In each case, he tells illustrative stories of a rich and a poor family. Behind each pair of families is a forest of statistics and studies selected to support their stories. But Putnam does not introduce any new data work of his own, so his most ambitious claim—that opportunity in America has changed for the worse since the fifties—lacks rigorous evidence.

The stories are easily the most compelling part of the book. Putnam brings the families to life and is forthright, though not judgmental, about their advantages and follies. The reader finds himself rooting for the poor kids—won’t they catch a break? Maybe they won’t get rich, but will they at least find love, personal fulfillment, or a steady job?

Spoiler alert: Some do, but most don’t.

The poor kids face substantial obstacles, starting with their parents. David’s mother was “never there” and his father wound up in prison. Kayla’s birth was “kind of planned” and she entered a “confusing web” of step-siblings. Elijah’s parents were alternately absent or “punitive.” Lola and Sofia’s parents were gang members. Lisa and Amy’s fathers were substance abusers and their mother suffered from multiple sclerosis and depression. Not one of the families is remotely similar to that of Don or the other PCHS ’59 graduates whom Putnam interviewed.

Half the poor and poorly-raised millennials in Our Kids further sank their own prospects with teenage drug use and childbearing. Elijah “got high and drunk every night,” committed arson, and still, in Putnam’s estimation, “seems addicted to the adrenaline rush of violence.” It’s a testament to Putnam’s writing that Elijah comes across as likable and human.

Of Putnam’s interviewees, the one with the best chance to escape poverty is probably Sofia, a Latina in Orange County. Raised by her grandparents and older sister Lola, Sofia displayed academic aptitude early. But her American dream was foiled by “apathetic and unhelpful” public school teachers. Sofia fell too far behind the “smart kids” to be deemed worthy of serious instruction. When Putnam interviewed her, she was in community college, but remained pitifully ill-informed about the contours of the US educational system.

What about the Middle?

Our Kids, unfortunately, says very little about the middle class. The affluent families are upper-middle class at least: a few managers, a wealthy contractor, an architect, and an independent consultant. Putnam undersells the one middle-class family we meet as “working class.” The mom, Stephanie, is a retail store manager working full time, and her husband drives a forklift. Those two incomes under one roof places a household above the US median. Stephanie and her husband live in the Atlanta exurbs. Stephanie’s kids (all from her first marriage) are a mixed bag—a “golden boy,” a recent community college grad, and two “challenge children.”

Although Putnam does not emphasize the fact, Stephanie’s family is the face of today’s middle class. There are more American families like Stephanie’s than like all the other families in Our Kids combined. Perhaps the next book in this field will complement Putnam’s and Murray’s accounts, both of which focus on the top and bottom of the distribution, by examining social trends in the middle class.

Are More Government Programs the Solution?

The menu of policy options suggested in Putnam’s final chapter is stunningly disconnected from the problems he describes. Most of Putnam’s proposals recommend that the government put more money into the hands of poor people and public school teachers. Maybe that is good policy, but the stories of Our Kids, at least, comprise a persuasive argument that it is not.

In Port Clinton, 1959, children in rich and poor families were raised the same way, went to school together, and had the same range of outcomes. Government is visible in Putnam’s Port Clinton only as a school system, the military, and presumably the inspectors who shut down insalubrious company housing in which one family lived.

The nature of poverty has changed. Although Don’s father held two full-time factory jobs in the 1950s, his family often did not have enough to eat. But fifty years later, the teenaged David has enough spending money to purchase drugs and alcohol. Don had moved away by the time his family acquired a TV, while David plays video games frequently. David has gotten points on his license for speeding; Don’s family didn’t own a car. David’s failure to thrive as Don did cannot be attributed to a lack of money.

In 1959, poverty was material deprivation. For millennials, material deprivation is rare. Elijah, the grocery bagger with a hunger for violence, wears Jordans. Kayla has a TV in her bedroom. Amy and Lisa support teenage drug habits despite being on welfare. If material deprivation always closed off opportunities, the poor kids of the Class of ’59 would have had much worse outcomes than the poorly raised but adequately fed children of the millennium.

Not only were the poor millennial kids better off materially, they also encountered government representatives and programs designed specifically to help them. Kayla got attention from a school social worker, was put into a special school program, and later received Job Corps training. A librarian “helped her arrange financial aid” to a community college. She and her boyfriend live off her father’s disability benefits. David got into “a ‘career-based intervention class.’” Lisa and Amy’s family income derives from “various public welfare programs.” Amy got into a magnet school and, after bad decisions with drugs and boys, a high school for young mothers. Elijah was born into the safest and most structured environment a government can provide—an Army base in Germany—but grew up beset by crime and chaos. If twenty-first century America has failed its children, it is not for lack of government programs.

In Our Kids, the only subjects who would clearly have been aided by better academic instruction were Lola and Sofia. They were raised well and connected in their community by volunteering at an AIDS clinic. What was missing was attentive, focused teaching. But was such teaching even possible in a school where students routinely “took Ecstasy and drank” in class? Would paying teachers more or giving students’ families more money have helped? Lola and Sofia attended their terrible high school only because the other choices were too distant, yet Putnam is dismissive of school choice when he makes recommendations for education.

For the rest of the kids, better-paid teachers and free school sports simply can’t counteract the negative impact of disintegrating families.

Parenting Is A Necessity

Bizarrely, personal actions and choices that might mend the social fabric do not interest Putnam. He recommends as though individual behavior were fixed, despite his own rich portraits of lives full of momentous decisions. When he dutifully checks off the possibility of expanded local mentorship projects as a response to social disintegration, he does so in the passive voice. By contrast, the preceding paragraph contains commands: “Close this book, visit your school superintendent . . . Insist that pay-to-play [school sports] be ended.” For Putnam, money is what matters.

But, if money is not the solution, then what is? Some pessimists, such as Isabel Sawhill, pin their hopes on birth control. But Sawhill’s movement to promote teenage use of long-acting reversible contraception, and movements like it, must contend with the fact that the last major increase in contraception availability led to an historic rise in out-of-wedlock births.

As a reader, I expected that Putnam would exhort me to tutor, attend a diverse church, babysit for a single mom, move to a poorer neighborhood—to take action. After all, his fond memories of Port Clinton emphasize its warm social cohesion. Perhaps Putnam assumed the exhortation to personal action was obvious, and omitted it. If so, he missed an opportunity to turn theoretical discussions of inequality into a non-political social movement toward renewed community.

Putnam’s proposals for government transfers, better-paid teachers, and free sports teams may represent helpful stepping stones to children who are socially secure and were raised in a stable, disciplined home, as his poor classmates were. But the children of Our Kids demonstrate painfully that outside influences are too little, too late for those from broken homes.

In 1959, eight out of eight kids in Our Kids had parents who had been present throughout their lives. In 2015, that was true of two out of twelve. Putnam does not have a plan that will help the kids whose parents have fled.

Salim Furth, Ph.D., is a research fellow in macroeconomics at the Heritage Foundation and is learning to be a father. His opinions do not necessarily reflect those of his employer.

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Conservatives and Transgenderism: A Response to Jennifer Gruenke http://www.thepublicdiscourse.com/2015/07/15401/ http://www.thepublicdiscourse.com/2015/07/15401/#comments Thu, 30 Jul 2015 11:00:46 +0000 http://www.thepublicdiscourse.com/?p=15401

Conservatives should think carefully about sex and gender. There is a formidable edifice of academic work on the topic, mostly being conducted in departments that conservatives (perhaps rightly) don’t take seriously and don’t care to touch. But like it or not, our culture has imbibed deeply of gender ideology. Conservatives can’t afford to be unfamiliar with the new language and its metaphysical presuppositions.

Therefore, I welcome Jennifer Gruenke’s recent essay in Public Discourse, wherein she describes the rare intersex condition “from a biological point of view” and argues that, given the scientific facts surrounding many of these cases, conservatives should take a more tempered approach toward transgenderism. As long as other possible explanations of gender dysphoria are ruled out, she argues, conservatives should give transgender people the benefit of the doubt and take their introspective reports at their word. Because there is a plausible genetic account of transgenderism, conservatives should assume that the transgender person’s professed divergence between bodily sex and reported gender is a result of some variety of intersex condition.

Unfortunately, I do not find Gruenke’s case convincing, for it relies on an unsupported assumption and does not succeed in answering a key objection.

Gruenke’s Account

Gruenke’s account is as follows. All embryos start out, in a sense, as “female.” In males, the presence of certain hormones initiates or halts the default developmental pathways. If the right hormone is not produced, or if cells become unreceptive to it, then some or all of the pathways relevant to sexual phenotype may halt or fail to initiate at all. But since different pathways are regulated by different hormones, there is a possibility of phenotypic divergence: In a fetus with XY sex chromosomes, one part of the body might “masculinize,” in accordance with the “normal” pathway, while another part of the body does not.

This latter, unmasculinized part of the body might be the brain. In this case, Gruenke suggests, the person will grow up with a “female” brain. Therefore, it’s understandable that such a person would report being a female—having a female gender identity. But such a person would look just like a transgender person: an apparent male who reports being a female. Therefore it is plausible, Gruenke argues, to suppose that transgenderism can arise as a result of a straightforward mutation.

Gruenke does not deny that, as in some cases recently recounted at Public Discourse, divergence between bodily sex and introspective report might be the result of underlying psychological trauma. In those cases, she agrees, treatment should consist of therapy, not surgery. But, she claims, there is reason to believe that psychological trauma does not explain all cases of transgenderism. Transgenderism as a variety of the intersex condition should be our default assumption, where psychological trauma is not apparent, and gender-reassignment surgery might be an appropriate corrective.

Paradigm Cases

There is an assumption implicit in Gruenke’s argument. Her account relies on paradigm cases to determine what is constitutive of maleness and femaleness: which primary and secondary sex characteristics are male and which female, what a male or female gender identity is, etc.

Gruenke writes:

I will follow the convention of using the word “sex” to refer to the sexual characteristics of the body exclusive of the brain, and “gender” to refer to the subjective, internal experience of being a male or female. Sexual characteristics are either primary or secondary. Primary sexual characteristics develop prenatally and directly relate to reproduction (for example, having testes vs. ovaries). Secondary sexual characteristics develop at puberty, and may or may not relate to reproduction.

Suppose that transgenderism is possible, and one’s gender can diverge from one’s sex. It follows that, say, some females have male reproductive organs; some females have penises. But then what makes those reproductive organs male?

One cannot avoid appealing to paradigm cases, to what usually and typically happens, where “usually” and “typically” have both descriptive and normative force. We can see this in the truth of what some philosophers have called Aristotelian categoricals. A proposition like “Dogs are four-legged” does not claim (falsely) that all dogs have four legs; nor is it so trivial as to state that some particular dog has four legs. It rather states what is normal or typical for dogs.

In the passage quoted above, Gruenke is relying on such norms. Which sex characteristics are male depends on the role that they typically play in reproduction—or the fact (if they are not directly related to reproduction) that they occur alongside male primary sex characteristics. What counts as a mutation, or an inhibited/activated male or female developmental pathway, depends on what occurs normally.

This account of sex, then, has much in common with the account of sex identity that Christopher Tollefsen recently introduced at Public Discourse. Because human beings reproduce sexually, human beings are either male or female in the typical case, and their sex corresponds with the function that their reproductive organs can play in coitus. There is no other principled way for picking out the sexes.

As Tollefsen argues, sex being so defined, it is not even possible to change one’s sex, and attempts to do so will mutilate otherwise functional organs. So long as the practice of medicine is correctly understood as the practice of restoring human bodies to their proper functioning, gender-reassignment surgeries will fall outside the domain of medicine. The conservative can happily grant Gruenke’s biological account, for the sake of argument if not because it is true—there is a fair bit of disagreement over the science and how best to interpret it, after all. But Gruenke’s account, in what it presupposes, offers only reasons to accept Tollefsen’s argument, while offering nothing to resist his conclusion.

An Objection Unanswered

It is also worth looking at Gruenke’s response to the proposed analogy between transgenderism and psychological disorders such as anorexia. An anorexic person sees herself as being overweight, even though she is in fact underweight.

It would be silly to doubt the honesty of an anorexic person; though we think there is something wrong with her introspective report, we do not doubt that there is something behind it, that she makes it for some reason. The anorexic person might have brain chemistry similar to that of someone who is overweight. In fact, the chemical imbalance might be a result of some heritable mutation, shared by one’s identical twin. But an anorexic person’s introspective report is nevertheless incorrect.

Honesty, brain chemistry, and genetics are not sufficient to show that someone’s introspective report is correct. Nor are they sufficient to show that bodily change in accordance with the introspective report would be warranted.

Gruenke does not appreciate the force of this objection. She writes:

the analogy between people who are anorexic and those who are transgendered breaks down when we consider the respective goals of the two relevant parts of the brain. The part of the brain that regulates body weight exists so that a healthy weight can be maintained. There is a range for healthy body weight that is the norm; someone with anorexia wants to achieve a body weight that will lead to electrolyte imbalances that can be fatal.

But this first part of the response concedes the force of the objection and merely changes the subject. Again, the objection aims to show the insufficiency of honesty, brain chemistry, and genetics. To point now to some other difference (what perception of gender and perception of weight are supposed to regulate) between transgenderism and anorexia just changes the subject. It concedes that Gruenke’s biological account does not itself show that gender-reassignment surgery is an appropriate response to transgenderism; it concedes that something else is needed.

Moreover, this part of the response shares a flaw with many other responses to proposed analogies: It finds a difference between two things without arguing that it is the decisive or relevant one. Any two things that are analogous in some respect are also different in some other respect. That’s the point of an analogy.

Something else is needed—but what? The response cites a problem with anorexia: The brain is supposed to be regulating body weight. In anorexia, it does not succeed in doing so, and that is dangerous for the individual. Gruenke continues:

Thus in anorexia, subjective perception is clearly at odds with proper function of the human body. On the other hand, the part of the brain that contributes to the perception of gender doesn’t regulate anything, but exists just for psychological identity. One can survive, and even reproduce, without having any gender identity at all.

Note that the insufficiency of the mutation account is still tacitly granted. What’s needed is that, furthermore, the abnormal brain chemistry does not lead to bodily harm.

But this response begs the question against an account of sex and gender identity like Tollefsen’s. For what constitutes bodily harm? If a man’s female self-perception leads him to undergo surgery that renders him infertile, then bodily harm has occurred.

Moreover, we can apply Tollefsen’s account of gender identity too. For Gruenke claims that “the part of the brain that contributes to the perception of gender doesn’t regulate anything, but exists just for psychological identity.” In the paradigm case, sex identity and gender identity match up; this paradigm unity is not pointless. Gender does not merely serve “psychological identity,” then, but modulates how truths about our sexuality are conveyed publicly.

Ordinary Language and Gender

In debates about transgenderism, phrases like “feeling like a woman trapped in a man's body” and “the subjective, internal experience of being a male or female” (Gruenke’s definition of “gender”) are common. But the meaning of these expressions is not immediately clear.

Do you have a feeling of being a man, or a feeling of being a woman? These feelings, if they exist, are not like the feeling of being pinched, the feeling of a hot stove, or the feeling of anxiety. Unless you are “genderfluid,” you have only ever felt like a man or felt like a woman: not both. You have no point of contrast. How do you know that this feeling is the feeling of being a man, as opposed to that of being a woman? Indeed, such a feeling would be an odd sort of feeling—for if a given person felt it persistently, throughout his life, with no point of contrast, then it would be pointless. It would not be a sort of signal, like our senses of pain and of taste are.

To use Thomas Nagel’s famous expression, there is something that it is like to be a bat, and there is something that it is like to be a human, but there is—as far as I can tell—nothing it is like to be male.

Perhaps these expressions are supposed to be elliptical for something, such as possessing a cluster of desires normally possessed by women. Someone inclined to say that he “feels like a woman” might variously desire to, say, wear dresses and high heels, to act like a woman and be treated like a woman. More specifically, the transgender person experiences these desires as frustrated. In that sense, he does not actually feel as most women feel, for even women who want to wear dresses and high heels generally experience those desires as fulfilled.

Now, I don’t want to deny that there is something, objectively speaking, to manhood and womanhood. To cite a few stereotypes, men might tend to be more competitive, women more nurturing. Boys might tend to prefer to play with cars, and girls with dolls. Men and women are sexually different, and (if Tollefsen is right) should develop a gender persona in accordance with their sexual identity. The point is not whether any of these things just listed is true, but that the denial that there is “something it is like” to be a man is not the same as saying there is nothing to manhood.

An Analogy with Marriage

This is why Tollefsen’s accounts of sex identity and gender identity are particularly attractive. What is fundamental is sex identity, which is defined in relation to procreative function. Gender is the social and psychological side of this; one adopts a gender persona in order to express truths about one’s sexuality, and this is essential to being part of a community where one’s sex identity is relevant.

There is a crucial difference between Tollefsen’s account of gender and Gruenke’s account. Adopting a gender persona is not given. It is something that is developed in response to one’s given sexual identity, which provides a sort of vocation—not a fully determinate life plan, but a structure nonetheless. Usually, as Tollefsen notes, society has a lot that is positive to contribute to development of a gender identity. There can sometimes be psychological factors at play that make it more difficult—sometimes extremely difficult—to develop one’s gender persona. Yet cultivating a gender persona remains, in a relevant sense, an active task.

Putting sexual identity in the driver’s seat has important advantages, especially where marriage is concerned. Our reproductive faculties are ordered to reproduction and the education—the rearing—of offspring. A man beset by salacious sexual fantasies, who desires to break apart his family in order to pursue them, ought to do otherwise because his sexual identity is ultimately ordered to his family’s good. His gender persona should be formed to the end to which his sexual identity “calls” him: responsible fatherhood.

Likewise, the orientation of the reproductive powers to reproduction provides a powerful argument that we should seek to conform our gender identity to our sexual identity—not the other way around.

Gregory Brown is a senior mathematics major at Swarthmore College and an editorial intern at Public Discourse.

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Rethinking the Conservative Approach to Transgenderism http://www.thepublicdiscourse.com/2015/07/15377/ http://www.thepublicdiscourse.com/2015/07/15377/#comments Wed, 29 Jul 2015 11:00:34 +0000 http://www.thepublicdiscourse.com/?p=15377

Transgendered people—people who appear to be one sex but report the experience of being the other—have been in the news lately. The conservative reaction to this phenomenon is, in some respects, puzzling. Conservatives do not take these introspective reports seriously; they believe that people seeking sex-change operations (now more often referred to as sex-reassignment surgeries or gender-affirming surgeries) are almost uniformly confused. Their approach to transgendered people is often polite, even compassionate, but always firm in the conviction that transgendered people are mistaken.

Now, subjective experience is often, but not always, reliable. In this case, there are good scientific reasons for supposing that subjective experience of gender can legitimately diverge from the sex of one’s reproductive organs, so conservatives should be cautious in accusing transgendered people of confusion. To show why this is true, I will show that developmental biology demonstrates that there are multiple pathways of sexual development, that one of those pathways is in the brain, and that the pathways of sexual development can diverge from one another.

I will follow the convention of using the word “sex” to refer to the sexual characteristics of the body exclusive of the brain, and “gender” to refer to the subjective, internal experience of being a male or female. Sexual characteristics are either primary or secondary. Primary sexual characteristics develop prenatally and directly relate to reproduction (for example, having testes vs. ovaries). Secondary sexual characteristics develop at puberty, and may or may not relate to reproduction. For example, breast tissue in females may eventually provide food for an infant, whereas facial hair in males does not contribute to reproduction. The biological categories of female vs male sexual characteristics are defined empirically. That is, most babies with male primary sexual characteristics go on to develop a particular set of secondary sexual characteristics.

Sex can be male, female, or in rare cases, somewhere in between, and can be analyzed scientifically. As I will explain, gender appears to depend strongly, but not exclusively, on the brain. Analysis of the brain can allow an outside observer to make a reasonable, albeit imperfect, guess about a person’s gender.

Mismatched Pathways of Sexual Development

Except in cases of monozygotic twinning, humans reproduce sexually. This requires some individuals to be male and others female. The biological triggers for an individual to be either male or female vary from species to species. For most mammals, including humans, females usually have two X chromosomes; males usually have an X and a Y chromosome. But for birds, this situation is reversed, and for many species of reptile, sex is determined by egg incubation temperature. Therefore differential sexual development in the animal kingdom is not reducible to a common physical trigger. Furthermore, some species, such as the clownfish, can change their sex over the course of their lifespan. Thus it is a mistake to think of the sex of an individual organism as fixed in every case for every species.

Humans, of course, are not fish, and we don’t observe our fellow humans undergoing a natural change from one sex to the other. But individual humans do go through a stage of development in which we have both male and female physical parts at the same time. At about six or seven weeks of development, a human embryo clearly has a human body. It has a head with eyes and a torso with limbs. Fingers and toes are beginning to develop but have not yet separated. Internal organs like the heart, brain, and liver are present, if incompletely developed. Not surprisingly, given that these other organs are well into their development, the reproductive organs are developing, too. But instead of an incompletely developed version of either male or female reproductive structures, the embryo has both. It has one set of tubules that can develop into the uterus, fallopian tubes, and the upper third of the vagina, and another that can develop into a series of tubules that transport sperm. The gonads are also present, and can develop into either ovaries or testes.

As the human embryo moves forward from this bipotential state, the default developmental pathway is female. The Y chromosome normally initiates a number of different pathways that inhibit the development of female structures, instead masculinizing the gonads, genitals, and brain. It is possible to have a mismatch between chromosomal sex and bodily sex. For example, in cases of the intersex condition called complete androgen insensitivity syndrome (CAIS), a human with XY chromosomes develops into a girl due to the lack of androgen receptors; the androgens (testosterone and others) that are present cannot affect their development. At puberty, these girls develop physically as women and have a female gender identity. They typically look even more feminine than XX women, who, at least, are sensitive to the small amounts of testosterone that they have.

Their condition may not be discovered until they fail to menstruate as teenagers. They have no uterus and have testes rather than ovaries. In this case, the pathways of sexual development were mismatched. The male pathway was activated for the gonads and the embryonic structures that give rise to the uterus, but the female pathway was activated for the brain and external genitalia.

Women with CAIS are easily diagnosed as intersex in early adulthood, but more subtle types of intersex conditions might go unnoticed. In one case, the XY karyotype of a fetus was determined during a check for chromosomal abnormalities. But at birth the baby turned out to be a girl with normal uterus and ovaries. It appears that in her case, all of the pathways of her sexual development were female, due to a mutation that affects them all. If she had not had her chromosomes tested, she might not ever have known that she is intersex.

Sexual Development of the Brain

So what do intersex conditions have to do with being transgender? One of the pathways of prenatal sexual development is in the brain. There is good evidence that babies are born with predispositions to consider themselves male or female, that is, to have a gender. Some male infants who lose their genitalia in accidents have been reconstructed as girls, with little success. That is, they often grow up to experience the same thing that transgendered people experience—their perception of their own gender does not match their apparent sex.

Further evidence that infants are born with a predisposition towards a gender is seen in cases of an intersex condition called 5-alpha reductase deficiency (5-ARD). In 5-ARD, chromosomal males lack the hormone that masculinizes the genitals, so they appear to be girls. But in most cases, the child will identify as a male, despite being born with female genitals and, for that reason, being raised as a girl. It appears that testosterone masculinizes the brain, but not the genitals, during male embryological development. Individuals with such a mutation end up with some parts of the body (testes, brain) masculinized but others (genitals) following the default female pathway.

Other data support the conclusion that transgenderism has a genetic basis; there is a strong concordance of occurrence among identical twins, but not among fraternal twins. That is, if one identical twin is transgender, then, in more than a third of cases, the other will be, too. Although we might expect concordance to be higher, there is precedence for identical twins with intersex conditions in which one twin is more severely affected than the other. Because identical twins live in similar environments, we might think that some of the concordance is due to shared environment. But fraternal twins also share environment, and the study that found strong concordance for identical twins found no concordance at all for fraternal twins. Human neurology is complicated.

Thus gender appears to be influenced by genes but not absolutely determined by them. Specific mutations leading to transgenderism have not been discovered, but that is what we’d expect considering its rarity; one report from Sweden, where transitioning from one sex to the other is relatively well-accepted, shows that over 30 years (1972-2002), only 0.006% of the population over age fifteen requested sex reassignment.

Possibly Reliable Introspection

If we put the pieces together, we know that there are multiple pathways of sexual development and that they are not all regulated together. One pathway is the development of the gonads into either ovaries or testes; another is the development of external genitalia, and another is the development of the brain to be predisposed toward one gender. We know that the gonads and external genitals can differ from each other, and that both can differ from chromosomal sex. So we ought to expect to find individuals whose brain pathway differs from the other pathways. Given the mutation rate, the size of the genome, and the number of humans in the world, if a molecular pathway can be mutated without killing the individual, the mutation will most likely show up in someone. And I would predict that people with such a mutation would look just like cases of transgendered people.

Consider a case study of a genetic male with normal male genitalia who, since childhood, has had the first-person perception of a female identity. It’s possible that this is a case of confusion about identity rooted in psychological trauma. But it’s also possible that this person has some mutation that prevented the masculinization of the brain. The biology leads us to expect that there will be some people in the latter category, even if we don’t currently have a genetic test to identify these people. On the other hand, psychologists do have some ability to identify trauma-induced identity disorders, so in the meantime it’s possible to eliminate people from the former category. We might first look for signs of dissociative disorders or schizophrenia, for instance.

But unless such disorders seem to be the problem, isn’t it most likely that this individual has some intersex condition, one in which the brain does not match genetic sex, in a way that is—currently—only discernible through introspection? Given how little is known about these rare cases, a high degree of certainty is not possible, but inference to the best explanation seems to warrant this conclusion.

To be sure, our subject would still be a genetic male with Y chromosomes in the brain cells. But absolute reduction of sex to the sex chromosomes is not supported by the biology, for as we have seen above, with the right mutation, one could have a Y chromosome but an otherwise unambiguously female body, including ovaries and uterus. For that reason, chromosomal reductionism is an unacceptable account of sex.

An Objection

Now, it is worth considering a more principled objection from the conservative front. Some might contend that, if we accept first-person accounts with respect to gender identity, we will have no principled reason to reject them in other cases. For instance, the first-person report is unreliable in the case of anorexia.

An anorexic person is convinced that she is overweight, even when she is already underweight. This, it might be claimed, is analogous to the case of a transgender person. A transgender person might sincerely believe that he is female, but that does not mean that he is not mistaken. Indeed, the objector might press that brain chemistry cannot solve this problem. For suppose that an anorexic person does have the brain chemistry of an overweight person, and this similarity is accountable in terms of genetic factors; in such a case, we would not say that the girl really is overweight, despite appearances. We’d say that she is really underweight, personal conviction notwithstanding. Anorexia just is a condition characterized in terms of a desire to be thin in spite of already being thin; her brain chemistry and emphatic beliefs don’t defeat this. Moreover, the anorexic person is not correct merely because her reports match her brain and indeed her brain (if not the rest of her body) developed along pathways characteristic of overweight people. Why, our objector continues, can’t a transgender person be similarly mistaken? The fact that a transgender person is making reports in line with her neurological development does not establish that she cannot be incorrect.

But the analogy between people who are anorexic and those who are transgendered breaks down when we consider the respective goals of the two relevant parts of the brain. The part of the brain that regulates body weight exists so that a healthy weight can be maintained. There is a range for healthy body weight that is the norm; someone with anorexia wants to achieve a body weight that will lead to electrolyte imbalances that can be fatal. Thus in anorexia, subjective perception is clearly at odds with proper function of the human body. On the other hand, the part of the brain that contributes to the perception of gender doesn’t regulate anything, but exists just for psychological identity. One can survive, and even reproduce, without having any gender identity at all.

I am not arguing that introspective reports of sex are infallible. But according to some studies, a majority of people who undergo sex reassignment surgery are happy with the decision. There is a real danger of misdiagnosing someone as transgender and doing surgery that does them harm, and conservatives have been correct to raise this concern in the face of those who are prepared to affirm every request. In giving the impression that this is a decisive reason against every desired sex-reassignment surgery, though, some conservatives have overstepped. Trying to change a legitimate self-perception of gender also does harm.

Jennifer Gruenke is professor of biology and director of the Hammons Center for Scientific Studies at Union University.

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Science Contra Hubris http://www.thepublicdiscourse.com/2015/07/14572/ http://www.thepublicdiscourse.com/2015/07/14572/#comments Tue, 28 Jul 2015 11:00:45 +0000 http://www.thepublicdiscourse.com/?p=14572

In a recent essay, “The Recovery of Human Nature,” James Kalb discusses the contemporary effort to deny the existence of human nature and, beyond that, Nature herself. He observes that many people see Nature as a mindless, blind, and oppressive force that needs to be dominated by technology. He writes, “That line of thought leads to the insane view, which is now entirely mainstream, that we can advance the human good by destroying all substantive concepts of what people naturally are.” He criticizes a simplistic scientism that only recognizes physical knowledge as legitimate. “Human beings and societies are complex,” Kalb observes. “They involve meanings and other aspects of reality that transcend the purely physical.”

As far as it goes, Kalb’s critique is on the mark, but I believe that matters have degenerated beyond his analysis. We confront more than radical positivism. That would leave us with respect for a scientific view of Nature. Increasingly, however, science too is rejected, and with it, Nature in her entirety.

The Modern Rejection of Nature

Consider abortion. The argument that a baby inside his mother’s womb is less than a human being rejects a scientific perspective on Nature. From the moment of conception, the regulatory machinery of the cell is in place and programmed to develop fully, given a suitable environment. To reject the humanity of an unborn child is to reject science. This is not to say that science precludes one from arguing that certain humans should be put to death, but it does say that, in the case of abortion, science provides no ontological demarcation between those a society decides should live and those it decides should die.

To a certain extent, it is in man’s disposition to reject Nature. He does not accept his environment as given, but restructures it to suit his needs. As he matures through the centuries, he moves from forming a hut with readily available materials to protect him from the weather, to building an aqueduct to supply a city with water from many miles away, to harnessing nuclear fission to provide a virtually boundless supply of energy. With a never-ending expansion of technology seemingly lying before him, it is not surprising that a person can envision changing both his environment and himself to suit his every whim and find any limitation to be an unjust constraint of his freedom.

But this “freedom” is not the Augustinian freedom manifested in one’s liberation from the chains of his passions; rather, it is the freedom from constraint upon one’s submission to his passions. It is the freedom to express and manifest an unchecked will. Nicholas Berdyaev tells us where this freedom leads: “Freedom, insofar as it is self-will and self-affirmation must end in a negation of God, of man, and of the world, and of freedom itself.” We should not be surprised that the rejection of God and of Nature often go hand in hand.

Can this glorification of self-will be laid at the door of science? No doubt the extraordinary achievements of science and technology since the “scientific revolution” of the seventeenth century have led some scientists—and many more ersatz scientists—to justify a prideful rejection of God and a disparaging arrogance toward Nature. But many of the greatest minds, including Isaac Newton and Albert Einstein, have stood in awe before the magnificence of Nature.

When asked by a sixth grader, “Do scientists pray?” Einstein responded, “Every one who is seriously involved in the pursuit of science becomes convinced that a spirit is manifest in the laws of the Universe—a spirit vastly superior to that of man, and one in the face of which we with our modest powers must feel humble.” (One must keep in mind when reading this that Einstein’s God is Spinoza’s God.)

The root of modernity’s rejection of Nature does not lie in science. In his Meditations on First Philosophy (1641), Descartes posited a radical subjectivity. To Descartes, the world is one of his own imaginings. These constitute the “true and immutable nature” of his universe. A pervasive sense of unreality permeates the pages of his Meditations. Descartes sits alone, isolated with his own thoughts, circling deeper and deeper into nothingness until even he disappears into his own thoughts, leaving only a disembodied thinking thing.

The Humbling Intersubjectivity of Science

Science rejects this isolation, this freedom set in nothingness. Science depends on reason, but it does not trust reason alone. Scientific validity is judged by the accuracy of quantitative predictions. These are supplied by reason, but their veracity is determined by their concordance with Nature. Arguments and understandings carry no weight in themselves. They must stand the test of observation. Two people can argue interminably over opposing theories. But which one makes better predictions? Science rejects subjectivity in favor of intersubjectivity. It is communal.

Because science is limited in its claims, it has a cautioning effect across the entire domain of human thinking. Good scientific training is strenuous and humbling, because science is unforgiving. Suppose a large body of opinion supports some theory yet to be tested—nay, suppose everyone supports the theory. Predictions are made, and they fail. Well, that’s that. No excuses are permitted. The theory must be rejected.

To spare society from the imposition of subjective pipe dreams, the prudence characteristic of valid scientific thinking needs to permeate the entire intellectual order. One need only think of the toll in human suffering resulting from empty phrases like Rousseau’s “general will” when men of action like Robespierre impose such subjective delusions upon society. Certainly prudence is not restricted to science, but to the extent that science is the dominant paradigm of our time, it is imperative that it serve as an exemplar of sound judgment.

The Danger of Shallow Draughts

Science encounters huge mathematical, computational, and experimental impediments when trying to model the behavior of extremely complex systems such as a human cell. Our practical aim is to perturb the system to favorably alter its behavior, such as stopping the proliferation of cancerous cells. We are bedeviled by totally unexpected responses, because our knowledge is uncertain, and complex systems can react strongly to small disturbances, often in ways not readily connected to the disturbance. This is the nature of Nature. The sensible person recognizes human limitations by proceeding with caution and not trying to overly fine-tune the system.

In contrast, the impetuous person reasons from the particular to the general without thought as to whether his small sample is sufficiently representative of the whole or whether his simplified conception of the whole provides a sufficient basis for reasoning about the whole. This intellectual type appears everywhere, infecting science with grandiose theories possessing neither precise mathematical formulation nor demonstrable predictive capacity. They swarm like locusts in politics and the burgeoning bureaucracy, where they desire to transform humanity into their fanciful conceptions. They are unsatisfied with merely external control. They want to control human thought and language under guises like inclusiveness, social justice, and political correctness.

To a significant extent, such banalities owe their ascendancy to a dysfunctional “education” system that stunts young minds with platitudes, leaves them ignorant of the summits of their civilization, and fails to instill in them the virtues necessary for a viable republic. Perhaps it would be wise to recall the words of Alexander Pope with which high school English teachers try to impart humility to their students:

A little learning is a dangerous thing;

Drink deep, or taste not the Pierian spring:

There shallow draughts intoxicate the brain,

And drinking largely sobers us again.

How shallow the draughts have become!

One need not be a scientist to appreciate the foolhardiness of naively interfering in a complex system. Edmund Burke explicitly appraised the peril of tampering with the functioning of a political system. Fyodor Dostoevsky addressed the blindness of those with utopian visions of human nature. Is not Dostoevsky’s Peter Verkhovensky a perfect archetype of so many modern intellectuals? “He first invents himself a man and then lives with him.” Our mathematical understanding of complexity validates the apprehensions of Burke and Dostoevsky.

As I have discussed in a previous article, authentic scientific thinking has been eroding for half a century. As it continues to do so, its moderating effects will become less of a bulwark against rationalizations serving as camouflage for the will to power. This is not to say that only scientific thinking is valid. It is far too limited to take into account the deeper aspects of man’s nature: faith, purpose, morality, love—these cannot be reduced to mathematical formulae. Rather, the discipline gained from having to limit oneself to precise formulation and to consistency with Nature leavens the entire intellectual enterprise and helps contain the dangerous hubris of man.

Edward Dougherty is Distinguished Professor of Electrical and Computer Engineering at Texas A&M University and Scientific Director of the Center for Bioinformatics and Genomic Systems Engineering.

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What Dante, Tolkien, and Harry Potter Fan Fiction Can Teach Us about the Contemporary Quest for Immortality http://www.thepublicdiscourse.com/2015/07/14765/ http://www.thepublicdiscourse.com/2015/07/14765/#comments Mon, 27 Jul 2015 11:00:35 +0000 http://www.thepublicdiscourse.com/?p=14765

In the opening canto of the Paradiso, Dante sings: “To soar beyond the human cannot be described / in words.” This is the translation provided by Robert and Jean Hollander. The Italian verb Dante invents in these lines, “trasumanar,” is more naturally rendered “tranhumanize,” as in some older translations. To put it so today would be somewhat misleading.

The spiritual metamorphosis Dante here describes differs greatly from contemporary “transhumanism,” a movement obscure elsewhere but influential in Silicon Valley, which seeks the technology to make us smarter, stronger, and (almost) immortal: in the words of Eliezer Yudkowsky, prominent AI researcher and tranhumanist, “A million-year lifespan? If it’s possible, why not?”

The possibility seems farfetched, and so the question idle. We move on—but in doing so offer our implicit assent, and only through inarticulate disgust avoid agreeing to customize our genome, to upload our minds to computers, to invent artificial intelligence. We ought not dismiss Yudkowsky's rhetorical question, but rather—what his rhetoric did not anticipate—respond to it, and to the infinite desire it attempts to describe.

Dante, though he knew little of technological quests for million-year lifespans, has wisdom to offer us, for he knew much of how the human desire for the infinite expresses itself—for both good and ill.

Dante’s Inferno and the Rhetoric of Immortality

An ancestor of contemporary transhumanism can be found in Canto XXVI of the Inferno. There the pilgrim encounters Ulysses, of Homer’s Odyssey, and the Italian poet places in the Greek hero’s mouth a coda to his homeward voyage:

‘Not tenderness for a son, nor filial duty
toward my agèd father, nor the love I owed
Penelope that would have made her glad,

Could overcome the fervor that was mine
to gain experience of the world
and learn about man’s vices, and his worth.

And so I set forth on the open deep
with but a single ship and that handful
of shipmates who had not deserted me.’

Ulysses and his crew sail through the pillars of Hercules, beyond the boundaries of the known world, all the way to the island-mountain of Purgatory—any further, and they could have stormed the gates of paradise on earth. Instead, a whirlwind descends, their ship capsizes, and they drown.

Though he erred both in his indifference to his father, wife, and son, and in his transgression of divinely ordained limits, Ulysses has been placed not in the circle of the blasphemers, nor that of the traitors to family, but in that of the fraudulent counselors. His worst crime, in Dante’s depiction, is his use of manipulative rhetoric to convince his fellows to follow him into sin:

‘“O brothers,” I said, “who, in the course
of a hundred thousand perils, at last
have reached the west, to such brief wakefulness

“Of our senses as remain to us,
do not deny yourself the chance to know—
following the sun—where no one lives.

“Consider how your souls were sown:
You were not made to live like brutes or beasts,
but to pursue virtue and knowledge.”’

This powerful speech makes participation in the polis, traditionally a space for human virtue, appear fit for only “brutes or beasts.” It presents a brutish indulgence of a solitary lust for novelty as if it were the only truly human life. It achieves this transvaluation so fully that many readers misread Ulysses’ hubris as magnificence.

The Literary Legacy of Dante’s Ulysses

Through such creative misreadings Dante’s invented voyager has had a long afterlife, even by the standards of the Commedia. For example, he reappears in two works from the early nineteenth century: as the eponymous hero of the young Tennyson’s dramatic monologue “Ulysses,” and as Captain Ahab of Melville’s Moby-Dick.

Both figures possess a strange ambiguity: not knowing whether we should take their rhetorical blustering at face value, critics argue endlessly over whether they should be respected or abhorred. Even stranger, the voyagers themselves—unlike both Dante and the contemporary transhumanists—do not seem to know the goal of their Last Voyage. As Ahab says:

If man will strike, strike through the mask! How can the prisoner reach outside except by thrusting through the wall? To me, the white whale is that wall, shoved near to me. Sometimes I think there’s naught beyond. But ’tis enough.

And Tennyson’s Ulysses, with equal uncertainty:

Death closes all: but something ere the end,
Some work of noble note, may yet be done,
Not unbecoming men that strove with Gods.

Unlike Dante’s Ulysses, neither of these heroes hopes to gain virtue and knowledge. Unlike the Silicon Valley transhumanist, neither seeks to deflect attention from the lastness of their Last Voyage. For Tennyson's Ulysses and Melville's Ahab, merely to “strive” and to “strike” against the “whale” and the “Gods,” before “Death closes all,” will be “enough.”

Closer to both the contemporary transhumanist and the Dantean Ulysses is the Last Voyager of a more recent work, J.R.R. Tolkien’s Silmarillion. Yet Tolkien's version also differs from Dante's, in ways significant for our understanding of the transhumanist impulse.

Tolkien and Technologies of Deception

They differ, most obviously, in how Tolkien combines the Last Voyage motif and the Downfall of Atlantis, that other parable of human limits, which meet in the figure of Ar-Pharazôn the Golden, last king of the technologically advanced realm of Numenor (later called Atalantë). Ar-Pharazôn invades the island of the gods, and in doing so brings about the destruction, not just of his armada, but of his entire kingdom.

Why combine Ulysses and Atlantis? Tolkien lived, as Dante did not, in an Atlantean world already responding technologically to its inhabitants' Ulyssean desires, and he saw that this response would not placate those desires, but inflame them. To combine the myths is a stroke of genius. Other changes he makes, however, are more dubious.

First, he splits Ulysses in two. To Ar-Pharazôn, he gives all Ulysses’ lust for endless novelty, while to his advisor, Sauron, he gives all Ulysses’ deceptive rhetoric.

Second, he alters the blessed land towards which the hero sails. Ulysses sails for Mount Purgatory, to which, if he had died well, his soul would have made its way. By contrast, Ar-Pharazôn sails for Valinor, home of the gods and elves, a place forbidden to men living or dead.

Finally, he rewrites the voyager’s fate. Ulysses sinks to his death, lost forever. Ar-Pharazôn makes landfall, only to be trapped underground, “in the Caves of the Forgotten,” where he remains preserved until the world’s end.

Much as I admire Tolkien’s writing, I suspect Dante’s original insight here to be the deeper. His Ulysses erred not in seeking “to soar beyond the human,” but in convincing his crew that immortality just meant endless novelty. Tolkien makes the desire for immortality itself the Atlantean king’s true sin. This leaves no room for the Dantean “trasumanar,” or any immortality for which the men of Middle Earth can virtuously hope. Without such a vision, it is difficult to avoid embracing the endless novelty of Ulysses.

Worse, Tolkien precludes any explanation of the transhumanist's reliance on false rhetoric, attributing it to the inexplicably evil Sauron. Only Dante explains that, in seeking endless novelty at the expense of human virtue, we become not just victims of false rhetoric but purveyors of it. Bereft of non-prudential reasons to avoid doing so—and prudential reasons can always be overruled by exigent circumstances—those who follow the path of Ulysses quickly embrace the arts of deception. Soon after, they find those arts to offer more novel experiences than whatever source of novelty they had first sought, and for the sake of which they had first begun to deceive.

A Modern Transhumanist Tale

A fascinating illustration of this tendency can be found in the aforementioned Yudkowsky’s most recent work: Harry Potter and the Methods of Rationality, a Harry Potter fanfiction, the final installment of which was published on Pi Day (March 14th) of this year.

HPMOR, as its myriad fans call it, imagines a world in which Harry Potter, instead of being a normal child, is a hyper-rational (Ulyssean) transhumanist. HPMOR is notable for challenging the opponents of transhumanism on their own ground. A valorization of transhumanism would be right at home in science fiction, but fantasy is usually the preserve of a more traditional ethic—consider, again, Tolkien, as well as Rowlings’ original Harry Potter books, in which only the villain desires to escape death at all costs.

The story is genuinely entertaining, especially for those (like me) who read Harry Potter in their youth and cared enough about science to find its less than coherent portrayal of magic somewhat frustrating. It's fun to imagine Harry experimentally investigating whatever could possibly cause certain pseudo-Latin words pronounced in the right way by the right people to bring about levitation.

But, like any transhumanist, what this Harry wants is not knowledge and virtue, but novelty and power. His “rationality” turns out to be closer to Ulysses’ rhetoric than we might at first have thought. Before long, Harry decides that he is the only sane man in an insane world, and so has no choice but to “rationalize” it. Thenceforth, all our attention is diverted to the science, or, rather, technique, of psychological manipulation.

By the story’s end, Harry is ruler of Magical Britain and about to cure death, but in a manner unconnected to his long-neglected magical-scientific researches. He has also told so many lies, and, in a highly implausible turn of events, has gotten away with so many of them, that no one else understands much of anything about what has happened. There is no suggestion that he is wrong to do so. Both hero and author, apparently, look at others not as persons to engage with, but as, in a telling phrase, “something to protect.” One feels that it is not human life, but this superior feeling of overseeing complex things, that they want to make last almost forever—much like HPMOR itself, which is over thrice the length of Moby-Dick.

The rhetorical excess is unfortunate, but not fatal. More serious is the failure of all these words to grant a plausible train of thought to those who would oppose Harry’s quest. Yudkowsky seems not really to understand what could bring anyone to desire to make such arguments, or to oppose his own real-life transhumanist quest.

The Dangers of Straw-Transhumanism

All this stands in stark contrast to Inferno XXVI. Dante allows Ulysses to infect us with his transhumanist desire; only when we look at where he is, and ask what put him there, do we see why following him would be a mistake. This pattern holds throughout the Inferno, which Dante populates not with rhetorical straw men, but with voices convinced of their own righteousness, speaking so convincingly that many readers take their side against Dante’s God. Only after understanding both the damned souls and the reasons for their damnation can the pilgrim move on to purgatory and paradise.

Dante's refusal rhetorically to manipulate us into finding the damned abhorrent is part of what separates his trasumanar from Ulysses’, and Yudkowsky’s, transhumanism. We would do well to follow Dante's example: Not to uncomprehendingly attack HPMOR—which would convince no one—but to understand what makes its transhumanism attractive, and what makes that attraction dangerous.

Consider what description of soaring “beyond the human” might compete with it in the transhumanist's imagination. After all, whatever else Silicon Valley may be, it isn't hell: people do come back from it.

Joseph Simmons is a graduate student in the University of Chicago's Committee on Social Thought, where he studies, among other things, modern British literature.

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The Equality Act: Bad Policy that Poses Great Harms http://www.thepublicdiscourse.com/2015/07/15381/ http://www.thepublicdiscourse.com/2015/07/15381/#comments Fri, 24 Jul 2015 11:00:31 +0000 http://www.thepublicdiscourse.com/?p=15381

Building on the momentum from the Supreme Court’s Obergefell ruling that redefined marriage throughout America, LGBT activists working with Democratic lawmakers have unveiled a new bill titled “The Equality Act.” The brevity of the bill’s title matches neither its scope nor its impact on federal law and fundamental liberties found in the Constitution. If enacted into law, the Equality Act would further erode religious liberty, transform public opinion on sexuality, and harm the public perception of those who believe in traditional or biblical sexual morality.

The bill would create federal anti-discrimination protections on the basis of sexual orientation and gender identity in public accommodations, education, employment, and housing. To do so, it would amend the 1964 Civil Rights Act to add “sexual orientation” and “gender identity” as protected classes (SOGI). In short, the Equality Act would offer the same types of protections extended to other groups (on the basis of race, color, religion, and national origin) protected under the Civil Rights Act of 1964.

The move comes after legislators and activists have been unable to pass the federal Employment Non-Discrimination Act (ENDA). But the Equality Act goes much further than ENDA ever dreamed, offering a comprehensive umbrella of protections based on the disputed categories of sexual orientation and gender identity.

Marginalizing Dissent

The Equality Act represents the most invasive threat to religious liberty ever proposed. Were it to pass, its sweeping effects on religious liberty, free speech, and freedom of conscience would be historic.

Aside from the enumerated protections that give rise to conflict between sexual identity and religious liberty, by elevating sexual orientation and gender identity to the level of race, the law’s effect would functionally equate those who don’t agree with it with racists and label them perpetrators of irrational bigotry. Indeed, to favor the Equality Act is to oppose and actively stigmatize the moral convictions that millions of Americans adhere to with abiding sincerity and deep religious precedent.

The bill’s stated intentions and its actual consequences are very different. While the bill purports to protect individuals from discrimination, the Equality Act would discriminate against those who do not agree with a regime of laws premised on sexually permissive understandings of human nature that deny sexual complementarity. It would thus create a new form of discrimination by socially isolating certain beliefs.

Problematic Premises

The underlying philosophy that gives rise to the Equality Act is problematic. Passing anti-discrimination statutes on the basis of sexual orientation and gender identity lacks both the philosophical warrant and the cultural necessity of protections based on race.

The 1964 Civil Rights Act rightfully corrected a legal regime of dehumanizing and systematic discrimination based on skin color. It did so for good reason: the color of a person’s skin has no relation to his or her moral action, while sexual orientation and gender identity do. Unlike race, sexual orientation and gender identity are known through conduct, which can and should be ethically evaluated.

Secondly, in most cases race is readily apparent, while sexual orientation and gender identity are not. No one other than the person claiming a particular orientation can tell whether such a claim is authentic. Third, protected classes such as race are immutable and involuntary, while sexual orientation and gender identity are not always fixed. It is unwise to craft public policy on a view of sexuality and gender identity that is subject to possible fluctuation. Fourth, there has never been a systematic regime of laws aimed at demeaning the existence of LGBT individuals comparable to Jim Crow. (I’m indebted to Ryan Anderson for these insights. For more on these arguments, see his new book, Truth Overruled: The Future of Marriage and Religious Liberty.)

The Equality Act tries to shut down debate by treating sexual orientation and gender identity as topics beyond debate. That’s simply not true. Ambiguity persists in the social sciences as to the definition and origin of sexual orientation and gender identity. Enshrining heavily contested and politicized categories in the law poses problematic consequences for those whose moral and/or religious convictions conflict with rapidly evolving conceptions of sexuality.

Religious Liberty, Conscience, and Speech Violations

The Equality Act has enormous repercussions for religious liberty, free speech, and freedom of conscience, especially in education, public accommodation, employment, and federal funding.

In education, it would elevate sexual orientation and gender identity to protected class status in all public schools. Many parents would be unable to provide their children with an education that doesn’t conflict with their moral or religious convictions on sexuality and gender. Dissent on sexual orientation or gender identity would be considered particularly suspect and harmful. Students who harbor different convictions about sexuality and gender would be made to feel inferior to and alienated by their teachers and peers.

All public accommodations and programs would be prohibited from denying any good or service to persons on the basis of sexual orientation and gender identity. This sounds acceptable in theory, but it leaves no room for accommodating the viewpoints of those whose services, speech, or creativity are used to serve wedding ceremonies. Consider the cases of florists, photographers, and bakers who have had no problems serving gay customers for years, but have objected to providing their services for gay weddings. The Equality Act leaves these individuals defenseless by failing to accommodate their sincere religious beliefs and by failing to distinguish between the dignity of gay individuals and the particular conduct (such as wedding ceremonies) in which some cannot in good conscience participate.

The Equality Act would require all entities receiving federal funding not to consider sexual orientation or gender identity as a factor in their programs. Again, this sounds acceptable in theory, but it would require withdrawing any public funds from institutions that believe that marriage is the union of one man or one woman or that men and women are not interchangeable categories. Moreover, it isn’t clear whether religious colleges who receive federal funding would be required to alter their student conduct expectations to align with federal law.

To complicate matters, the bill goes out of its way to strip away any notion of religious liberty by audaciously stipulating that the Religious Freedom Restoration Act (RFRA) cannot be appealed to by individuals, businesses, educational institutions, or religious institutions.

Were this bill to become law, traditional Christian, Jewish, and Muslim sexual morality would immediately be treated as suspect and contrary to federal law. This breathtaking attempt to relocate historic religious belief outside the bounds of polite culture is unacceptable and would have negative consequences for millions of Americans.

We must always remember the teaching function of the law. Law communicates standards of decency, conduct, and custom. Over time, if current ideology concerning sexual orientation and gender identity becomes further ingrained, the Equality Act would work to undermine the view that Christian or traditional sexual ethics are reasonable and can be sincerely held by people of good will. The Equality Act teaches a view of human embodiment that is contrary to orthodox Christianity. Christianity embraces the body and soul as an integrated whole; each person is a unique creation who was created male or female. Male and female are not arbitrary, socially imposed constructs. They are rooted in our biology. In contrast, the worldview behind the Equality Act assumes an “expressive individualism” where our bodies become instruments of the will, capable of being re-created according to preference and desire.

What Should Be Done?

Individuals who support LGBT rights but also recognize that no citizen or institution should be penalized for sincerely held traditional beliefs about marriage, sexuality, and gender should oppose this legislation. Christians who desire the law to resemble the truth about marriage, sexuality, and gender should likewise be opposed. Expansive protections for some that lead to restricted liberties for others do not advance equality or tolerance. Instead, they cause coercion and subjugation.

To safeguard against threats to religious liberty, Senate and House leadership should quash the bill. Granting special rights to others while denying the religious liberty and conscience rights of others is unacceptable. Furthermore, citizens should voice their concerns to their elected officials.

The Equality Act demonstrates the need for a legislative countermeasure. Thankfully, one exists. Called the First Amendment Defense Act, this proposed legislation would help reduce or potentially neutralize some of the threats posed by the Equality Act. The First Amendment Defense Act would protect individuals and institutions who believe that marriage is the union of a man and woman from government intrusion and coercion.

Unity and Compromise—Not Coercion and Conformity

There is no compelling reason to deny a gay individual access to his or her favorite restaurant. It is nonsensical to prevent a gay individual from purchasing batteries or being treated at a hospital. But that isn’t what the Equality Act attempts to fix, because those problems are extreme, and so rare as to be virtually nonexistent. The Equality Act instead paves over the consciences of those who cannot in good faith condone conduct they believe to be immoral by providing services for a same-sex wedding ceremony. Again, such conflicts arise not over the personhood and dignity of an LGBT customer, but over participation in particular conduct that some find morally unacceptable.

We don’t need to “fix” good law by complicating it with this intrusive Equality Act. If we allow the market to settle what is and isn’t good business practice, individuals are free to vote with their dollars. Stores that discriminate against gay individuals won’t receive my money. Over time, decreasing profit harms the feasibility of business that persists in bad, discriminatory business practices.

The Equality Act is not a step toward unity and compromise, but conformity. If citizens on both sides of the aisle could magnanimously agree that no side should suffer discrimination—as the First Amendment Defense Act seeks to guarantee—that would be real progress.

Andrew T. Walker serves as the Director of Policy Studies for the Ethics and Religious Liberty Commission of the Southern Baptist Convention.

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The End of Single-Sex Higher Ed http://www.thepublicdiscourse.com/2015/07/15278/ http://www.thepublicdiscourse.com/2015/07/15278/#comments Thu, 23 Jul 2015 11:00:38 +0000 http://www.thepublicdiscourse.com/?p=15278

As one enters Mount Holyoke College’s Williston Memorial Library, a 1905 Westminster Hall-inspired structure, its grandeur stands out: thick wooden beams, perpendicular Gothic windowpanes, stone capitals. Great women studied on this campus: Emily Dickinson, Frances Perkins, Dr. Virginia Apgar.

Fewer and fewer all-women’s higher educational institutions are left in the United States. Those remaining—colleges like Mount Holyoke, Smith, Wellesley, Bryn Mawr, and Barnard—pride themselves on their guiding commitment to fostering the minds of tomorrow’s female leaders. It is this exclusivity of service that has always set Mount Holyoke and other all-women’s colleges apart from co-ed liberal arts colleges.

Yet in September of 2014, Mount Holyoke College announced that, in addition to accepting female applicants and trans men (female-to-male transgenders), it would now accept trans women. In sum, the following people are invited to apply for admission:

  • Biologically born female; identifies as a woman
  • Biologically born female; identifies as a man
  • Biologically born female; identifies as other/they/ze
  • Biologically born female; does not identify as either woman or man
  • Biologically born male; identifies as woman
  • Biologically born male; identifies as other/they/ze and when “other/they” identity includes woman
  • Biologically born with both male and female anatomy (Intersex); identifies as a woman

The only applicants who will not be considered for admission are those who are born male and identify as male.

Other women’s colleges have gradually adopted this policy as well. However, it wasn’t until the recent high-profile transition of Bruce Jenner to “Caitlyn” that Barnard College announced that it too will be accepting trans women starting with the class of 2020. Barnard is the last of the Seven Sisters Colleges to change its admissions policy.

What Women’s Colleges Stood For

From their inception, women’s colleges realized the radical idea that higher education is not male-specific. Higher education is, rather, a fundamental right of both men and women. Women’s colleges were meant to empower and affirm women, to foster intellectual free rein, to help women stand up with dignity against adversity, and above all to give women an equal opportunity in higher education. The Seven Sisters in particular were intended to mimic the prestige of the Ivy League, as Irene Harwarth, Mindi Maline, and Elizabeth DeBra highlight in their book Women’s Colleges in the United States: History, Issues, and Challenges. Indeed, the proximity of Barnard and Radcliffe to Columbia and Harvard, respectively, predisposed them for success.

These women’s colleges not only paved the way for future generations of women; they set a new standard for thinking about women in terms of change, diversity, equality, and freedom. Over the decades, these women’s colleges have questioned and encouraged the exploration of gender roles and sexual orientation. Yet only recently have these colleges called into question the very definition of woman—which, in turn, raises the question of what such a school’s admissions policy should look like. Now, women’s colleges are at a crossroads, for to define a term is to set limits on its use. In this context, it is to decide who will and who will not be a woman. The integrity of all-women’s colleges requires limiting enrollment to women. With the acceptance of trans women, are not these colleges essentially becoming co-ed?

If the admissions criteria for trans men is based on the applicant’s (female) biological makeup at birth rather than the fact that she professes herself to be male, then consistency requires that these colleges either revoke admission to trans women (because they were born male) or allow admission to both men and women. Why include some who were born male and not others?

The inability of women’s colleges to define what a women’s college is or is not has uprooted them from their legacy of educating the next generation of—exclusively—female leaders; now they educate everyone except men who identify as men. If, at the time of application, a man decides that he no longer identifies with men, colleges like Barnard, Mount Holyoke, and Smith will welcome him with open arms. And while the most recent change in the admissions policy at Barnard to accept trans women may be met with adulation in our politically correct times, Barnard’s integrity as a women’s college is nevertheless lost.

When Biology is Left Behind

By excluding biology from the definition of men and women, we sacrifice our ability to distinguish between the two. The alternative is to say, along with gender theorist Sandra Bem, that humans become gendered as they grow up in society. Such proposals are being seriously entertained. The Human Rights Tribunal of British Columbia, for example, is currently debating whether or not assigning a baby’s gender at birth is discriminatory, as it gives “false information about people and characterizes them in a way that is actually wrong” according to Morgan Oger, chair of the Trans Alliance Society.

Our society is becoming less and less willing to acknowledge not only biological differences of the sexes but also the reality of human nature as a union of body and soul. These tendencies presuppose that someone might very well be born with a girl’s body and a boy’s soul—that there is no inherent connection. Jenner’s recent claim to having “the soul and the brain of a female” is perhaps the paradigm case of this, but could not be farther from common sense. Jenner retains the brain he had when he was born, and research suggests that there are substantive differences between male and female brains.

Frances R. Spielhagen, in her contribution to the volume Debating Single-Sex Education, draws attention to brain-imaging research conducted by Dr. Joseph Lurito at Indiana School of Medicine. The research showed that:

  • A majority of males use the left side of their brains for listening.
  • A majority of females use both sides to process what they hear.

Thus, during certain critical learning activities such as listening and reading, males and females use notably different areas of their brains. This is one example from a growing body of research that demonstrates that the sexes learn differently and even see and hear differently.

One reason all-women’s colleges continue to flourish today might be that, because women learn differently than men do, learning in an environment exclusively dedicated to their sex gives them the highest peer-to-peer learning advantage possible. In co-ed schools, men and women’s learning differences may lead to different gains—male and females may grasp certain ideas differently, and at different paces, and consequently might benefit from different approaches to teaching. Therein lies an argument for retaining the all-women’s colleges’ old standards for admission. These colleges aim at educating the next generation of female leaders, and their success depends on their catering to women’s educational needs. One might profess a different gender than that assigned at birth, but one’s brain chemistry and information processing remain unchanged.

Many women’s colleges hold that, in order to be true to their legacy as a women’s college, it is sufficient to retain the language of a women’s college—emphasizing women’s opportunities, the school’s female history and academic standards, and the camaraderie of female friendship. But the integrity of an all-women’s college depends on serving individuals biologically identifiable at birth as female. Women’s colleges that abandon this standard effectively cease to exist as such.

Moving the Public Conversation Forward

Who is supposed to be helped by the acceptance of trans women? If anyone, we would hope to be helping either all women or trans women. Are we helping women generally to become confident in their identities and succeed in our society by telling them that trans women are also just like them? There is a good case that we are not. As some feminists have pointed out, trans women are often the recipients of “male privilege”; indeed, the highest paid female CEO was born a man.

More plausibly, perhaps, it might be suggested that we are helping trans women by recommending a sex change (“gender reassignment surgery”). But there are good reasons to doubt this too. Is surgery the right response to this misalignment of desire and appearance? In other cases we wouldn’t think so. In a recent Public Discourse article, Nuriddeen Knight recalls her fleeting childhood desire to be white. She draws an analogy between her own experiences and those of Pecola, a character from the Toni Morrison book The Bluest Eye. Though Pecola does not have blue eyes, she wants them, and by the end of the book even convinces herself that she has them. But this is not a triumph of her identity.

But what if it were really possible for me to become white or for Pecola to acquire blue eyes? Would that be the end of the story—the happily ever after? Would changing our physical appearance magically erase all our issues of self-esteem and self-worth?

No, of course not. The eyes and the skin color were never the problem: racism and abuse were. We would only be putting a Band-Aid on the real issue.

Similarly, women’s colleges that accept trans women are putting a Band-Aid on underlying issues while compromising the very thing that sets them apart from co-ed schools—their long held identity as institutions exclusively dedicated to the flourishing and enrichment of women’s education.

When the bliss of the Vanity Fair cover shoot, the ESPY Courage Award, and the stream of congratulatory, high-profile tweets wear off, will Jenner be as elated about being a “woman” as he is now? We’ve all been known to hide our fears, our uncertainties, our insecurities, and our pains behind something that makes us feel good—but it’s the phantom behind the mask who needs our love, sympathy, and compassion the most.

At the end of the day, America’s all-women’s colleges stand for something more than appearances: They stand for a legacy of academic excellence dedicated to the educational stimulation of women. For Barnard, that should mean giving women—women exclusively—the means to succeed as women. For, without the presumption that women’s colleges are intended for women, these colleges make a female’s birthright secondary to a decision to identify as a women.

We cannot change our DNA, and we cannot change the way we were born. Let’s recognize our differences and celebrate our similarities. But let’s not call ourselves something we’re not.

Kelsey Paff graduated with a BA in World Literature and Studio Arts from the College of the Holy Cross. She lives near Princeton with her husband and five-month-old son.

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Surrogacy and Same-Sex Marriage: A Tale of Two Countries http://www.thepublicdiscourse.com/2015/07/15362/ http://www.thepublicdiscourse.com/2015/07/15362/#comments Wed, 22 Jul 2015 00:51:10 +0000 http://www.thepublicdiscourse.com/?p=15362

Just days before Irish citizens voted in favor of same-sex marriage in May, a headline in the Independent warned: “surrogacy fears could sink ‘Yes’ campaign.” During the final weeks leading up to the referendum, government leaders and advocates of the “yes” vote to redefine marriage tried to distance themselves from the issue of surrogacy for fear that the two issues might be conflated. Such behavior offers a telling though little discussed insight that’s particularly applicable for our own nation, especially now that the Supreme Court has ruled that there is a constitutional right to same-sex marriage: A growing number of LGBT activists actively oppose surrogacy, even though gay men are the primary users of the practice.

Surrogacy is not legal in Ireland, though some commentators believe that the acceptance of same-sex marriage will lead to its inevitable acceptance. In an interview leading up to the vote in Ireland, Justice Kevin Cross, the head of the Referendum Commission, sought to calm fears that the referendum would lead to surrogacy, promising that there is no automatic right to have children in Ireland, and therefore no automatic right to surrogacy. But some are skeptical.

A Constitutional Right to Procreate?

The confusion can be traced back to a 1991 case, Murray v. Ireland, in which the high court effectively held that there is a constitutional right to procreate. While many on both sides of the referendum argued that this decision was referring to natural procreation, the decision has already been used to promote donor conception. It’s understandable, then, that many were fearful that a “yes” vote would open the floodgates to a practice that many Irish voters do not support. Mothers and Fathers Matter—the leading civic group opposing the same-sex marriage referendum—launched a campaign that papered the country with ads and posters of a young, concerned toddler with the following slogan: “Surrogacy?: She Needs Her Mother For Life, Not Just For Nine Months. Vote No.”

In response, columnist Carol Coulter took to the pages of The Irish Times to declare that “surrogacy has nothing to do with same-sex marriage.” A supporter of the referendum, Coulter rejected the notion that its passage would allow for surrogacy. She went on to sympathize with those who oppose surrogacy. “There are good reasons for their concern about the use of surrogacy in family formation, particularly in relation to the possible exploitation of the surrogate mothers and inattention to the rights of children to their identity,” she acknowledged.

Earlier this year, gay fashion designers Domenico Dolce and Stefano Gabbana made international headlines when they spoke out strongly against surrogacy and third-party reproduction. In a now notorious interview, they remarked: “The only family is the traditional one. No chemical offspring and rented uterus. Life has a natural flow; there are things that cannot be changed.” While their comments were met with fierce opposition by some members of the LGBT community, they are nonetheless joined by a growing coalition of gay men and women who oppose surrogacy.

Anti-Surrogacy Voices in the International LGBT Community

Two prominent organizations in France—La Lune, L’Association Strasbourgeoise de Femmes Homosexuelles, a group of lesbian women, and Les Hommen, a group of gay men—have been vocal opponents of surrogacy. In the United Kingdom, transgender political activist Tara Hewitt and noted commentator and lesbian feminist Julie Bindel, hardly allies on other issues, have offered some of the most vociferous critiques of surrogacy.

In a recent column, Bindel argued:

The accelerating boom in surrogacy for gay couples is no victory for freedom or emancipation. On the contrary, it represents a disturbing slide into the brutal exploitation of women who usually come from the developing world and are often bullied or pimped into selling their wombs to satisfy the selfish whims of wealthy gay or lesbian westerners. This cruelty is accompanied by epic hypocrisy. People from Europe and the USA who would shudder at the idea of involvement in human or sex trafficking have ended up indulging in a grotesque form of ‘reproductive trafficking’.

Here in the United States, people such as Robert Oscar Lopez, a bisexual man and the son of a lesbian, have decried the practice of surrogacy for both heterosexuals and homosexuals. According to Lopez, “regardless of whether the mother consents to losing her child, the child cannot consent.” He has harshly criticized gay men who demean women, using them only for their reproductive capacities.

Despite this growing disapproval of surrogacy among the international LGBT community, proponents of surrogacy know there is a ripe market in the gay community and much money to be made. Major international surrogacy brokers, such as Circle Surrogacy and ConceiveAbilities, have specific marketing programs targeted at gay men. Similarly, conferences such as “Families Through Surrogacy” aim to capitalize on this demographic.

The Next Frontier: “Family Equality”?

Hours after the Obergefell decision was handed down, University of California Irvine law professor Douglas NeJaime took to the pages of the Los Angeles Times to lament that “marriage equality doesn’t immediately or necessarily erase cultural and legal attachments to biological, dual-gender parenting.” In other words, those of us concerned about assisted reproductive technologies and their very real harms to both women and children need to simply rid ourselves of such quaint “attachments.” As skeptics in Ireland feared and the naïve in the United States are now realizing, “marriage equality” inevitably leads to the push for “family equality”—almost always by artifice.

NeJaime goes on:

even though marriage equality doesn’t immediately erase all attachments related to biological, dual-gender child rearing, it points us in the right direction . . . the majority [of the Supreme Court] affirmed a model of parenthood based on chosen, functional bonds rather than biology alone.

In other words, the movement for “family equality” will forever diminish the significance of our biological ties. The state must now act in a way that both accepts and promotes a non-biological vision of parenthood and family. Thus, the market for eggs, sperm, and wombs must be expanded.

Many states will soon be under pressure to follow the example of California and Maryland, where the state legislatures have passed laws that would that mandate insurers provide “infertility” treatments to same-sex couples. In 2013, when California enacted its legislation, Assemblyman Tom Ammiano boasted: “Reproductive medicine is for everybody’s benefit. To restrict fertility coverage solely to heterosexual married couples violates California’s non-discrimination laws. I wrote this bill to correct that.” In a recent article in JAMA Internal Medicine, Brown University physician Eli Y. Adashi praised the Maryland bill and encouraged other states enact similar legislation. According to Adashi, “Building a family is a universal human principle shared by single individuals and unmarried opposite-sex couples, as well as gay and lesbian couples.”

As for the children who will be created from these arrangements—the children who long to know and be known by their biological parents—their needs must be sacrificed for the desires of same-sex couples who long to be parents. To confer dignity upon these adults, they demand, the law must privilege those aspirations. The sober and honest-minded reasoning of Irish supporters of same-sex marriage who recognized this threat, along with courageous voices like Lopez, Bindel, Dolce, and Gabbana, serve as a much needed and powerful witness of what the world of “family equality” will ultimately yield—but their warnings cries are increasingly being silenced by powerful forces with great wealth in their arsenal.

While many consider the contest over same-sex marriage in the United States to have been settled by the Supreme Court, the debate over surrogacy is just beginning. If the events in Ireland offer one lesson, it’s this: Many supporters of same-sex marriage are still wary of surrogacy. It’s one thing to allow for these couples to marry. It’s another thing to create a market for children. LGBT activists who oppose surrogacy serve to remind us that this community does not speak with one voice on this matter. Lawmakers and citizens alike in the United States would be wise to remember this, as well.

Christopher White is the Director of Research and Education at the Center for Bioethics and Culture and an original signer of Stop Surrogacy Now, an ethnically, religiously, and culturally diverse coalition opposed to the exploitation of women and the human trafficking of children through surrogacy.

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Popular Culture and the Male Body: A New Challenge http://www.thepublicdiscourse.com/2015/07/15310/ http://www.thepublicdiscourse.com/2015/07/15310/#comments Tue, 21 Jul 2015 11:00:06 +0000 http://www.thepublicdiscourse.com/?p=15310

The past year has seen the formation of the National Center on Sexual Exploitation, a powerful organization striving to combat the dehumanizing hyper-sexualization of women. As a broad-gauged association including feminists, human rights advocates, and religious and cultural conservatives, the National Center aims to uphold the dignity of every woman in a society that reduces women to objects of desire by insisting upon a sexualized ideal.

The existence of this new coalition shows that the commodification of sexual imagery is an issue on which “conservatives” and “liberals” can cross the conventional party lines. Indeed, by doing so, they have already changed the culture for the better. For instance, due to the Center’s Dirty Dozen initiative, two national apparel chains have redesigned their marketing strategies by eliminating sexualized imagery; a major hotel franchise has removed pornographic movies from its entertainment options; and the Federal Communications Commission has begun enforcing decency regulations that had fallen into abeyance.

Combating the exploitation of women and girls is critical. What has received much less attention, however, is a more recent trend in American culture: the commodification and sexualization of the male body. Mass-marketed movies by mainstream production companies as well as easily accessible print and internet media have conspired to establish the respectability of the consumption of the male form. Though widespread in popular media, this trend and its implications are not appreciated by most activists campaigning against the sexual exploitation of women. The growing social respectability of the sexual objectification of males, however, is a poisonous force spawning genuine and pressing problems.

Counter-Objectification and Other Consequences

As a small but important group of scholars has documented over the past two decades, mass marketing and the popular media increasingly purvey an idealized male physique, defined particularly by muscularity and large chest size. Harrison Pope and Roberto Olivardia of Harvard Medical School have done the groundbreaking work in this field, with other important work also conducted by Stacey Tantleff-Dunn and her colleagues. This new norm of male sexual objectification—that is, the depiction of men as sexual beings whose worth depends on the power to arouse the opposite sex—is creating serious but underappreciated consequences.

First, reports indicate that young men increasingly suffer from body-image problems. One study finds that young men are now more concerned with their physiques than with their job status. Indeed, “The TODAY/AOL Body Image Survey released in 2014 found that men worry about their appearance more than they worry about their health, their family, their relationships or their professional success.”

Eating disorders and body dysmorphia—the disorder characterized by the belief that one’s body is defective and requires fixing or concealment—are rising sharply among men. Although these conditions are usually thought to occur almost entirely among females, one estimate gauges that as many as one in four instances are now found among men.

Body-image disorders follow the pattern set by the market’s idealized forms. For women, this generally means becoming thin. Men, on the other hand, inordinately desire muscle mass and muscular tone, leading in turn to steroid abuse and the dangerous over-ingestion of unregulated muscle-building supplements. Indeed, according to the January 2014 report of the American Medical Association Pediatrics, only 15% of male body-image issues include a desire for thinness; 85% relate to muscle tone, abdominal musculature, and chest muscle size. Apparently today’s young men are more worried about chest muscle mass than are young women about breast size.

Men, though, are much less likely to seek help in addressing body-related obsessions and dysmorphia. Deborah Schooler of Gallaudet University finds that males with body image issues often do not recognize their obsession with musculature. Since males often feel ashamed of worrying about their appearance, they instead voice concerns about other body issues like sweat and body odor. These superficially ancillary complaints, as it turns out, are raised in proportion to the objectification of the male body in the media to which a man is regularly exposed.

What is more, the objectification of males in popular culture, and the growing cultural embrace of this development, lead to a phenomenon that I call counter-objectification. Specifically, the objectification of men by women feeds the objectification of women by men. How does this occur? As Professor Tantleff-Dunn shows, many boys and young men respond with anger to images that objectify males; Sarah Murnen and her colleagues conclude similarly that male objectification feeds “sexual animosity.” The sense of sexual animosity in young males in turn correlates highly with their increased consumption of media that objectifies women; this leads to negative consequences for both males and females, such as male depression and the development of aggressive male sexuality.

Thus, many young men who feel that men are the targets of a male-objectifying culture in turn objectify women to a greater degree. Counter-objectification harms both men and women.

The Importance of Coalition

All of this points toward an important imperative: The fight for human dignity against our sexualized culture must be coalitional and cooperative. Those who worry about the sexualization of women in contemporary society must ally with those concerned about the problems facing young men today.

A society that seeks to root out one sort of objectification but promotes and even celebrates another is inherently unstable. For one of the most promising—indeed, one of the most essential—ways to combat the still rampant sexual commodification of women is to draw allies among young men, for young men are especially prone to objectify women in the media they consume. It is important therefore to make inroads among young men if we wish to reduce the incidence of objectification. But so long as the objectification of men by women is disregarded or trivialized, the step of getting men to cooperate will be difficult.

A sense among young men that the movement against sexual exploitation is hypocritical would, therefore, deeply wound that movement. The movement should not limit itself to criticizing male consumption of sexualized images of women, for the consumption of sexualized images of men by women is deeply intertwined and, in any case, objectionable on similar moral grounds.

Indeed, my experience in the classroom—over fifteen years teaching social and political theory to undergraduates—suggests that young men are suspicious of a culture that concerns itself with the problems of one sex to the exclusion of the same problems of the other. They often “tune out” when calls are made to address the very real problems confronting women today, such as their sexual objectification in contemporary culture.

To be sure, I do not mean to exonerate any man of his own contribution to the commodification of female sexuality, or of his insensitivity to the attendant problems; what I do emphasize, however, are real social trends that people working to resolve such issues should take seriously. The reason the objectification of women should be ended—and the reason why men should not participate in it—is that objectification itself is bad. If we tolerate or even celebrate the objectification of men, it will be difficult to convince men that they ought to behave differently toward women.

An Example: Magic Mike

Someone looking for an example of male objectification in popular culture need look no further than Warner Brothers’ 2012 film Magic Mike and its sequel. Magic Mike—highly successful with young female audiences—celebrates muscular male strippers as well as the young women who pay for their services. Such movies are a real moral poison. They entrench the cultural wave of male sexual objectification and therefore deepen the problems explored above. Most opponents of sexual exploitation have little to say about Magic Mike, and thereby risk alienating men from the broader fight against sexual commodification.

Unfortunately, Magic Mike is extreme but not atypical; mainstream cinema is now replete with highly eroticized images of muscular men. This is particularly relevant because movies are a substantial force in shaping people’s behavior and sense of self, a point underscored by Ross O’Hara of the University of Missouri. His research shows that the consumption of sexual imagery in movies provides young people with sexual scripts that increase the likelihood of unhealthy behavior. The impact of movies on young people’s sense of self, he finds, is greater now than that of television. The contemporary tentpole movie has become tremendously effective at normalizing its content and thereby shaping society in its image.

O’Hara’s conclusion has a powerful intuitive purchase. Movies, after all, are viewed in the centers of our modern life—in the mall, that galleria of conspicuous consumption, or in the large movie complexes adjacent to family-oriented staples like Chili’s, Claire’s, and Kids ‘r Us. The marketing is pervasive, airing in the early evening primetime hours, and fixes the film’s cultural influence even among those who won’t watch it—including, importantly, among age-inappropriate audiences. Nationwide, promotional posters hang at theatres right next to those advertising the next Disney film. It should come as no surprise, therefore, that major movies can serve to normalize the behaviors and standards depicted in them.

Leaders in the anti-sexual exploitation movement launched a nationwide campaign against the movie Fifty Shades of Grey. The movie was found objectionable for a range of reasons, including its glamorization of violence in sexual relations, but one reason was also its salacious objectification of the leading female role. No similar protests were raised by the first Magic Mike movie or its sequel, which opened over the Fourth of July weekend.

At least one prominent member of a core element of the emerging coalition against sexual exploitation took things in the opposite direction, embarrassing the movement by her response to the Magic Mike series. Caroline Heldman, a noted feminist professor at Occidental College, has for a number of years advanced powerful and important arguments against female sexual objectification in contemporary society. Someone reading her review of Magic Mike, however, would be excused for inferring some hypocrisy on her part. She writes of being “heartened” by the movie and being disappointed only that it did not contain even more male nudity.

Is this a tactical ploy, an attempt to let men feel the sting of objectification, and thereby spur them to oppose exploitation? No, her review did not aim at making objectification as such unpalatable. Instead, in a mostly critical review, Professor Heldman finds at least one consolation: “It is wonderful to see so many women spending money for an experience that purports to cater to our sexual desires.” What’s good about the movie, in her view, is that it legitimates the objectification of men by women.

It’s hard to avoid the conclusion that this anti-objectification advocate has fallen into hypocrisy. If we have compelling reasons to uphold female dignity from the influence of a dehumanizing popular culture—and we do—then we also have good reasons to do the same for men. Her approach therefore supplies a cautionary example for others in the anti-exploitation movement to avoid.

So, indeed, Magic Mike is a moral poison—and a bellwether of much more to come. That is, unless the coalition against sexual exploitation and its partners of good will pull together and fight a two-front war against female and male dehumanization.

Our young women and young men are well worth the fight.

Joseph G. Prud’homme is Associate Professor of Political Science at Washington College, where he is Director of the Institute for Religion, Politics and Culture. He blogs at http://reflectionsoncultureandreligion.blogspot.com/.

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Same-Sex Marriage and Interracial Marriage: Not the Same Thing http://www.thepublicdiscourse.com/2015/07/15350/ http://www.thepublicdiscourse.com/2015/07/15350/#comments Mon, 20 Jul 2015 11:00:46 +0000 http://www.thepublicdiscourse.com/?p=15350

One of the same-sex marriage movement’s most potent polemical tools has been, and surely will continue to be, its equation of same-sex marriage with interracial marriage. On this telling, today’s opposition to same-sex marriage is akin to the opposition to interracial marriage mounted by yesterday’s racists and segregationists. If this assumption were granted, then the legal recognition of same-sex marriage would seem to realize a legitimate equality. A public—like our own—that had largely accepted this parity could at least acquiesce in such a step once it has been imposed by the Supreme Court.

Now the Supreme Court has actually taken such a step and in the course of doing so has given credence to the analogy between same-sex marriage and interracial marriage. This argument will be employed to discredit and demonize those who dissent, those who do not want to cooperate in a distortion of the meaning of marriage. Such dissenters, we will be told, are no different from and no better than the bigots of yesteryear who railed against mixed race marriages.

There is, however, no reason at all for the defenders of marriage to submit tamely to the fate that the left has planned for them. They have a right, and indeed a duty, to continue to defend marriage as a union between a man and a woman, with a view to correcting an error widespread in our country, and even with a view, someday, to securing a reversal of the Supreme Court’s decision. They also have a right and a duty to defend themselves from the left’s plans—already triumphantly announced—to use antidiscrimination law to force moral traditionalists to be complicit in unions that they cannot, in conscience, regard as true marriages. It is therefore necessary for the defenders of marriage to explode the bogus charge that their efforts have anything in common with past objections to interracial marriage.

A Specious Analogy

There is an important distinction between the motives of the opponents of interracial marriage and those of the opponents of same-sex marriage: There never was, nor could there have been, a movement in America that opposed interracial marriage as an attack on the meaning of marriage. Put another way, the racists and segregationists of the past did not—unlike today’s opponents of same-sex marriage—present themselves as defenders of the integrity of marriage itself. On the contrary, racists who objected to interracial marriages were perfectly aware—and indeed fearful—of the fact that interracial marriages would be real marriages, that they could generate and nurture new human lives.

Everyone knew, for example, that a black man and a white woman, or a white man and a black woman, could generate mixed-race children. This had happened for centuries. Indeed, it was a common law liberty. This is why anti-miscegenation laws did not merely decline to recognize interracial marriages but actually sought to punish them. The people who wrote those laws knew that such unions really were marriages, that they would by their nature tend to achieve the ends of marriage: the generation and rearing of new members of the human race. Interracial marriages had to be deterred not because the racist thought marriages across the races were impossible, but rather precisely because he knew they were possible.

Viewed in this light, the defenders of traditional marriage and the opponents of interracial marriage are animated not just by different but by actually opposite motives. The former object to same-sex marriage because they know such a union could not be a marriage: a union that is in principle capable of the generation of human life. The latter objected to interracial marriages precisely because they knew that they could function as marriages thus understood.

Unlike today’s defenders of marriage, then, the opponents of interracial marriage were not at all interested in defending the integrity of marriage as it had always been understood. They were interested, instead, in something completely different and totally unrelated: the preservation of racial purity and the maintenance of white supremacy. This is why there was never a significant American movement against, and only against, interracial marriage.

Objections to mixed race marriages were part of a larger movement to keep blacks in a socially and politically inferior position—to defend segregation in education and in all public services, as well as effectively to deprive blacks of the right to vote. In contrast, the defenders of traditional marriage have no such aims. Those who contend that marriage must be understood as a union between a man and a woman have no agenda to set up separate public schools for gays, much less to disenfranchise them.

The general accuracy of the sketch above, moreover, is not undermined by the existence of isolated counterexamples. Perhaps some imaginative racists did frame their objections as the claim that interracial marriage was a threat to the integrity of the institution of marriage. First, for the reasons just noted, it would be impossible to make any rational argument to that effect; one can’t plausibly claim that the purpose of marriage is undermined when the spouses are of different races. But second, the existence of such outliers would do nothing to change the overall character of the anti-civil rights movement, which was a movement, again, not to defend marriage but to keep blacks in a socially and politically subordinate position.

By the same token, some anti-gay bigots today may oppose same-sex marriage on the grounds that the law should in general seek to harass and humiliate gays. Such objectionable arguments, however, cannot reasonably or justly discredit the efforts of serious and sincere defenders of marriage. That such people are not motivated by a desire to disparage gays can be seen by the fact that they tend to understand their definition of marriage as having various other implications regarding, for instance, divorce and non-marital sex.

Infertility and Contraception

Nevertheless, the most zealous proponents of same-sex marriage will insist on the justice of the analogy: Opposition to same-sex marriage is just as irrational and bigoted as opposition to interracial marriage. In both cases, the opposition depends on trying to make something essential to marriage that is in reality non-essential; moreover, they charge, in other contexts the proponents of traditional marriage even agree that the feature in question is non-essential. So they are being inconsistent in this case, which is often a sign of ill will.

The proposed feature, of course, is the orientation of the marital union to generating and nurturing children—to procreation. Do not many heterosexual marriages in fact fail to produce children, as a result of spousal infertility or personal choice? And few deny that such unions are in fact marriages.

This argument is utterly unpersuasive. First of all, even if it were impossible to ground the meaning of marriage in its relation to bearing and rearing children, it would not follow that those who have not yet accepted the Court’s new definition are like the bigots who invented race-based requirements for marriage. To show that defenders of marriage are similarly bigoted, it’s not sufficient to show that they’re wrong; they could simply be defending a false belief, and not all false beliefs are defended in service of distasteful prejudice.

Certainly, their view is not obviously wrong and can be believed without malicious ulterior motive. Marriage was instituted in all cultures primarily with a view to making sure that the father would remain connected with and take care of the woman he had impregnated, for the sake of whatever children she would bear. In view of these facts, which are evident to all, it is ridiculous to maintain that the traditional definition of marriage was somehow devised with the intention of excluding or discriminating against gays.

But defenders of marriage need not concede that the possibility of infertility and contraception undermine their definition of marriage. To insist that they have, and to insist accordingly that there is just no important difference between an interracial and a same-sex marriage, is to overlook another perfectly obvious fact: While heterosexual unions may in some cases fail to generate children, homosexual relationships are absolutely incapable of generating children.

What, then, of those heterosexual marriages that do not generate children, either through natural infertility or deliberate choice? The defender of traditional marriage contends that such instances of infertility are accidents that in some cases prevent marriage from fulfilling its aims. They are not essential characteristics on the basis of which we should define marriage. Homosexual unions, on the other hand, are essentially infertile.

Now, proponents of same-sex marriage may reject this distinction between nature and accident—although this rejection is something that would have to be defended, for plausibly the distinction does have legitimate application in the biological realm. The important point here, however, is that the further pretense that those who find this distinction relevant are motivated by aims similar to those of America’s past racists, is entirely unwarranted.

One doesn’t have to be motivated by animus to see a point in enshrining such distinctions in law. Social institutions are commonly legally defined on the basis of what usually happens and not what is exceptional. Thus the law has traditionally defined marriage as a union between a man and a woman because that kind of union ordinarily yields children. From a legal perspective, even if infertile couples couldn’t marry, it might not be in the state’s interest to check whether a given couple is infertile. Positive laws cannot cover all cases and should not impose a greater burden in enforcement than they can expect to achieve.

On the other hand, same-sex couples are essentially incapable of procreating, and everyone can see this. Therefore, the defender of marriage can plausibly claim that—since marriage is a public and visible institution—licensing same-sex marriages undermines the public understanding of marriage in a way that licensing infertile marriages does not. No aspect of this position needs to be motivated by bigotry toward gays and lesbians in the way that any defense of anti-miscegenation laws must be motivated by bigotry toward blacks.

Those who believe marriage is properly understood as a union of a man and a woman should continue to press their case without being deterred by spurious charges that they are the intellectual descendants of racists. And those who disagree with them should meet them honestly on the field of rational argument without resorting to such groundless slanders.

Carson Holloway is currently a visiting fellow in American political thought in the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation.

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Talking Past Each Other: "Love Wins" vs. Human Nature http://www.thepublicdiscourse.com/2015/07/15341/ http://www.thepublicdiscourse.com/2015/07/15341/#comments Fri, 17 Jul 2015 11:00:52 +0000 http://www.thepublicdiscourse.com/?p=15341

Times have been more trying than usual for supporters of marriage—that is, the institution that brings together a man and a woman and is fulfilled by the raising of any children that their union bears. Our new sovereigns, the Supreme Court—well, five of nine justices, at least—have thrown their legal weight squarely behind the sudden, seemingly unanimous commitment of our media and intellectual elites to the abolition of marriage.

This rebellion, like all rebellions, is a casting off of restraints. It is especially disappointing for those of us who understand that the family, the integrity of which depends upon such restraints, provides the foundation for the flourishing of individuals and communities. How can such goods be cast aside so carelessly?

For many of us who defend what I will call the anthropological view of marriage, the most troubling feature of the reigning confusion is the fact that so many friends and loved ones not only disagree with us, but find it impossible that any intelligent person—in this day and age, at least—would object to granting the “right” to “marry” to two people who “love” each other. Opposition must be rooted in irrational animus, and so a slogan has emerged: “Love wins.” What could be wrong with that?

The anthropological and the love-wins views talk past each other because one side is interested in human nature and its implications, in permanent features of the human condition as taught by both reason and revelation, and the other side—well, not so much.

The Two Views in Contest

The anthropological view is so called because it appeals to biological facts and to a closely associated social reality. Ryan Anderson lucidly lays out the argument for this view in a recent article:

For marriage policy to serve the common good it must reflect the truth that marriage unites a man and a woman as husband and wife so that children will have both a mother and a father. Marriage is based on the anthropological truth that men and woman are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.

The government is not in the marriage business because it’s a sucker for adult romance. No, marriage isn’t just a private affair; marriage is a matter of public policy because marriage is society’s best way to ensure the well-being of children. State recognition of marriage acts as a powerful social norm that encourages men and women to commit to each other so they will take responsibility for any children that follow.

Redefining marriage to make a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than about the needs—or rights—of children. It teaches the lie that mothers and fathers are interchangeable.

In other words, marriage is an institution intelligible only by reference to enduring truths: Children are produced by the union of man and woman and flourish best with their biological parents. Marriage interests the state because the state cares about children. According to this anthropological view, the truth about marriage is fully responsive to, and therefore restrained by, truths about man. Apart from those truths, the institution doesn’t make sense.

Now, to be sure, no argument concerning human existence and the good life achieves the level of a mathematical demonstration. It’s unavoidable: No vision of the good life can be absolutely demonstrated to everyone’s satisfaction, but we still have to choose between the alternatives, and we should do so based on the quality of reasoning in the respective arguments. This argument for marriage, even if one disagrees with it, is reasonable and comprehensible. Supporters of the anthropological view would find slight but welcome consolation if the culture war’s current winners could bring themselves to acknowledge the existence of reasonable argument and evidence on the other side.

But the slogan “Love wins” bespeaks a definite triumphalism, rooted in the conviction that the opposing view has always been baseless. “Love wins”—that’s all there is to it. No nice and reasonable person would stand against “love.” Why oppose “progress,” unless you’re motivated by “bigotry”?

The love-wins view of marriage is not just about the love of same-sex couples, but also about the love (read: approval) of fellow citizens. To love, on this view, means always to accept another person’s own conception of his own good. The rainbow-faced advocate of pure and simple “love” enjoys at once the thrill of moral sincerity and the prestige of intellectual superiority. To count as a great lover of humankind, all I have to do is to let my neighbor do as he or she likes—and assure him that I respect his right to express himself as he likes. To impose any view of human nature would be to stand in the way of self-definition, and that’s bad. To be enlightened is to be on “the right side of history,” to show contempt for inherited moral structures insofar as they hold us back.

At the same time, from the anthropological point of view, the love-wins conception seems lighter than air, strangely oblivious to the human condition. The concentration on a wide-open “love” appears to be doubly seductive to persons grounded either in revealed law or in reason understood anthropologically. Revealed principles, history, and philosophy are all necessary to inform the concrete meaning of “love,” for a human being is a certain kind of being (a child of God, part of an orderly and lawful creation, a fallen creature with great potential for evil as well as good).

Truth, Love, and Freedom

In order to identify Christian charity with the “all you need is love” mentality, one’s warm emotions must be impeded neither by definite, non-negotiable religious covenant nor by belief in a permanent human nature. But from the anthropological point of view, to show love to a person requires respecting that person as he or she is. The content of love depends on truths of revelation and nature.

As with the love-wins view, this has implications for the citizen as well as the lover. For the anthropological view, love is not just about romance, nor is it about affirming others’ desires. It might require telling the loved one something he or she doesn’t want to hear—about consequences, or about repentance, for example.

The anthropological view accords moral and intellectual authority to an order seen as God’s creation. On this view, freedom or agency requires limits and consequences; freedom is not only limited by but informed by responsibility to eternal truth. Only moral agency (freedom limited and informed by covenants with God and by the structure of reality) is truly agency. Freedom is inseparable from the recognition of limits and consequences and, indeed, demands gratitude toward a moral order that we did not invent. While all actual political and social orders will fall far short of the eternal truth of moral agency in some respects (and should be held to account as far as possible), it is good to be subject to flawed but reasonable authority because we all need practice accepting limits on our freedom, bonds that make us free.

The love-wins view cannot even see the point of this authority, because it does not believe we need to pay any attention to “the laws of nature and Nature’s God.” We no longer need a guiding political philosophy or theology, for these concern only supposed permanent features of the human condition with their limits, constraints, and consequences.

There have been very learned and acute (if not wise) thinkers who argued that humanity’s natural limits could be overcome. Karl Marx envisioned a world beyond morality and politics that would combine absolute individual freedom with the perfect satisfaction of collective humanity. John Stuart Mill, the founding father of contemporary liberalism, imagined a similar outcome without the need for global class warfare to bring history to an end. John Dewey shaped our educational system on the basis of a new faith that the idea of a limited human nature was a prejudice we could leave behind. For Marx, Mill and Dewey, “human nature” was a fiction created by human history, and now human history can dispose of this fiction. We humans are masters of nature.

Our progressive believers in “love” are disciples of Marx and Mill and Dewey, whether they know it or not. They don’t need to know it because, living in a world in which the burdens of law and morality have become so light, it seems obvious that we can just do without them. Marx’s and Mill’s post-political philosophies are no longer necessary—we’ve already shirked human nature, even if we have not yet arrived at paradise. The whole anthropological argument is just so . . . “yesterday.” Isn’t it obvious that each generation, each decade—now, it even seems, each year—is freer than the one it has left behind? To believe in love is to believe in today.

The love-wins attitude is a post-anthropological attitude. And it finds this attitude, well, natural—even a matter of common sense and simple decency. If a publicly imposed sexual morality and family structure are “demeaning” to some people, then why not cast them off? What could the problem possibly be? What bad consequences could possibly follow from leaving behind antiquated restraints on the freedom of human love?

From the anthropological point of view, good people have to be made; from the love-wins point of view, people are good, except to the extent that they have been corrupted and prejudiced by tradition.

If human nature is a real given, then the intricate web of moral, social, and legal norms that on balance produces civilized human beings is a precious and fragile fabric that merits our deference. If human nature is a prejudice, then good people arise spontaneously, and there can be no harm in leaving them free to express themselves. Love means never questioning the free expression of the liberated inner self—as long as the self is not corrupted by traditional “phobias,” of course.

There is a large role for human intelligence in the “love wins” viewpoint, but this role is not to know enduring laws or limits governing the human condition. Rather it is to criticize these laws and limits—to remove them where they infringe upon desire. And there is a more positive role as well: While criticism frees us from traditional restraints, technocratic reason can attempt to conquer the consequences. If sex results in unwanted pregnancy, then contraception and abortion are ready at hand. If same-sex-oriented individuals wish to have all the same choices available to them as heterosexuals, then science can make babies for them on demand.

The Abolition of Man

From the anthropological point of view, there must be consequences to ignoring the human condition and its moral, social, and political implications. There is such a thing as the natural form and limits of the human condition, and nature will have its day, whether we believe in it or not. As Rudyard Kipling wrote:

As it will be in the future, it was at the birth of Man
There are only four things certain since Social Progress began.
That the Dog returns to his Vomit and the Sow returns to her Mire,
And the burnt Fool's bandaged finger goes wabbling back to the Fire;

And that after this is accomplished, and the brave new world begins
When all men are paid for existing and no man must pay for his sins,
As surely as Water will wet us, as surely as Fire will burn,
The Gods of the Copybook Headings with terror and slaughter return!

Indeed, are not Kipling’s “Gods of the Copybook Headings” already returning, and with a vengeance? As C.S. Lewis saw with great clarity more than seventy years ago, man’s mastery over nature—the abolition of nature—can only end in man’s mastery over mankind, “the abolition of man.”

So it seems to those with anthropological convictions that the effective truth of “love wins” is finally human power unchecked by God or nature. The authority of law and of the state, which, like Marx, we may imagine can wither away to nothing, can in reality only become more absolute in the absence of any higher authority. Absolute freedom from the traditional family can only mean the state’s power against the family.

Love wins. But love also bites.

Ralph Hancock teaches political philosophy at Brigham Young University and is President of the John Adams Center for the Study of Faith, Philosophy and Public Affairs. He is author of numerous reviews, articles and books on the intersection of reason, faith, and morality, including The Responsibility of Reason: Theory and Practice in a Liberal-Democratic Age.

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Defining Marriage http://www.thepublicdiscourse.com/2015/07/15331/ http://www.thepublicdiscourse.com/2015/07/15331/#comments Thu, 16 Jul 2015 11:00:49 +0000 http://www.thepublicdiscourse.com/?p=15331

Now that the Supreme Court has taken the decision about same-sex marriage out of the hands of the American people, those of us who believe in marriage have to think about the long-term effort to restore a true understanding of marriage in our nation.

The first step is to clarify what marriage is so that we can explain it to others in a coherent way. Although there is no one way to do this, there are fundamental elements that are a necessary part of any definition.

In this essay, I merely provide one definition of marriage. My goal here is not to “prove” that this is marriage (though I offer some thoughts on each condition), nor is it to engage in a refined academic analysis of the question. I simply want to offer a relatively succinct statement of what marriage is, so that ordinary people who want to defend marriage have a clear baseline from which to understand and respond to developments in our society.

Ten Key Features of Marriage

When we say we are “defining” marriage, we are not saying that we choose to view marriage as being such-and-such, that this is what we want marriage to be. Marriage is not a conventional arrangement that society defines for itself. It is “pre-political”—it has a nature that is independent of human desires, beyond the reach of human modification. While some aspects of marriage may vary in different times and places, nevertheless, there are certain “non-negotiables,” without which marriage would not be an intelligible institution distinct from ordinary contracts.

What is marriage? Here’s my rough and ready definition: Marriage is a formal social/legal bond constituting a union of life, and particularly an exclusive sexual union, established by free consent, between one man and one woman, for life, oriented essentially toward the procreation and education of children and a life of faithful mutual support.

Let’s break down this definition by identifying ten key features.

1) Marriage is a formal social-legal bond, recognized by society. This public bond has the effect of creating legal obligations and rights between husband and wife, parent and child, and family and community. This recognition is necessary for the stability of the union, especially for the benefit of any children the marriage produces, but also for the benefit of the spouses.

2) Marriage is a community, or communion, or union of life. Through it, the spouses reciprocally give themselves to each other, sharing a common life. This sharing occurs at all the various levels of human life: physical, financial, emotional, moral, intellectual, and spiritual. The comprehensiveness of this sharing makes marital love the deepest sort of friendship.

3) Marriage is sexually exclusive. The vow of fidelity removes these two people from “the sexual marketplace,” so that they are no longer available to others as possible sexual partners. This is necessary for family stability, ensuring the emotional commitment of the bond, and checking the powerful disordering force of sexual jealousy. This norm also prevents spouses from having their attention diverted away from the children that this marriage has produced.

4) Marriage is established by free consent, because a bond of this kind (a personal commitment of self) and magnitude (for the whole of life) cannot be fairly imposed on one person by others. In fact, the free consent of the spouses to marital union is precisely what constitutes—establishes, creates—the bond.

5) Marriage is between two people—it entails monogamy. This is necessary because the ability of marriage to achieve its goal of full, mutual self-giving cannot be achieved with more than two people. A commitment to two or more people necessitates a divided and diminished commitment, a withholding of shared life. Moreover, monogamy also respects the equality of the spouses, since attempting to have such an intimate relationship with more than one person could never result in truly equal, much less fully self-giving, relationships. And it is necessary for family harmony and stability, since multiple spouses (and children by different spouses) will inevitably tend to beget various forms of competition within the family.

6) Marriage is between a man and a woman; it is a bond based on sexual complementarity. This is a major part of the sexual urge, which is not just physical. The sexual urge aspires to a certain kind of completion of the spouses, by providing access to (integrating into one’s life) different dimensions of human life (notably, the distinctive virtues and capacities typical of the other gender) that would not be achieved by one man or woman alone. The complementary qualities of men and women are important, not only for spouses themselves, but especially for children, who have access to a greater range of parental virtues and capacities than would generally be true of marriages without sexual complementarity.

7) Marriage is for life. This is, above all, for the stability of the framework for raising children, whose sense of security is intimately tied to the bond between the parents. Even parental obligations require a commitment for life (not just during the youth of the children) because what we do now is influenced by what we think of the future. (Think of the analogy of a baseball or golf swing, in which the follow-through is essential to the overall power of the swing. You have to commit to that follow-through at the beginning of the swing; without it the swing is much weaker.) The stability of the bond is also important for the spouses themselves, since a lifelong bond powerfully promotes the incentives to invest their best efforts in the marriage.

8) Marriage is oriented toward the procreation of children. This is what is really distinctive about the conjugal union, what it does that nothing else can do so well. In fact, what constitutes the distinctive marital unity of spouses is not their physical unity (which, strictly speaking, is never more than closeness or contiguity), but above all, their being, together, a single reproductive unit or principle (even in cases where their union doesn’t actually result in a child). In other, recently developed forms of procreation (in test tubes or through surrogacy or cloning), a human being is “manufactured” and does not result from an act of love. These techniques often, in practice, dilute the connection and responsibility of at least one biological parent.

9) Marriage is oriented toward the rearing and education of children, because human children develop over a long period of time, and the biologically-based parental commitment is by far the strongest, most reliable bond to ensure that development. No other people will have the same biological tie to the child, and thereby the same emotional investment. Because of this deep biological tie, the parents have the greatest natural incentive to do the best they can, in the education of their children. (Biological ties don’t guarantee parental fulfillment of obligations, of course, and children sometimes have to be raised by people other than their parents; but, on the whole, there is no other bond which can be relied on to provide a greater likelihood that children will be raised by people emotionally committed to them.)

10) Marriage is oriented toward a life of mutual spousal support, at all levels. This includes the ordinary obligation to support and care for each other (physically, emotionally, financially), in the midst of the joys and difficulties of life. The highest form of this support is the commitment to help one’s spouse grow in personal excellence or virtue, and therefore happiness.

A particularly important point to note (often lost sight of today) is that the procreation and education of children and the life of mutual support are not optional “alternative” ends, each pursuable in isolation from the other. They are rather intimately intertwined. The procreation and education of children constitutes a significant portion of the lives of the spouses—their greatest “joint project”—and calls forth their mutual cooperation, thereby contributing profoundly to their personal unity in marriage. The mutual, faithful help and support that the spouses provide each other in the ups and downs of their shared life constitutes the very context in which they conceive, bear, give birth to, raise, and educate their children.

The life of mutual support provides the stability and virtuous example that children need; on the other hand, were a marriage merely oriented to mutual support and not procreation, no social-legal bond (with attendant rights and responsibilities) would be necessary.

Falling Short in Marriage

It will not escape notice that not everything that is called “marriage” looks like this. To see why this is so, it is important to understand the nature of a definition. Especially when we are dealing with a natural and developmental being—a being that is not a product of human art and that only achieves a fuller realization of its capacities over time—we don’t define it simply by looking for some “least common denominator” in the things we call by that name.

If we did that with “human beings,” for instance, then our definition could not include the fact that human beings walk on two feet—because there are many human beings (young children) who don’t, in fact, walk on two feet, but crawl. Our definition has to focus on the fully developed, paradigmatic form of a being. So we look at healthy adult humans, not children.

Many real-life instances of the beings we are defining fall short of the full definition. Many instances of what is commonly called “marriage” are undeveloped or inadequate, falling short, in significant ways, of what a true, or good, or fully developed form of marriage is. Human weakness, ignorance, and selfishness constantly intrude in people’s lives—their married as well as their personal lives, and in social life as well as individual lives—and so, in many respects, concrete, real-life marriages do not live up to what marriage is. They can fail to do so in various ways.

Some features can vary in intensity, or qualitatively. For example, the unity or sharing of life can be greater or less, and the level of mutual support can vary. In these cases, there are real marriages, but they vary qualitatively.

Some features are clear in some cases, more obscure in others. Whether there is free consent or coercion is sometimes clear, but there are other cases that are grey areas.

Other features either exist in the marriage or they don’t: sexual complementarity and monogamy, for instance. The absence of sexual complementarity or monogamy (including marriages in which one person has previously contracted a valid, lifelong marriage bond with another person) means that an essential condition for marriage is simply missing, and so marriage is impossible. Such “unions” (for all their good intentions and genuine affection) are something other than marriage.

Finally, if marriage is based on consent, then that consent has to be consent to marriage, and not something else. Consent to a union that deliberately excludes sexual exclusivity, or permanence, or any possibility of children, or any mutual aid and support, is not consent to marriage. Here, too, we can talk of some kind of de facto union, but not of marriage, strictly speaking.

The Importance of Marriage

We have to take the question of what marriage is seriously. What many people in our country are fighting for is not merely “traditional” marriage—that is, “old” marriage, or some way marriage “used to be,” or is supposed to have been. (There was no “golden age” of marriage to which we must return. Marriage has always been wounded in various ways, though worse in some times than others.) What is worth fighting for is simply marriage—real marriage.

We should not offend others needlessly by insisting that people who have good-faith, sincere beliefs that they are married, are not really married. At the same time, though, marriage is important, and we cannot simply let other people define it for us. Recognizing what marriage is, we must, as tactfully as we can, hold that reality up as a truth for everyone.

Christopher Wolfe is Professor of Politics at the University of Dallas. He is the author of Natural Law Liberalism (Cambridge, 2006).

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"Defactualization" Is Causing American Schools to Become Bastions of Anti-Intellectualism http://www.thepublicdiscourse.com/2015/07/14494/ http://www.thepublicdiscourse.com/2015/07/14494/#comments Wed, 15 Jul 2015 11:00:45 +0000 http://www.thepublicdiscourse.com/?p=14494

Years ago, there was a television show called Dragnet. In this popular drama, which largely reenacted real life events, Sergeant Joe Friday would often say, “Just the facts, ma’am, just the facts.” In today’s public schools, it appears that teachers often ask for the opposite: “Just your opinion, child, just your opinion.” In a public school system that emphasizes the subjective over the objective and opinion over fact, it is no wonder that so many American students lack basic knowledge and yet have opinions galore.

According to the National Assessment of Educational Progress (NAEP), the nation’s chief test of student achievement, American students score lower in history than any other subject, and their test scores have been declining. On the history test for fourth graders, only 9 percent of students could identify a picture of Abraham Lincoln and give two reasons why he was an important figure. Most twelfth grade students did not know the main ideas and purposes of the Declaration of Independence and the Constitution. Meanwhile, recent data indicate that SAT verbal scores have reached an all-time low.

Most high school students do not realize China’s role in the Cold War and most have little overall knowledge of the Cold War. This is especially disturbing because many historians are asserting that the Ukrainian crisis has led us into Cold War II. Moreover, former Soviet Premier Mikhail Gorbachev declared to Time Magazine that the United States and Russia have already entered into a second Cold War over the past few months.

Veritas and Virtue in Education

Jesus famously declared, “You will know the truth and the truth will set you free.” The Ivy League universities were founded on this principle. The Puritans, who founded Harvard in 1636, believed that the quest for truth did not end in the spiritual realm. Rather, they believed that Christ’s assertion applied to all of life, demanding an attitude of both intellectual and academic vigor. This is why, from the 1600s through the 1800s, the nation’s most prominent universities placed such an emphasis on educating ministers. It was the common belief of the time that for the good of society, the most wise and virtuous people should also be the most learned. This conviction is reflected in the mottos of seven of the eight Ivy League universities and those of many other colleges and universities founded at the time. Harvard University’s motto is “truth,” and the crest bearing that declaration (“veritas”) even appears on its football uniforms. Yale University’s motto is “light and truth,” Columbia’s is “In Thy light shall we see light” and Penn’s is “Laws without morals are useless.”

Past American leaders were not alone in their belief in the importance of truth, nor are they the only ones to argue that, for the health of society, virtuous people should be the most learned. Nearly 2,000 years apart, Cicero and Martin Luther King Jr. came to the same conclusion: The most dangerous people on earth are those who are educated or intelligent, but are not virtuous.

In contemporary American society, however, truth is regarded as a four-letter word. Truth has been relegated to a secondary position in the nation’s public schools, universities, political forums, and public squares. Instead, diversity and subjective opinion have been elevated to a higher place of prominence. Diversity of views is often a valuable thing, but it should not be elevated so highly that facts are denied. A more balanced and intelligent view of diversity is needed.

If one esteems diversity too highly, at the expense of creating consensus and pursuing truth, then many of the essential building blocks of a functioning society will be undermined, which may lead to chronic social division. Consensus is attainable consistently only in a nation that actively pursues truth. Diverse viewpoints can help us to see truths that we may have otherwise overlooked, yet truth-based consensus is a far more reliable and worthy goal than the simple existence of diversity.

Truth and Facts

To many, truth is only of value if it is convenient and supports one’s ideology. Over a decade ago, I coined the term “defactualization” to describe societies in which facts are either habitually denied or ignored due to an emphasis on subjectivity. In my view, defactualization is quickly becoming one of the greatest crises of modern times.

Many Westerners are increasingly denying biological and historical facts. Numerous Americans call life in the womb not life. Laws are being passed in some states that assert that it does not matter what sex you are; what matters is the gender that you say you are.

Regarding historical facts, there is of course some room for differences in interpretation. Nevertheless, history is made up of facts that cannot be denied, from the Holocaust to Islamic military expansionism in the 700s AD to the bombing of Pearl Harbor. However, whatever one’s view of abortion’s moral status, a child is not an extension of his or her mother’s flesh. The child has his or her own unique DNA. That is a fact. Any debate about abortion that denies that reality succumbs to the quagmire of defactualization.

Any debate about why President Truman chose to have the atomic bomb dropped on Japan and not Germany must address the fact that the Germans surrendered in early May of 1945, well before the atomic bomb was developed and tested in New Mexico in July 1945. The purpose of this statement is not to claim that Truman was right to drop the bomb on Hiroshima and Nagasaki. The point is this: Facts have to be an important component of any intelligible debate. Different perspectives will always exist, but opinions do not negate facts.

The Danger of Education without Facts

In thousands of public schools in the United States and Western Europe, defactualization is expanding exponentially. This trend should be called what it is: a modern form of anti-intellectualism. In this type of environment, those with the facts behind them often do not prevail. Instead, debates are won by those with the loudest mouths and the Machiavellian ability to manipulate the emotions of others. As a result, the vast majority of students at both the high school and university level hold views based on a dearth of evidence and a plethora of biased opinions.

Truth sets both individuals and nations free, because basing one’s life on truth and facts creates unity and agreement. Differing opinions are fine—in fact, they are a healthy part of living in a democratic society. However, opinions must be based on facts. The defactualization of our public schools and universities undermines the strength of American democracy. As Thomas Jefferson warned, “A properly functioning democracy depends on an informed electorate.” Currently, those who have opinions with a dearth of facts are seeking to intimidate those who value truth.

Many professors present a terribly incomplete view of the world. They present wrongs committed by the United States with a biased anti-American tone and frequently eschew examining the plethora of injustices committed by a variety of nations, under the banner that to do so would be politically incorrect. Sadly, however, this has created a learning environment in which students are taught to be more concerned about what is politically correct than what is factually correct.

The egregious acts of leaders of the far left, particularly socialist and communist leaders, are often overlooked or understated. Many historians regard Mao Zedong as the foremost mass murderer in history, yet many college professors whitewash his ruthlessness. Joseph Stalin’s regime is thought to have caused twenty to forty million deaths, second only to Mao’s regime. Here again, few American students are adequately informed about the horrors perpetrated by foreign dictators.

Many college professors believe it is somehow acceptable to cover up salient features of people’s lives. For example, many sociology professors lionize Margaret Sanger (1883-1966), the founder of Planned Parenthood. It is clear from her own words that she wanted to limit the number of people of color in the United States via abortion and other means. She was undeniably a racist and eugenicist, who had little or no compassion for immigrants. Yet alarmingly few high school and college students know this.

Sensitivity is clearly needed when discussing certain issues. That is love. However, the use of political correctness to deny facts is the opposite of sensitivity.

Parents and children alike are looking for environments in which facts still matter. Opinions count, because people and their experiences count, but they do not change facts. The temptation to be politically correct at the expense of accuracy is nothing new, but it is a temptation that must be resisted if we hope to give our children a strong education.

William Jeynes is Professor of Education at California State University, Long Beach.

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Gender Identity http://www.thepublicdiscourse.com/2015/07/15308/ http://www.thepublicdiscourse.com/2015/07/15308/#comments Tue, 14 Jul 2015 11:00:23 +0000 http://www.thepublicdiscourse.com/?p=15308

A true change of sex is not possible, I argued yesterday here at Public Discourse. But perhaps something more modest is possible. Perhaps one can change one’s gender.

To answer that question, we must ask: What is gender? Yesterday I mentioned Witt’s account: “Gender” is one’s reproductive role as governed by the social norms applied to agents in that role. I think there is something right about Witt’s approach.

Why do we have or need gender? Because the role in question is one that is essential to the existence of society. Witt sees the existence of gender as something that would or could disappear if the functional role it mediates were to be taken up by, for example, robots. This gives us a clue, which I will attempt to articulate by means of the concept of a “persona,” discussed by John Finnis in his paper “Personal Identity in Aquinas and Shakespeare.”

A persona is, on Finnis’s account, “an artifact, intelligible and assessable as a means of communication, and by all the criteria applicable to the arts.” In the adopting and shaping of one’s persona, one adopts and shapes something “whereby one communicates to others some truth or falsehood about oneself.” No doubt the materials available for one to make use of in adopting and shaping one’s persona are to a great extent cultural, and we could follow Witt in recognizing that adoption of a persona typically brings with it a set of social norms and expectations that partially define what it means to have that persona, and to which the persons adopting that persona are subject, and answerable.

I suggest that we understand gender along these lines. One’s gender is one’s persona insofar as it is adopted and shaped with a view to communicating some truth or falsehood about oneself. Well, (i) which truth(s) or falsehood(s)? And (ii) why must they be communicated in this way?

We could say (i): The truths or falsehoods are those about one’s sex, and one’s embrace or rejection of the orientation towards the one form of the marital good (husband or wife), and one form of parenting (father or mother), that one’s sex makes possible.

And we could likewise say (ii): These truths must be communicated precisely because of the massive significance of the good of marriage and family for personal and social well-being. Indeed, (ii) makes clear why, as a matter of culture, considerable resources of a particular form are made available to individuals to make use of, or even simply to fall in line with, their gender personae.

And it makes clear too why those resources are not typically presented as optional (even though many of them are determinationes, for surely gender personae can reasonably vary) but rather as normative. Culturally, socially, and personally, this is too significant a domain of human existence, too pervasive and foundational a form of human well-being, for reasonable persons and societies to want systematically to encourage ambiguous, misleading, corruptive, pernicious, or otherwise problematic gender self-portrayals.

Changing One’s Gender

In an upright culture, one probably does not need to think much about one’s “gender”; the social forms and resources necessary for one to communicate the relevant truths are ready to hand and there is little to tempt one to the adoption of some other gender persona than the one recognized culturally as accompanying one’s sex. But the possibility of such temptation raises the following natural question.

Can one change one’s gender? It may surprise some that I think the answer is yes. One may, for example, take as a mask some new gender persona, adopting and shaping cultural materials to signify some truth or falsehood about one’s sex.  That falsehood might be willing, as with so many characters in Shakespeare who adopt the persona of a member of the opposite sex for comic and dramatic purposes.

More dangerously, the falsehood might be willingly communicated, and the persona willingly adopted precisely in order to reject the goods and norms that sex and its truthful communication makes possible. A change in gender would thereby be a form of rebellion.

Or, finally, it might be an unwilling falsehood. Plato tells us that the greatest falsehoods are of this sort, unwilling because they are not recognized by their tellers as falsehoods.

Surely there is a great deal of “gender confusion” out there, much of it made possible by the cultural rejection of the goods and norms just mentioned, and the encouragement of young persons, from increasingly early ages, to adopt gender personae that likewise reject those goods and norms. Some of it (as with the related desire to change one’s sex) is surely, as Paul McHugh has argued at Public Discourse, a matter of mental illness or some other pathology. To the extent that this is so, it is a mark of a heartless culture that it encourages such confusion even to the point of encouraging bodily mutilation as a solution to gender dysphoria and prohibiting therapy that might be psychologically and spiritually beneficial. By such means, unwilling falsehoods are embraced and transmitted, as McHugh noted.

All this leaves many questions. For example, there is the question of how broadly or narrowly the parameters of gender personae for truthful and reasonable communication of one’s sex and embrace of orientation towards the marital good should be set. It is tempting to some, but I think implausible, to suppose that the appropriate personae with which to communicate in these ways are narrowly framed, such that some particular and closely drawn stereotype of masculinity or femininity has a strong normative claim. There are many ways of being masculine and feminine, and there are traits more characteristic perhaps of one sex that should be better integrated into the gender personae of the other.  Is a man who is a good listener “more feminine”?  Perhaps, but that seems to be a good thing.

On the other hand, it does seem clear that in general the male and female sexes are associated with somewhat different ranges of capacities and dispositions, which are important for a person’s orientation to the entire range of human good, not just that of marriage and parenting.  The attempt to efface all gender differences as they emerge from sexual differences (and are seen, for example, in the ways that male and female children characteristically play) is a mistake, and one that could only be furthered only by a kind of parental or, on a large scale, cultural tyranny.

Finally, it seems equally clear that the range of misshaped gender personae extends not just away from its appropriate communication of sex (the direction of the transgendered) but, so to speak, upwards from it, in an exaggeration of what is to be communicated (the hyper-masculine or -feminine). So all things considered, there is something to “get right” in one’s gender persona, even if the appropriate shape of that persona is underdetermined. That “getting right” is probably best understood as a part of what one must do in order to discern and embrace one’s overall personal vocation.

There are many other questions, and perhaps the framework I’ve tried to articulate here will not be successful for answering some (or all) of them. But the consequences of failure to give these questions adequate reflection are clearly grave, both for persons beset with gender confusion, and for a culture struggling to find its footing on matters of sex and marriage.

Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. He is the author of Lying and Christian Ethics (Cambridge, 2014).

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Sex Identity http://www.thepublicdiscourse.com/2015/07/15306/ http://www.thepublicdiscourse.com/2015/07/15306/#comments Mon, 13 Jul 2015 11:00:11 +0000 http://www.thepublicdiscourse.com/?p=15306

I reflect here on our identity as sexed beings. In tomorrow’s essay I consider what it means for us to be gendered beings. But to do so, it is important first to make some distinctions concerning sex, intersex, and trans-sex on the one hand, and gender and transgender on the other.

The vast majority of human beings are born as members of one of the two sexes, male and female. In the paradigm case, those individuals are genotypically and phenotypically easily identifiable as one or the other, and their sexual identity is clear. But for a smaller number of individuals, things are not so obvious; the possibilities include individuals with ambiguous genitalia, mismatched genotype and phenotype, and perhaps some form of hermaphroditism.

The term “intersex” is now used to describe these cases. For some intersex persons, surgery is recommended and undertaken to bring phenotype and genotype into closer alignment with one another. But there is also debate within the medical community about what the proper treatment of genuine sexual ambiguity requires. Such questions do not fall within the scope of my consideration here.

For various reasons, some individuals, not in any obvious way manifesting sexual ambiguity, come to believe that they can and should change their sex. The terms “trans-sex” or “transsexual” are used to refer to the phenomenon of individuals who have undergone some form of medical intervention, typically including surgery and hormonal supplements, in an effort to make a change from the male to female sex or vice versa.

Only males can father a child and only females can be a mother; these two functional roles are thus, as Charlotte Witt writes in The Metaphysics of Gender, “required for a society to exist.”  On Witt’s account, gender is to be understood in terms of the two reproductive roles an “individual is recognized by others to perform,” and the content of the gender role is a matter of what norms are socially applied to persons in those reproductive roles. As she puts it, “Although I do not think there is a bright line distinction between sex and gender, the distinction is useful in explaining the difference between the biological function of reproduction and the socially mediated reproductive function.”

For various reasons, some individuals come to believe that they can and should change their gender. Depending perhaps on how early they have been encouraged to consider this possibility, they also can identify with a gender role other than that usually accompanying their sex, without any sense that they are changing genders. Since these decisions and identifications need not be accompanied by an attempt to change sex, such individuals are typically described as “transgender,” as distinguished from trans-sex.

All these phenomena raise questions of identity and morality, which are the topics of these essays. In this first essay, I examine the question of what sex is and whether it can be changed.

Our Sexed Identity

Our identity as animal organisms is the foundation of our existence as selves. But fundamental to our existence as this animal is our sex. We are male or female organisms in virtue of having a root capacity for reproductive function, even when that capacity is immature or damaged. In human beings, as is the case with many other organisms, that function is one to be performed jointly with another human being; unlike the digestive function, no individual human being suffices for its performance.

Accordingly, reproductive function in human beings is distributed across the two sexes, which are identified by their having the root capacity for one or the other of the two general structural and behavioral patterns involved in human reproduction. In male humans, this capacity is constituted by the structures necessary for the production of male gametes and the performance of the male sex act, insemination. In females, the capacity is constituted by the structures necessary for the production of oocytes and the performance of the female sex act, the reception of semen in a manner disposed to conception.

As noted above, there are persons who present genuine sex ambiguity. Some theorists of sex and gender have made much of these cases in arguing that the simple “binary” of male and female fails to do justice to the true number of sexes there are. And of course, opening up the number of possible sexes would add a certain plausibility to the proposed possibility of changing one’s sex.

This seems to be a failure to recognize the role of paradigm cases. The distinction, recognized since Aristotle, between the central case of a kind, and cases that in one way or another decline from that central case, has application outside the natural order. For example, Thomas Aquinas gives us an account of law as an ordinance of reason, given by one with authority, for the common good, and promulgated. This is the paradigm case, law in good working order. But it is easy to find examples of “law” that do not share all these features of the paradigm.

There are paradigm cases in the natural world also, as well as entities that decline from the paradigm. Organisms, for example, come in ones: that is part of the nature of what it is to be an organism, what it is to be an organism in the paradigm case. But the Hensel twins, possessing two arms and two legs but also two heads between them, are neither precisely one nor two. This case does not refute the claim about organisms coming in ones; neither, I conclude, do the varieties of sex-ambiguity refute the claim that in the central case of biological existence for members of our species, the organisms—and hence we—are either male or female.

Changing One’s Sex

Can it be reasonable or even possible to change one’s sex? Some who attempt to do so claim that their phenotypic (or genetic) properties are at odds with their real sex, which is understood (by them) to be a feature of some more primordial reality to which they have privileged interior access. Others deny that there even is such a thing as one’s “real” sex, and thus believe that a person can change it as he or she wishes.

If sex is to be understood in the way I have suggested, then it follows that every surgical attempt to change sex must involve a mutilation of the bodily capacity that identifies one’s true sex (such attempts must be distinguished, of course, from attempts to repair a damaged sexual capacity, and from attempts to resolve sex ambiguity). Moreover, since sexual capacity is what in turn capacitates us for marriage, understood as a one-flesh union, there is a further mutilation involved, insofar as such surgery incapacitates one from performance of an act necessary for the realization of the basic good of marriage. Since it is unreasonable to mutilate oneself or close oneself off from a basic good, attempts to change sex are unreasonable.

Nor does it seem to me that such a change is genuinely possible. A genuine sex change would make it possible for a male to engage in the kind of sex act characteristic of the female sex, or vice versa. Now a “sexual act” is identified by reference to the sex organs involved. So attempts to change sex (as opposed to gender, about which I have more to say tomorrow) are most plausibly pursued by attempts to change one’s sex organs.

But what those organ are—a penis or a vagina—can only be identified by reference to the role those organs typically play in the overall biological economy of a sexed human being. The penis typically penetrates the vagina but then also deposits sperm, which is in turn capable of procession towards and penetration of the female oocyte; the vagina is typically a receptacle and conduit of sperm to the oocyte, and so on. And both organs’ identities are linked not only forward in these ways to the functions they might eventually perform, but are also linked backward to previous events and functions. For example, the origin of male gametes is to be found in the production of primordial germ cells that occurs many years before sexual intercourse is even possible, but this production occurs in order that sperm will eventually be produced which the penis will eventually deposit. An organ lacking this historical role in the biological economy is not a penis.

One cannot therefore make a vagina, say, simply by creating an orifice in a particular place. Absent some relationship to a vagina’s larger biological functionality in the organism, no orifice is a vagina. Nor can one create a penis by creating something that will become enlarged on stimulation. One could only genuinely make a penis or vagina by re-creating the entire biological context within which those realities are what they are.

But those larger biological contexts are themselves not freestanding in the organism: The organism is primordially sexed from its very first moment, and its biological development involves the working out through time of capacities that were present at the beginning for the development of those organs in their appropriate contexts.

It is possible, as it turns out, to transplant a penis in a man so that it becomes truly part of his biological life. The situation is relevantly similar to that of a heart transplant. The organ is integrated into a biological matrix that is fundamentally oriented towards that organ’s presence. But no transplant, much less any reconstructive plastic surgery, can integrate a male sex organ into the biological life of a being whose root capacities are female, or vice versa. Nor is it possible that an entirely new set of capacities, dynamically oriented contrary to the orientation already worked out from within the organism’s biological identity, could be integrated into the life of that organism in such a way as to really be a part of his or her biological life.

Thus, attempts to change one’s biological sex all fail. That is an undefeatable reason against trying to do so.

Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. He is the author of Lying and Christian Ethics (Cambridge, 2014).

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Boyhood: A Profoundly Human Story http://www.thepublicdiscourse.com/2015/07/14789/ http://www.thepublicdiscourse.com/2015/07/14789/#comments Fri, 10 Jul 2015 11:00:08 +0000 http://www.thepublicdiscourse.com/?p=14789

Boyhood is one of the most special movies of this decade, but it is not one of the best movies of this decade. It deservedly received a bevy of Oscar nominations—six in all, including nominations for Best Picture, Best Director, and Best Screenplay, but winning only for Best Supporting Actress (Patricia Arquette).

Why has Boyhood, a modest film with a paltry budget of only $4 million (by contrast, Guardians of the Galaxy had a budget of $170 million), received so much attention? The first two reasons for the garlands that this good movie has garnered are obvious; the third reason is much less obvious, but much more important.

First, this film has received so much attention not because of the story it tells but because of the story of how the movie was made. It is the only dramatic (non-documentary) movie in cinematic history to have been filmed over a twelve-year span, with the same cast, shot by the same director. Boyhood’s story could not be simpler: it charts the growth of a family—and the growth of one young boy in particular—over twelve years. We follow Mason (Ellar Coltrane) from the time he is five years old until he is ready to go off to college at the age of eighteen. In other words, we witness his growth from a child to an adolescent on the verge of adulthood.

Second, this is one of the more “relatable” films of recently memory. There are no superheroes, no special effects, and no strange twists of fortune and fate. Instead, there is a brother, a sister (Lorelei Linklater, the director’s daughter), and a mother (Patricia Arquette) and father (Ethan Hawke) who are divorced. There is no real “plot”; rather, there are a series of episodes from the family’s life. Everyone who watches this movie will see something strikingly similar to an event, relationship, or emotion one has experienced in one’s own life, because this is a movie that could be made about any life. It is a film about one particular family, but it is a film that could be made about any family.

Epiphanies of the Ordinary

Though Patricia Arquette and Ethan Hawke have never been better, the boy is, well—how should we put this?—“meh.” Let’s remember that at five years old, he was not an “actor” who “chose” this project in the way that Ethan Hawke did; his parents volunteered him for the role when he was a child. Fortunately, the quality of the boy’s acting is, in a certain sense, inconsequential to the meaning of this movie. In fact, one could argue that the boy’s blandness in fact bolsters the film’s brilliance; the boy is an archetype, a blank slate upon which we all project the memories of our own childhoods and relive those long-forgotten moments of our earliest years.

There is no “story” per se in Boyhood, but the movie houses a profoundly human story at its heart. Boyhood illustrates Jewish political philosopher Leo Strauss’s astute observation that we must begin with the particular in order to reach the universal, for the universal grows out of the particular. Even though we may reach the universal, we never completely disassociate ourselves from the particular—and it is through particular love (love for our self, for our family, for our tribe, for our country) that we reach universal love for all humankind. Thus, it is precisely because Boyhood is a particular story, set in a particular town, and taking place in a particular state, that it becomes a universal story in its appeal and in its import.

But the universalism, as Saul Bellow reminds us in his great novel Herzog, must cohere into something larger, more significant, more meaningful:

All children have cheeks and all mothers spittle to wipe them tenderly. These things either matter or they do not matter. It depends upon the universe, what it is.

Boyhood resonates because these things do matter. And these things matter because we do choose to see ourselves as living in a universe where these things matter. And so, it does matter that Mason’s mom fights through a series of poor marital choices and a difficult career path in order to secure a somewhat stable upbringing for her children. And it does matter that she does their laundry and cooks for them and cleans for them and organizes graduation parties for them. It does matter that Mason’s dad tries his best to stay close to his children, and it does matter that he takes Mason to Houston Astros games and camping trips. It matters that Mason’s mom tries to coolly distance herself from her children when she sends them off to college, but it matters more that she cannot fight off her irrepressible motherly emotions and ends up crying when Mason departs for the University of Texas.

All of these things matter in the way all quotidian things matter: as Joycean “epiphanies of the ordinary.” And these things matter to every family for the same reason this movie matters to everyone who sees it: because the movie functions within us in a profound, deep, and religious manner.

The Compression of Time

The third reason this movie is so powerful is the most subtle, but most important reason of them all. Whether or not viewers realize it, the film taps into the most primal, primordial, perennial concerns we all have: the unstoppable march of time and the meaning of life.

Boyhood takes twelve years and compresses them into less than three hours. To see the movie’s characters rapidly age before our eyes reminds us of our own mortality, and compels us to ask, as Mason asks his father towards the end of the film, “what’s it all about?”

Mason: So what’s the point?

Dad: Of what?

Mason: I don’t know, any of this. Everything.

Dad: Everything? What’s the point? I mean, I sure as shit don’t know. Neither does anybody else, okay? We’re all just winging it, you know? The good news is you’re feeling stuff. And you’ve got to hold on to that.

The feeling elicited by watching Boyhood is similar, though not quite as powerful, as the feeling imparted by the magisterial Up Series, a monumental project in documentary film in which director Michael Apted took a group of English schoolchildren and filmed interviews with them every seven years from the time they were seven years old up until the present day. The first of these documentaries was titled Seven Up (1964); the most recent documentary in the series was filmed when they were all 56 years old: 56 Up (2012).

When we watch Boyhood or the Up series, we sense how quickly time moves, and when we think about the passage of time and the swift, inexorable path along which our lives progress, we inevitably ask, “what’s it all about?” If we’re here for such a short time, and the time we do have flies by, and is lost forever once it’s gone—then what’s the point? Why do I exist? Why do we exist? Does life have a purpose?

But beyond these questions, what is that funny feeling we feel when watching Boyhood or the Up series? It is a certainly a sentimental, melancholic feeling, particularly for parents who have experienced the roiling emotions of sending a child off to college. It is a feeling of mono no aware, a Japanese term I learned about from Roger Ebert, which means the appreciation for, and heightened awareness of, the ephemera of time. It is also, surprisingly—and significantly—a religious feeling.

Religious Feelings

There is something about observing a compression of time, or experiencing the swift passage of time, that engenders those mysterious sensations that we term “religious” (or “numinous”) feelings—those sensations we receive that connect us to something that is greater than ourselves; those awe-some feelings of transcendence that sound the simultaneously melodious and awe-full sonnets of the supernatural and the spiritual within us; and those mystic chords of memory that move us to communion with others in our community who live in other regions of the globe and in other times of history.

This is what little Hans Castorp felt when, in Thomas Mann’s The Magic Mountain, his grandfather would show him the family christening basin:

On the back, engraved in a variety of scripts, were the names of its successive owners, seven in number, each with the date when it had passed into his hands. The old man named each one to his grandson, pointing with beringed index finger. There was Hans Castorp’s father’s name, there was Grandfather’s own, there was Great-grandfathers’ (“Urgroßvater”); then the “great” (“Ur”) came doubled, tripled, quadrupled, from the old man’s mouth, whilst the little lad listened, his head on one side, the eyes full of thought, yet fixed and dreamy too, the childish lips parted, half with awe, half sleepily. That great-great-great-great (“Ur-Ur-Ur-Ur”)—what a hollow sound it had, how it spoke of the falling away of time, yet how it seemed the expression of a piously cherished link between the present, his own life, and the depth of the past! …. Religious feeling mingled in his mind with thoughts of death and a sense of history, as he listened to the somber syllable; he received therefrom an ineffable gratification—indeed, it may have been for the sake of hearing the sound that he so often begged to see the christening basin. . . .

The little one looked up at Grandfather’s narrow grey head, bending over the basin as it had in the time he described. A familiar feeling pervaded the child: a strange, dreamy, troubling sense: of change in the midst of duration, of time as both flowing and persisting, of recurrence in continuity—these were sensations he had felt before on the like occasion, and both expected and longed for again, whenever the heirloom was displayed.

These, then, are the feelings we feel when we see Boyhood and the Up series: the “falling away of time,” the “piously cherished link between the present, [our] own [lives], and the depth of the past”—these are “religious” feelings, and they are feelings that, somehow simultaneously, we both long for and dread, yet long for again and again. These are the feelings that are behind the remarkable resonance of Boyhood.

Daniel Ross Goodman, a writer and rabbinical student at Yeshivat Chovevei Torah (YCT) in New York, is editor-in-chief of Milin Havivin, the YCT Journal of Jewish Studies. He holds a law degree, and his writings on art, religion, law, literature, and film have appeared in The Weekly Standard, Journal of Religion & Film, Religious Studies Review, Bright Lights Film Journal, Moment Magazine, Mosaic Magazine, South Texas Law Review, The Cleveland Plain Dealer, Haaretz, and Harvard Divinity School Bulletin.

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Justice Kennedy and the Lonely Promethean Man of Liberalism http://www.thepublicdiscourse.com/2015/07/15286/ http://www.thepublicdiscourse.com/2015/07/15286/#comments Thu, 09 Jul 2015 11:00:02 +0000 http://www.thepublicdiscourse.com/?p=15286 Obergefell v. Hodges decision is anchored in the liberty to “define and express” one’s identity. But this view of man is not as exalted as it seems. According to Kennedy, self-defined man, if he’s unmarried, remains tragically lonely, and without state recognition, might even doubt his own dignity.]]>

Conjured as it was from Justice Kennedy’s imagination, the Supreme Court’s decision in Obergefell v. Hodges has little to teach us about the Constitution. It does, however, afford us keen insights into the liberal worldview. In the opinion, it is less Anthony Kennedy the Supreme Court Justice than Anthony Kennedy the aspiring liberal political theorist who speaks.

Woven throughout his musings on the dynamic synergies between the various clauses of the Fourteenth Amendment is the central premise of modern liberalism: individual autonomy. It is the very first argument that the Court offers on behalf of the newfound constitutional right to same-sex marriage.

Indeed, in the opening sentence of the decision, Kennedy proclaims all individuals free “to define and express their identity,” thereby echoing his even more grandiloquent pronouncement in Planned Parenthood v. Casey that 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.”

On this foundation, the edifice of modern liberalism is built. We are all sovereign individuals, radically free to fashion and refashion ourselves into anything we so please at any point in our lives. Man is the undefined animal. He is auto nomos—self-legislating. Neither God, nor nature, nor tradition, nor the obligations he previously contracted may hem him in. Bruce Jenner may become Caitlyn whenever she so pleases—and then become Bruce again if he wants.

Beyond the rudimentary demands of refraining from harming others, nothing may constrain the choices we make in defining and redefining our identity. This is democratized, domesticated Nietzscheanism. Prometheus not fully unbound—just mindful of the rights of others. This, it should be pointed out, is also the starting-point of libertarianism—but also its end point. Not so for liberalism.

Loneliness, Insecurity, and the Need for Recognition

Liberalism’s exalted view of man’s limitless possibilities, paradoxically enough, is not accompanied by an equally exalted view of his inner strength and resolve. One might think that liberalism would encourage individuals to trust in themselves and to be scornful of society’s staid bourgeois conventions in defining and expressing their identity.

It doesn’t. For all his purported god-like powers of self-creation, liberal promethean man is actually a weak, insecure, and isolated individual. It is not enough that he define and express his identity. He needs others to recognize it, embrace it, and celebrate it. He needs the state to confer dignity upon it.

Otherwise, he may find himself marginalized by his peers, crippled by their disapproving looks, and insecure in his choice of an identity. After all, a particular lifestyle or living arrangement may not be illegal, but it can still be viewed as dishonorable by some. Even before the Court’s ruling, gay couples could marry in a house of worship or banquet hall in any of the states that still defined marriage as the union of a man and a woman. But they carried the lack of state recognition for their marriages like the mark of Cain.

“Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty, ” explains Kennedy. The Court’s opinion is replete with references to stigma, hurt, and humiliation. “It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.” It is therefore incumbent upon the state to dignify them. As Matthew Franck wrote in Public Discourse last week: “In Kennedy’s mind, the Constitution has been converted into a great Dignity Document.”

An earlier generation of liberals would have told the man to go to hell with his marriage certificate. “We don't need no thought control,” they would have yelled. “All in all you're just another brick in the wall!” To have the suits recognize your alternative lifestyle would have defeated the whole purpose of embracing it in the first place.

Contemporary liberalism, by contrast, views man as a weak and fragile creature. Adversity doesn’t forge character. It stigmatizes and demeans. Unless others affirm our choices, they are worthless. We have no unshakable inner convictions or faith. We are all insecure.

Promethean man, it turns out, is a pathetic creature. He thinks himself the measure of all things, but must in fact have his solipsistic existence be publicly affirmed and dignified by the state. He is simultaneously everything and nothing.

Kennedy’s Feigned Appeal to Nature

Liberalism’s celebration of human autonomy is obviously incompatible with any conception of an unchosen nature that restricts our scope of action. Nevertheless, Kennedy twice appeals to the idea of a permanent nature in the decision. Homosexuals have an “immutable nature,” he asserts. They are born gay and cannot change. So are heterosexuals, bisexuals, and all other flavor-du-jour-sexuals for that matter: “sexual orientation is both a normal expression of human sexuality and immutable.”

The essence of liberty is the freedom to define and express one’s identity, just not when it comes to sexual orientation, which is innate and immutable. We can choose our gender—that is not fixed at birth—but our sexual orientation is handed down to us by the gods and must be accepted with passive resignation (for a contrasting view, see this Public Discourse essay by Paul McHugh and Gerard Bradley).

Turning to marriage, Kennedy implicitly carves out another exception to the realm of autonomy. Marriage, though clearly not possessing a permanent nature, is nevertheless “essential to our most profound hopes and aspirations.” This implies that happiness outside of marriage is not possible. No one will be forced to get married—but all who aspire to be happy (and who doesn’t?) will want to. Marriage is no longer what earlier liberals called an “obscene bourgeois institution” or “a comfortable concentration camp.”

Only marriage can respond “to the universal fear that a lonely person might call out only to find no one there,” writes Kennedy. Not to marry is to “be condemned to live in loneliness.” Lovers, friends, parents, siblings, cousins, aunts, uncles, nephews, nieces, neighbors, coreligionists, brothers-in-arm, colleagues—none of them can be counted on to respond to our lonely cries of anguish. All bachelors are not only unmarried—they’re also unhappy.

All this adds up to a really interesting coincidence. In deliberating on the question of gay marriage, Justice Kennedy proclaims that we are absolutely free to be who we want to be—except when it comes to gayness and marriage. Only Kennedy’s syllogism trumps autonomy:

  1. Everyone has a right to pursue happiness.
  2. No happiness is possible outside of marriage.
  3. Sexual orientation being immutable, gay marriage is therefore a right.

Either Kennedy is a sloppy thinker who hasn’t thought through the implications of the autonomy he celebrates, or this is a calculated move on his behalf to elicit public support for his pronouncement by bending his argument to appeal to two widespread beliefs: people are not responsible for their genes, and marriage is good.

Either way, this is not a rigorous argument. But it is fitting that a decision that reveals the contradictions of modern liberalism should also reveal the contradictions of Kennedy’s arguments.

David Azerrad is director of the Heritage Foundation’s B. Kenneth Simon Center for Principles and Politics.

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The Case of the Pro-Life Movement: On Demography and Marriage http://www.thepublicdiscourse.com/2015/07/15281/ http://www.thepublicdiscourse.com/2015/07/15281/#comments Wed, 08 Jul 2015 11:00:35 +0000 http://www.thepublicdiscourse.com/?p=15281

Social liberals have gotten their way. The Supreme Court has imposed a socially liberal policy preference on the entire country by way of a single, sweeping decision. Sober-minded political analysts—even within the conservative movement—remain pessimistic about social conservatism’s long-term prospects. Indeed, surveys show that young people—tomorrow’s voters and parents—overwhelmingly oppose social conservatives on their signature issue.

After Obergefell v. Hodges, do these circumstances warrant despondency among those remaining supporters of marriage as the union of husband and wife? Not at all, for the same situation faced pro-lifers during the 1970s. Old laws and mores were overturned, and people seemed to like it. Then, too, analysts doubted the pro-life movement’s life expectancy, for a couple of reasons.

First, as the post-Roe abortion rate increased, so did the number of people who knew someone who had an abortion. Some thought that such people would be motivated to keep abortion legal, for the more abortions there were that occurred, the more the reality of abortion would confront people. As people became acquainted with the pressures facing women in difficult circumstances, it was supposed, they would become more sympathetic with those who found a solution in abortion.

But even though the abortion numbers dramatically increased, people never really became desensitized. Many physicians did not want to perform abortions, and in fact some abortion advocates are worried about the decreasing numbers of physicians willing to perform them. But more importantly, many women who obtained abortions regretted their experience, and many men who were involved regretted their involvement. Ultrasound technology would quickly develop, and vivid pictures of unborn children would start to appear on refrigerators and bulletin boards. All in all, even though the incidence of abortion increased, many Americans simply never accepted Roe v. Wade the way they accepted previous Supreme Court decisions involving privacy and contraception.

Secondly, there were the facts to deal with. A number of 1970s opinion surveys revealed growing support for legal abortion, especially among young people. Of these, the General Social Survey (GSS) was and continues to be the most detailed, having collected the public’s opinions on abortion since the early 1970s. Nearly every year, the GSS asks respondents whether or not abortion should be legal in each of six circumstances, ranging from hard cases involving rape or incest to easier ones concerning relatively unrestricted elective abortions.

Someone analyzing the GSS in 1975 might have gotten the impression that in the pro-choice position lay America’s future. In fact, countless surveys showed that young adults were far more likely to support legal abortion than the elderly. But someone analyzing the GSS forty years later could be excused for drawing a very different conclusion. Indeed, the GSS shows that young adults are actually the most pro-life age demographic. Supporters of traditional marriage should take comfort in this fact; it is reasonable to hope that the marriage situation—both culturally and legally—will improve, grim as the present outlook might seem.

Looking at the Survey Today

The supporter of male-female marriage should draw three important lessons from these four decades of GSS survey data. First—and unsurprisingly—people often change their opinions over the course of their lifetimes; people become more “pro-choice” during their 30s and more “pro-life” during their 50s. This point coheres with the truism, supported by other significant research, that people often become more conservative with age.

Second, national opinion trends can change as well. For instance, one can see from the GSS that, in the 1990s, the debate over partial-birth abortion increased pro-life sentiment among nearly all demographic groups. Other surveys show that during that time period, a higher percentage of Americans came to consider abortion morally wrong, and believed that abortion should be banned in all circumstances. A September 1995 Gallup poll showed that only 33 percent of Americans identified as “pro-life.” That figure reached 51 percent in a Gallup poll taken in May 2009.

Third—and this is the most important—there can be surprising shifts in opinion even within demographic groups. Throughout the 1970s, 1980s, and 1990s, the GSS survey results consistently revealed that eighteen- to twenty-nine-year-olds were more supportive of legal abortion than was any other age cohort. But starting around the year 2000, this group became the most pro-life age cohort—more pro-life, even, than senior citizens.

What caused these unexpected shifts in public opinion on the abortion issue? The political pundits of the seventies foresaw neither the reality of legal abortion in the United States nor the effectiveness of incremental pro-life legislation.

Abortion Promises and Abortion Reality: The US Experience

Early supporters of legal abortion honestly thought that if abortion were to be legalized, it would be rare. They thought abortion would be a last resort for women facing truly extraordinary circumstances. But the abortion reality has turned out to be quite different and, indeed, more gruesome.

Abortion numbers surged after the Roe v. Wade decision. According to data from the Centers for Disease Control and Prevention, there were over 750,000 abortions in 1974, the first full year of legalized abortion. That number shot up to over 1,000,000 by 1977. Abortions often were not performed in hospitals or by family physicians, but in clinics that performed anywhere from hundreds to thousands of abortions per month.

These clinics often failed to adhere to appropriate sanitary and medical standards. Though misconduct in the abortion industry has never gotten the attention pro-lifers think it deserves, the media coverage it has received paints a very grim picture. In 1978 the Chicago Sun Times ran a series of articles documenting negligence and gross misconduct among abortion practitioners in Chicago. More recently, the grisly conditions in Kermit Gosnell’s Philadelphia abortion mill have disgusted and outraged many Americans.

The regime of legal abortion has only delivered broken promises. In the 1960s and 1970s, proponents spoke of abortion as a sort of social panacea. The rates of child abuse and out-of-wedlock births were predicted to decrease. But today, as I’ve shown previously, the data show otherwise.

Furthermore, a growing number of women have come forward publicly to speak of their regret over getting an abortion. The Silent No More Awareness Campaign has done important work encouraging post-abortive women to offer testimonies, documenting experiences even in the face of pressure to keep silent. Some of these women have become unexpected but eloquent and persuasive spokespersons for the pro-life cause.

Politics and Culture

During the past twenty years, the pro-life movement has emphasized enacting incremental legislation. Not only has this strategy saved lives, but public debate over abortion policy also forces people to confront the permissive nature of abortion in the United States. Specifically, the 1990s debate over banning partial-birth abortion clearly moved public opinion in a more pro-life direction. Current debates might have similar impacts; for instance, we are currently wrestling with various restrictions on abortion, such as waiting periods and requirements of parental notification or ultrasounds. Observers of these debates are apt to realize that, somewhere in the United States, minors obtain abortions with little knowledge of what they are doing or guidance from parents.

Furthermore, culture has quietly moved in a pro-life direction. Very few television shows and movies show characters resorting to abortion when faced with an unintended pregnancy. Additionally, popular culture’s depiction of single motherhood as non-disruptive in television shows such as Friends and Murphy Brown and movies such as Juno may be having an impact as well.

Many experts are genuinely puzzled as to what is driving the recent—dramatic—decline in the teen pregnancy rate, for it doesn’t correlate with increased use of contraceptives. Interestingly, there is some research that has even shown that teen pregnancy declines are the greatest in areas where the viewership for 16 and Pregnant and Teen Mom is the highest, so one wonders whether such shows are shaping the attitudes and the behavior of young people. Overall, the abortion rate has been falling for all demographic groups, but the declines have been the greatest among teenagers and minors. This bodes well for the future of the pro-life movement.

Now I certainly cannot promise that attitudes toward same-sex marriage will change in the same way that attitudes toward abortion have changed. Obviously, the parallel between abortion and same-sex marriage is not a perfect one. Unlike same-sex marriage, there is a clear victim in an abortion. The US Supreme Court intervened much earlier during the abortion debate than it did during the same-sex marriage debate. Still future developments might shape and influence opinions toward traditional marriage in some unexpected ways. Here are a couple examples.

Religious Liberty

The media has already reported on numerous stories of bakers, florists, and caterers who have faced harassment, fines, and even the loss of their businesses for their refusal to participate in same-sex marriage ceremonies.

These sorts of stories will become more common now that same-sex marriage has become the law of the land. Licensing boards for various public health and counseling professions may withhold accreditation or licensing for individuals and companies that refuse to publicly support same-sex marriage. Religious universities that do not offer spousal benefits to same-sex couples may lose accreditation or eligibility for government grants, and students attending these schools may be unable to receive federal financial aid. Many Christian schools may have to make painful choices between upholding their religious beliefs and staying afloat financially.

Many American supporters of same-sex marriage either are members of organized religions or respect organized religion. Some of them want to see religious institutions treated fairly and, during the fight for same-sex marriage, perhaps were accustomed to insisting that religious institutions would be treated fairly. The tension between same-sex marriage and religious liberty will only become more evident over time. The reality of institutionalized same-sex marriage, it seems, will turn out to have consequences that some of its proponents insisted it would not. This may well give some supporters of same-sex marriage pause.

Same-Sex Parenting

The problem with studies about same-sex parenting is that there currently are not a lot of good data. But if same-sex marriage becomes the law of the land, then there will be more same-sex parents. Researchers will be better able to assess the question of how well children fare when they are raised in same-sex households.

Although it will take some time for good datasets to emerge, one should not underestimate the possibility of scholarly consensus in the long run. Social science tends to police itself fairly well; data, for instance, have to be made public whenever a paper is accepted at a peer-reviewed journal. On some controversial issues, there is more scholarly consensus than most realize. For instance, good social scientists from a range of ideological perspectives largely agree that children fare better in two-parent households than in single-parent households. All in all, the side that is backed up by the best data may win—even if winning may take a very long time

While academic studies may shape opinions, personal anecdotes can be even more compelling. Public Discourse has published poignant essays by Robert Oscar Lopez and Katy Faust, who discuss their experience being raised by same-sex parents. Both authors love and respect those who raised them. Faust even supported same-sex marriage at one point. However, both authors came to oppose same-sex marriage publicly, arguing that they would have fared better if they had been raised by a father and a mother—that they have missed out on something essential. Stories like this will probably become more common if same-sex marriage in enshrined in law; recall that, forty years ago, no one thought that post-abortive women would become some of the most effective spokespeople for the pro-life movement.

When Roe v. Wade was decided in 1973, no one could have predicted the developments that shifted public opinion in a more pro-life direction. Abortion opinion trends during the past forty years should offer some reassurance to supporters of traditional marriage. It’s hard to anticipate how reality will turn around and confront public opinion, but the truth often has a way of revealing itself. Demography today is not necessarily destiny tomorrow.

Michael New is a Visiting Associate Professor at Ave Maria University and an Associate Scholar at the Charlotte Lozier Institute. Follow him on Twitter: @Michael_J_New

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The Unsoundness of Judicial Supremacy http://www.thepublicdiscourse.com/2015/07/15266/ http://www.thepublicdiscourse.com/2015/07/15266/#comments Wed, 08 Jul 2015 11:00:33 +0000 http://www.thepublicdiscourse.com/?p=15266

The Supreme Court looms large in American politics. In fact, many accept the claim—made by the Court and others—that the Supreme Court gets the final say as to what counts as law under our system of government. Judicial review is now bound together with the doctrine of judicial supremacy, crafted by Chief Justice Roger Taney in Ableman v. Booth—the case that infamously upheld the Fugitive Slave Act.

Together with Thomas Jefferson, Abraham Lincoln, Carson Holloway, and Robert George, I dissent from this view. Judicial supremacy is contrary to republicanism (that is, to popular sovereignty) and to constitutionalism (that is, to the rule of law rather than men). Indeed, the doctrine of judicial supremacy unravels the entire fabric of our constitutional order.

Several weeks ago, I entered this debate publicly by critiquing an argument proffered by Gabriel Malor. In a column at The Federalist, Malor criticized Governor Mike Huckabee’s claim that states have the right to resist or refuse to comply with decisions of the Court that extend beyond their jurisdiction under the Constitution. According to Malor, such a view is pure “gobbledygook.”

On the contrary, I argued, our founders and framers held that no act of the federal government—the Supreme Court included—that goes beyond power granted in the Constitution or that is contrary to its express prohibitions possesses the power to bind. Other actors—the legislative or executive branches, the state government, and even individuals—therefore have the right to ignore decisions of the Court that exceed its jurisdiction. I demonstrated that this was the position of the framers of the Constitution, including not only James Madison but also Alexander Hamilton, the principal architect of judicial review. And I maintained that constitutionalism and republican form depend upon affirming that decisions of the Court that go beyond power delegated by, or contrary to, the Constitution are null and void.

In reply, Malor made two points that will serve as my point of departure here. First, he maintained that Huckabee “is off in fringe territory” when he claims that “the Supreme Court . . . cannot overrule the other branches of government.” Second, he maintained that my rejection of judicial supremacy turned on a normative rather than a notional account of law. While I describe the way things should be, Malor describes the way things are. In our current climate, he thinks, it’s just not possible to resist the decrees of the Supreme Court, and to suggest that things could or should be different is simply nonsensical.

Could vs. Should

This argument obviously turns on the conflation of cannot with may not. Any intelligible claim that resistance to decrees of the Supreme Court is sheer nonsense logically must rely upon a normative or de jure claim. By installing a de facto proposition as the major premise of their argument, the proponents of judicial supremacy are able to claim no more than this: resistance to the Court cannot be made because it will not succeed. Resistance to the Court is wrong or nonsensensical just because such resistance is futile.

This claim sounds very much like the arguments of the Greek Sophist Thrasymachus or of the Athenians in Thucydides’ “Melian Dialogue.” As the Athenian representatives said to the Melian delegation, “Nature always compels gods (we believe) and men (we are certain) to rule over anyone they can control.” In short, might makes right. The Supreme Court cannot be resisted because it has power; justice is of no consequence here.

Making the major premise of the argument for judicial supremacy a de facto rather de jure claim renders the argument invalid. Even if it’s true that resistance to the Supreme Court will not succeed, it does not follow that such resistance cannot or ought not be undertaken. But even if the argument were not invalid, the major premise—that the Supreme Court cannot be successfully resisted—is demonstrably false.

The Weakest Branch

The proponents of judicial supremacy ignore the numerous instances in which Congress, the president, and the states have all very successfully resisted Supreme Court decisions—sometimes tragically, sometimes quite legitimately. According to Alexander Hamilton, in Federalist no. 78, the Supreme Court is the least dangerous branch of the federal government because it is far and away the weakest branch. It cannot even enforce its own decisions.

Advocates of judicial supremacy often make John Marshall’s opinion in Marbury v. Madison the cornerstone of their case. But everyone knows that one reason for the decision in Marbury—that section 13 of the Judiciary Act of 1789, which expanded the Supreme Court’s original jurisdiction to cases like Marbury’s, was unconstitutional—was precisely because Marshall knew Jefferson and Madison would (very successfully) defy any order from the Court to deliver Mr. Marbury’s commission to him. Marshall did not want the institutional weakness of the Court on full display, and so he rendered a decision that did not require Madison or Jefferson to do anything.

But let’s set the politics of Marbury to the side and consider a few instances in which the decisions of the Court were ignored by the coordinate branches of the federal government, by state governments, or by local governments and individuals.

In the case of Worcester v. Georgia, the Supreme Court held that Georgia law was not binding within the Cherokee Nation. Consequently, missionaries working with the Cherokee and not from Georgia could not be required by the state to take an oath of allegiance to Georgia. Thus the Court ordered Georgia to release two missionaries who had been arrested, tried, convicted, and imprisoned for refusing to swear allegiance to the state of Georgia.

The State of Georgia refused. In his annual message, Governor Wilson Lumpkin railed against the “fallibility, infirmities, and errors of this Supreme tribunal.” Shortly thereafter, the missionaries stopped pursuing legal proceedings in federal courts to compel Georgia’s compliance to the order of the Supreme Court that they be released. They did so precisely because of the Supreme Court’s failure to compel Georgia’s obedience to its decision, which President Jackson had no inclination to enforce. Instead, they appealed to Governor Lumpkin for a pardon, and Lumpkin granted their request.

This story clearly illustrates the inability of the Court to enforce its decisions—especially when the national executive sided with Georgia against the Court. In the Worcester case, the Court certainly lost.

Northern Resistance to the Fugitive Slave Act

In 1859, the Court tendered a decision in Ableman v. Booth that, if we simply read the holding and opinion of the Court, would seem to support the argument for judicial supremacy.

In 1854, northern abolitionist Sherman Booth was arrested by US Marshal Stephen V. Ableman for violating the Fugitive Slave Law of 1850. Booth had led a mob to rescue Joshua Glover, an escaped slave living in Wisconsin whom Ableman had taken into custody. A reluctant jury convicted Booth of violating the federal law and sent him to jail. The Wisconsin Supreme Court, however, issued a writ of habeas corpus compelling Booth’s release. Ableman, in turn, sought a writ of error from the Supreme Court to get the action of the Wisconsin high court reviewed. The Supreme Court obliged and found against the Wisconsin Supreme Court. Ableman ultimately rearrested Booth and sent him back to jail (only to have President Buchanan pardon Booth six months later).

Chief Justice Roger Taney composed the Court’s opinion. Taney declared the Fugitive Slave Act constitutional, asserted that the states must “support this Constitution,” and claimed that “no power is more clearly conferred than the power of this court to decide ultimately and finally, all cases arising under such Constitution and laws.” In short, Chief Justice Taney created the doctrine of judicial supremacy—including a rejection of the right of states to resist decisions of the Supreme Court—in the context of upholding the Fugitive Slave Law.

In spite of the Supreme Court’s ruling, active resistance of Northern states to the Fugitive Slave Act did not slacken. In fact, Northern resistance effectively nullified the Fugitive Slave Act even though the act was federal law upheld by the Supreme Court and even though the Supreme Court had declared such resistance illegal.

Similarly, President Lincoln defied Chief Justice Taney’s holding in Dred Scott that former slaves who had attained freedom could never be citizens of the United States. Over and against the Dred Scott decision, the Lincoln administration issued passports of citizenship to freed slaves—and the Court couldn’t successfully tell Lincoln to stop. It might have issued a decision, but the Court cannot impose its own judgments. It relies on the executive for that.

Modern Resistance to the Court

Lest I be accused of harkening back to a bygone era, we should consider some examples of successful resistance to the Court in more recent times. In INS v. Chadha (1983), the Supreme Court declared the unconstitutionality of legislative vetoes.

Congress paid no attention. According to leading congressional scholar Louis Fisher, thirteen years later, Congress had enacted more legislative vetoes (over 400!) than before the Court told them they could not. In short, the Supreme Court reached a decision with which Congress disagreed, and the Supreme Court lost.

The paradigm case for proponents of judicial supremacy is Brown v. Board of Education. In 1957, Governor Faubus ordered the Arkansas National Guard to prevent black students (the Little Rock Nine) from entering a previously whites-only school. President Eisenhower, however, nationalized the Arkansas National Guard to enforce desegregation. Ultimately, says Malor, “The Supreme Court’s determination trumped a state official’s personal beliefs, as contemplated by the Supremacy Clause.”

For the proponents of judicial supremacy, the story ends here, with the Court triumphing over local resistance to its decrees. But the story does not really end here. In the decade after Brown, before the passage of the Civil Rights Act, there was virtually no desegregation. The Little Rock Nine were—tragically—an exception to the rule. As Gerald Rosenberg notes,

despite Cooper v. Aaron and the sending of troops to Little Rock in 1957, as of June 1963, only 69 of 7,700 students [less than 1 percent] at the supposedly desegregated, ‘formerly’ white, junior and senior high schools of Little Rock were black. Public resistance, supported by local political action, can almost always effectively defeat court-ordered civil rights.

Indeed,

a decade after Brown virtually nothing had changed for African-American students living in the 11 states of the former Confederacy that required race-based school segregation by law. For example, in the 1963-1964 school year, barely one in 100 (1.2%) of these African-American children was in a non-segregated school. That means that for 99 of every 100 African-American children in the South a decade after Brown, the finding of a constitutional right changed nothing.

Partisans of judicial supremacy would have us believe that the Brown decision was effective. But, standing alone (i.e., prior to the adoption of the Civil Rights Act a decade later), this decision too was a dead letter for the overwhelming majority of states and, tragically, the overwhelming majority of African-American students.

Constitutional Republic or Non-Constitutional Oligarchy?

My point is not that individuals or states or the coordinate branches of the federal government never comply with the Supreme Court. Sometimes they do, but often they do not. Nor is my point that resistance is always acceptable. Sometimes resistance to decisions of the Court is unconstitutional, illegal, or unjust. Resistance to desegregation was both unconstitutional and unjust. It was also overwhelmingly successful.

My point is only this: If the proponents of judicial supremacy are right, then we have neither a republic nor a constitutional regime. In their understanding of the power of the Court, we have rule by an elite few—an aristocracy or an oligarchy. Moreover, if the Supreme Court has the ultimate say as to what counts as law—just because it has the final say as to what the Constitution means or requires—then these aristocrats or oligarchs are not constrained by the Constitution. Rather, the Constitution is constrained by them. And in that case we have the rule of men (and women) rather than the rule of law. Such a regime is, as a matter of definition, non-constitutional.

In a constitutional order, judges sometimes get the Constitution wrong. According to Marshall’s doctrine of judicial review, when Congress gets the Constitution wrong, its laws are null and void. In a truly constitutional order, the same goes for unconstitutional decisions of the Supreme Court. And that means the rightness of resistance, whether at the founding or now, doesn’t depend on the ability of the Court to enforce a ruling but, rather, on the answer to this de jure question: Did the Court get the Constitution right?

Paul R. DeHart is an associate professor of political science at Texas State University. He is author of Uncovering the Constitution’s Moral Design (University of Missouri Press) and editor (with Carson Holloway) of Reason, Revelation, and the Civic Order: Political Philosophy and the Claims of Faith (Northern Illinois University Press).

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Religion and the Republic http://www.thepublicdiscourse.com/2015/07/14671/ http://www.thepublicdiscourse.com/2015/07/14671/#comments Mon, 06 Jul 2015 11:00:48 +0000 http://www.thepublicdiscourse.com/?p=14671

Last year, in Town of Greece v. Galloway, the Supreme Court considered whether it was constitutional for a town to open its board meetings with a prayer offered by clergy members. During oral arguments, Justice Elena Kagan, who enjoys spinning hypotheticals as only a law professor can, asked the town’s advocate:

Mr. Hungar, I’m wondering what you would think of the following: Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side. The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case.

Realizing that the example was not germane to the proceedings of a legislative session, the town’s advocate competently dodged the bullet. But in retrospect, there was a much more direct answer available.

“But, your honor,” Hungar could have replied, “we have already begun with a prayer.”

At 10:00 am on every day when the Supreme Court is in session, the justices proceed to their chairs while the Court’s marshal proclaims:

The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!

It is a real prayer, asking for God’s protection. The source of the prayer is the first book of Samuel: “Samuel said to all the people, See ye him whom the Lord hath chosen, that there is none like him among all the people? And all the people shouted, and said, God Save the King.” In English history, that prayer was first intoned in the coronation of King Edgar in 973, predating the Magna Carta by 242 years.

In spite of its royal roots, such a prayer is also a necessary element in a republic dedicated to preserving the liberties of the people. And, in a larger sense, respect for religion is necessary for a republic to exist at all.

Religion: The First of America’s Institutions

The words “God save the United States and this Honorable Court!” are not mere “ceremonial deism.” This phrase was made up by Eugene Rostow in 1962 when he was dean of Yale Law School, and used calculatingly and wrongly by Justice Brennan in Lynch v. Donnelly (1984) to claim that these references to God “have lost through rote repetition any significant religious content.”

As Professor Martha Nussbaum at the University of Chicago Law School noted, “‘Ceremonial Deism’ is an odd name for a ritual affirmation that a Deist would be very reluctant to endorse, since Deists think of God as a rational causal principle but not as a personal judge and father.” The phrase arose in the 1960s when the paradigm of strict separation of church and state was in its legal ascendancy, and there had to be an excuse for all these references in our political literature to a personal and immanent God. But in fact, these many references to God are not mere rhetorical flourishes, but point to a necessary mythos for a republic.

A republic, that is, a true republic, respects religious speech because such speech represents a different authority from governing power and hence affirms the limited nature of the governing power. It avows, by explicit reference, that the government is not the only game in town. The religious speech that a republic respects can be evidenced in the very source of the right to govern, in the deliberative process, or spoken by the public authority itself.

These references to God as judge, or as helper, or as protector, are the chorus in our republican Greek play. They are the slave holding the garland of laurel over the head of the triumphant returning Roman general while intoning, “Remember that thou art only mortal.”

That is why Tocqueville noted that religion was the “first of [America’s] political institutions.” He explained, “I do not know whether all Americans have a sincere faith in their religion—for who can search the human heart?—but I am certain that they hold it to be indispensable to the maintenance of republican institutions.”

Religion Combats Political Hubris

The iconic phrases that swirl about us in motto, oath, and presidential statement have the salutary lesson of warning the state of the danger of political hubris—that is, the conceit that it is only through government and the political process that social and moral problems can be addressed. They signal that, for the sake of liberty, there are limits to what government can do.

We are all familiar with the mechanical checks that the framers erected in the Constitution to restrain government and limit what the people’s democratic will might do to undermine liberty. But they, and their successors, went further. Guarding against sectarian use of government to suppress others, the framers confined the enterprise of government normatively by affirming the existence of God, by acknowledging him as judge, and by admitting their own human limits by relying on him for beneficent aid.

Recall Jefferson’s plaint about slavery in his Notes on Virginia. “Can the liberties of a Nation be secure,” he asked, “when we have removed a conviction that these liberties are the gift of God? Indeed I tremble for my country when I reflect that God is just and that his justice cannot sleep forever.” Or think of the Declaration’s famous justification for the existence of government itself: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” And recall Madison’s conclusion: “Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe.”

The very nature of a republican limited government, therefore, is grounded in the acknowledgment of the presence of another, higher sovereign, to whom individuals owe their loyalty—and into that loyalty the government has no right to intrude.

But the framers of our republic went further. They placed the actual governmental institutions in the presence of this immanent divine power. The week after the passage of the Bill of Rights, Congress hired a chaplain to begin each day’s deliberation with a prayer to this very same God. Congress provided for chaplains for the armed forces. And they soon would begin the tradition, continued for a century or more, of hiring missionaries to convert the Indians so that they would adopt, in their view, more civilized and republican ways. When Lincoln rededicated the torn republic back to the work of the founders, he too did so with the prayer, “that this nation, under God, shall have a new birth of freedom.”

The Framers turned to the God of our liberties when it came to the deliberative process as well. Washington, to whom all looked for example, and whose practice shaped our mode of constitutional governance, declared as part of his “first official act,” his “fervent supplications to the . . . Almighty Being who rules over the Universe . . . that his benediction may consecrate to the liberties and happiness of the People of the United States, a Government instituted by themselves.” And in his Thanksgiving Proclamation, he offered a prayer to God “to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed.”  In his farewell address he charged, “Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

Lincoln too called upon God to provide the wisdom by which the nation could possess good laws: “With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right.” And when national morality breaks down, then the judgment of that beneficent Governor of the Universe can be terrible indeed. Lincoln:

Fondly do we hope—fervently do we pray—that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn by the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, "The judgments of the Lord are true and righteous altogether."

Today, when government officials take an oath, they call upon God to help them fulfill it. In Ohio, the standard “So help me God” is replaced by the more formidable “And so shall I answer unto God.” We have added to the Pledge of Allegiance the declaration that we are “one nation, under God.” We have adopted as the national motto, “In God we trust.” None of these is an instance of empty “ceremonial deism.” On the contrary, all are explicit affirmations of the necessity of a divine authority that is the ultimate source of rights, of guidance for public policy, and of judgment.

Eradicating the Social Good of Religion

Virtually every major political or social reform in our nation’s history has been motivated by religious belief: common education, abolition, workers' rights, protection of women, temperance, desegregation. Religion has transformed and refined our society as no other source has. Think of the hundreds of hospitals, the thousands of institutions of education, the social services of feeding the hungry, ministering to prisoners, caring for the millions subject to addiction and alcoholism, protecting immigrants, the unborn, the marginalized, the widow, and the orphan.

In recent years, the good that religion has accomplished in society has come under attack. Catholic Charities of Massachusetts cannot offer its renowned adoption services any longer because it cannot in good conscience offer children to same-sex couples. The recent dust-up about forcing closely held companies to pay for abortifacients is only a small part of a much larger trend. Increasingly, the state is seeking to supplant the role of religious social action, making it subject to whatever rules the government thinks appropriate. Instead of acknowledging God as a limiting principle on the role of government, the state seeks to replace Him with its own sovereignty and to turn all public references to God into so much verbal decoration.

Earlier this year, San Francisco’s archbishop was threatened with legal action by city and state legislators for daring to require that the teachers in the diocesan Catholic schools proclaim the moral teachings of the Catholic Church. It used to be—in the days of Father Richard John Neuhaus—that religion was kept from the public square. Then, the authorities, as in Massachusetts, began forcing it out of the social space. Now, political powers threaten the right of religious believers even to hold certain beliefs.

Without an affirmation of God, without religious speech being welcomed in public discourse, and without a space for religion to be itself, the very notion of a republic is disintegrating before our eyes.

David F. Forte is professor of law at Cleveland State University.

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Marriage and the Constitution: What the Court Said and Why It Got It Wrong http://www.thepublicdiscourse.com/2015/07/15247/ http://www.thepublicdiscourse.com/2015/07/15247/#comments Wed, 01 Jul 2015 10:00:35 +0000 http://www.thepublicdiscourse.com/?p=15247

The Supreme Court’s ruling in Obergefell v. Hodges is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of a man and a woman. The ruling is as clear an example of judicial activism as we’ve had in a generation. Nothing in the Constitution justified the redefinition of marriage by judges. The Court simply imposed its judgment about a policy matter that the Constitution left to the American people and their elected representatives. In doing so, it got marriage and the Constitution wrong, just as it had gotten abortion and the Constitution wrong in Roe v. Wade.

The question before the Supreme Court in Obergefell was not whether a male-female marriage policy is the best or whether government-recognized same-sex marriage is better, but only whether anything in the Constitution specifically took away the power of the people to choose their marriage policy. Yet the Court spoke almost exclusively about its “new insights” into marriage, and was virtually silent on the Constitution. That’s because it had no choice. Our Constitution is itself silent on what marriage is; We the People retain the authority to make marriage policy.

The Court claimed to show that the marriage policy that has existed in the United States for all its history is now prohibited by the Constitution. It failed to do that. As I explain in my forthcoming book, Truth Overruled: The Future of Marriage and Religious Freedom, what the Court actually did was to assume that marriage is an essentially genderless institution and then announce that the Constitution requires states to adopt that same vision of marriage in their laws.

This is all the more remarkable, given that during oral arguments on Obergefell Justice Kennedy pointed out that marriage as the union of man and woman “has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.” Kennedy at least pretended to be reluctant to redefine marriage judicially. Redefining marriage to include same-sex relationships has, Kennedy pointed out, only been around for ten years. And, he added, “10 years is—I don’t even know how to count the decimals when we talk about millennia.”

Even Justice Stephen Breyer noted that marriage understood as the union of man and woman “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change . . . what marriage is.” He asked: “Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?” And yet, he joined Kennedy’s majority opinion overruling the people—overruling the truth—and redefining marriage everywhere.

The first paragraph of the majority opinion highlights the incoherence of the ruling’s logic:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.

But as Justice Clarence Thomas pointed out in his dissenting opinion, constitutional protections of liberty can hardly require governmental recognition. The liberty that the Constitution protects is a freedom from government interference. And gays and lesbians already enjoyed full liberty “to define and express their identity” and to exercise their “liberty by marrying someone of the same sex” in the house of worship of their choice. Yet Justice Kennedy writes the majority opinion as if governmental recognition of a relationship is a liberty right.

How did Kennedy support such a conclusion?

Kennedy starts with a paean to “the transcendent importance of marriage.” He notes that the “lifelong union of a man and a woman always has promised nobility and dignity to all persons” and that the “centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations.” He cites a variety of theological, philosophical, literary, and artistic portrayals of marriage and even admits that it “is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.” Indeed, he points out that for the states defending their marriage laws, marriage “is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”

So why, exactly, does the US Constitution require a redefinition of marriage? Kennedy starts by claiming that the due process clause of the Fourteenth Amendment—which says that no state shall “deprive any person of life, liberty, or property, without due process of law”—requires states to recognize same-sex relationships as marriages. How? Because the fundamental liberties that the due process clause protects extend to “certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” And these choices, Kennedy argues, now require not merely freedom from government coercion, but proactive government recognition. And the Court, apparently, is the one to decide which intimate choices require recognition, and when, and how much recognition each choice is due.

Kennedy is candid about how radical a departure from previous Court cases his ruling is: “It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners.” But that presumption was wrong, according to Kennedy, and he identifies four principles to “demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.”

Kennedy’s Four Marriage Principles

First, “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” This entails that “two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.” We might pause here to inquire whether it is also true for all persons, whatever their number. Why Kennedy writes that “two” but not three or four “persons together can find other freedoms” is anyone’s guess. He never says. We might also wonder how “autonomy” gives rise to a right to government recognition.

Second, “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” (Note again the arbitrary addition of “two-person.”) There it is: “unlike any other” relationship. Your number-one person. Yes, Kennedy follows nearly verbatim the intense-emotional-union view of marriage that Sherif Girgis, Robert P. George, and I criticize in our book What Is Marriage? Man and Woman: A Defense. Nevertheless, Kennedy writes: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” Consenting adult romance and care. Kennedy repeats this claim in the closing paragraph of his decision: “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.”

This is among the most harmful assumptions of Kennedy’s opinion—that marriage is the only relationship that ultimately matters, that others are somehow lesser, and that the unmarried are therefore “condemned to live in loneliness.”

Third, marriage “safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” So in Kennedy’s view, same-sex couples have “rights of childrearing, procreation, and education,” and these bring a right to marriage in their wake since, as a prior decision held, “the right to ‘marry, establish a home and bring up children’ is a central part of the liberty protected by the Due Process Clause.”

Here Kennedy discusses children reared by same-sex couples without once acknowledging that they might want a mom and a dad. And there is no mention—at all—of children’s right to a mom and a dad, and preferably their biological mom and dad. There’s only discussion of adults’ rights to children. This section of the opinion raises troubling questions about how two people of the same sex have a right to children.

Fourth “and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.” Well, yes, marriage—a union of man and woman, husband and wife, father and mother—is a keystone of our social order, precisely because of its procreative character, which same-sex couples lack. So this is actually a point against Kennedy’s view. In response, he just asserts—without argument—that “there is no difference between same- and opposite-sex couples with respect to this principle.” As he writes, “same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.” Unless, of course, those purposes and that meaning have something to do with uniting comprehensively, creating new life, and uniting new human beings with their mother and father. Remarkably, Kennedy never once seriously engages with that argument.

Equal Protection and History

Kennedy concludes his opinion for the Court by adding, almost as an afterthought, that the equal protection clause of the Fourteenth Amendment—not just its due process clause—also gives same-sex couples a right to have the government recognize their relationships as marriages. The reasoning here is even cloudier. Kennedy writes that “The Due Process Clause and the Equal Protection Clause are connected in a profound way” and that in “any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” The conclusion? “This interrelation of the two principles furthers our understanding of what freedom is and must become. The Court’s cases touching upon the right to marry reflect this dynamic.” That’s right, this “dynamic” tells us what freedom “must become.” If ever there was a clearer indication that the Court was legislating from the bench, I haven’t seen it. And if this passage contained an actual legal argument, I haven’t found it.

Along the way, to buttress his opinion, Kennedy cites various ways in which the social practice and legal regulation of marriage historically has changed. He mentions coverture, where “a married man and woman were treated by the State as a single, male-dominated legal entity.” He mentions bans on interracial marriage. He mentions legal regulations that placed hurdles on marriage for potential spouses if they owed child support or were in prison. Never, however, does he acknowledge that none of these practices or regulations redefined what marriage is—a comprehensive union of sexually complementary spouses.

Roberts faults Kennedy precisely for his sloppy use of this history:

In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.

None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison.” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race.” . . . Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.”

The problem with the analogy to interracial marriage is that it assumes exactly what is in dispute: that sex is as irrelevant to marriage as race is. It’s clear that race has nothing to do with marriage. Racist laws kept the races apart and were designed to keep whites at the top. Marriage has everything to do with men and women, husbands and wives, mothers and fathers and their children, and that is why principle-based policy has defined marriage as the union of one man and one woman.

In sum, Chief Justice John Roberts simply observes that “the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position.” Think of a student who can’t find good support for a claim in a term paper and so adds dozens of tangential references—as if many weak arguments somehow combine to yield one strong one. “In any event,” Roberts writes, “the marriage laws at issue here do not violate the Equal Protection Clause, because”—and here he quotes Justice Sandra Day O’Connor—“distinguishing between opposite-sex and same-sex couples is rationally related to the States’ ‘legitimate state interest’ in ‘preserving the traditional institution of marriage.’”

The Role of the Court and Protecting Freedom Now

Justice Kennedy’s most basic error was a complete failure to interpret and apply the Constitution to the case at hand. He simply philosophized about what marriage should be and what freedom “must become.” Chief Justice Roberts opened his dissenting opinion by noting that the Supreme Court “is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” As Roberts notes later in his opinion, “There is, after all, no ‘Companionship and Understanding’ or ‘Nobility and Dignity’ Clause in the Constitution.”

America is in a time of transition. The Court has redefined marriage, and beliefs about human sexuality are changing. Will the right to dissent be protected? Will the rights of Americans to speak and act in accord with what the United States had always believed about marriage—that it’s a union of husband and a wife—be tolerated?

Most Americans say yes, they want to be a tolerant, pluralistic nation. They want peaceful coexistence. I agree with them. It’s only ideologues and activists who want to sow the seeds of disharmony by threatening those with whom they disagree with revoking their tax-exempt status, taking away their government licenses, suing them out of business, or stripping them of their legal protections.

This is why the First Amendment Defense Act is so vitally important. If passed and signed into law, this act would prohibit the federal government from ever discriminating against any citizen, charity, school, or business because they believe and act on the belief that marriage is the union of a man and a woman. Just as the pro-life movement ensured that no pro-life citizen would ever have to pay for an abortion or perform an abortion, so too must we work to ensure no one is coerced on marriage. Rather than forcing people and institutions of faith to go to court for their religious liberty, this bill would prevent the government from ever acting unjustly in the first place.

We need good policy at all levels of government. Governors have an opportunity right now to issue executive orders preventing state agencies from discriminating against or otherwise penalizing citizens and organizations that continue to believe marriage is the union of a man and a woman. State legislatures can pass laws doing the same.

The First Amendment Defense Act and its state analogues would achieve civil peace even amid disagreement by protecting pluralism and the rights of all Americans, whatever faith they may practice. Protecting conscience is good policy, and liberals committed to tolerance should embrace it.

Ryan T. Anderson is the William E. Simon Senior Research Fellow in American Principles and Public Policy at The Heritage Foundation and editor of Public Discourse. He is the author of the forthcoming book, Truth Overruled: The Future of Marriage and Religious Freedom.

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Thanks for Everything, Justice Kennedy http://www.thepublicdiscourse.com/2015/06/15235/ http://www.thepublicdiscourse.com/2015/06/15235/#comments Mon, 29 Jun 2015 11:00:24 +0000 http://www.thepublicdiscourse.com/?p=15235 Obergefell is an utter failure, relying as it does on a tenuous and historically ungrounded jurisprudence of “dignity.” The debate over same-sex marriage is not over. A constitutional ruling so shoddily reasoned, so completely and easily dismantled by the dissents, must paper over a cause that cannot ultimately win in an open debate.]]>

When the blow finally fell, the Supreme Court’s ruling in Obergefell v. Hodges—holding 5-4 that every state in the Union must license same-sex marriages—seemed somehow less crushing in its impact, less hurtful and wounding, than one might have expected from a decision that is so thoroughly a defeat for the truth about marriage and the truth about the Constitution.

Make no mistake, the harms from the Court’s appallingly illegitimate decision are many, and gravely serious. But the good news for a cockeyed optimist like me is that Justice Anthony Kennedy’s opinion is so incompetent, so gossamer-thin as an exercise in legal or constitutional reasoning, so unpersuasive even in political terms, that it renews my zest for carrying on the battle of persuading my fellow citizens and turning the country around on this issue.

I should have known he would do this for us, as well as to us. For Kennedy began to travel this road nearly twenty years ago in Romer v. Evans (1996), in which a 6-3 Court denied to the people of Colorado the authority to amend their state constitution to prevent their elected state and local legislators from adding “sexual orientation” to the list of “identities” on the grounds of which discrimination by public and private actors alike is forbidden.

Is Anyone "Demeaning" Others' "Dignity"?

Yet at least in Romer, the word “dignity” had not yet appeared in Kennedy’s reasoning. In Lawrence v. Texas (2003), which overturned state laws that criminalized homosexual sodomy, Kennedy turned away from the equal protection clause and to the textually and historically ungrounded jurisprudence of “substantive due process.” This meant, in Kennedy’s hands, the judicial protection of a free-ranging, judicially defined notion of “liberty” invoked to overturn any conduct-regulating statute that trenched on the “dignity” of persons whose wishes and desires tugged at the judges’ heartstrings.

In Romer, at least, Justice Kennedy had labored to produce something that resembled a competent account of the equal protection clause—though his attempt failed. But Lawrence was something else. Lawrence was a moment of real self-liberation for Kennedy. That can be seen in his quotation of what were probably his own words from the joint opinion he co-authored with Justices O’Connor and Souter in Planned Parenthood v. Casey: “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.” This “mystery passage” was already in 2003, and remains, the most widely lampooned bit of pseudo-reasoning of the last half century, but Kennedy sensed the cultural and political power that it represented, and in Lawrence he set it on course to colonize our constitutional law entirely. His opinion was also liberally salted with references to “dignity” (three times, including another line quoted from Casey), and to the idea that laws resting on negative judgments of homosexual conduct “demean” those who engage in it (four times).

United States v. Windsor, the Defense of Marriage Act case from two years ago, gave us more of Kennedy’s free-floating jurisprudence of “dignity” (ten mentions including “indignity”), condemning laws that “demean” (three mentions). Obergefell rests explicitly on this fragile, groundless rationale, with Kennedy mentioning the connection of marriage to “dignity” nine times, while three times saying that it “demeans” same-sex couples when a state limits marriage to one man and one woman, and twice invoking the matter of “identity.”

But there is something else quite new in Obergefell. Kennedy, somewhat defensively, mentions twice that defenders of conjugal marriage might believe redefining the institution to include same-sex couples “demeans” marriage itself. Since no one opposed to same-sex marriage actually speaks this way, this is a curious characterization, but perhaps an important one. In Kennedy’s mind, the Constitution has been converted into a great Dignity Document. The role of the Supreme Court is to adjudicate whose version of Dignity it embodies, which can be decided by pondering who is made to feel worse by having his strongest convictions “demeaned.” Victory will go to the one who can appeal successfully to strong feelings about his “identity.” As Chief Justice Roberts said in dissent, “The majority’s driving themes are that marriage is desirable and petitioners desire it.”

A Constitutional Crisis

Confronted by such a string of sentiments masquerading as constitutional principles, why then should I feel heartened by the new phase of the struggle into which the Obergefell ruling has just pitched us? The reason is that Kennedy is so terribly bad at his chosen profession of judge that he has now unmasked himself, and his four silent colleagues who joined his opinion for the Court, as imperial rulers with no regard for the Constitution, for the forms of reasoning that give the law its real vitality, or for the rightful authority of the people to govern themselves within the bounds of a Constitution they understand and respect.

Moreover, while noting all the manifold ways in which the marriage debate has been played out over the last two decades—just as he was attempting to shut that debate down—Kennedy evinced no understanding of what the arguments about marriage really are, not even grasping the arguments on the side he favored. In so doing, he showed himself to be, if not one of the least intellectually honest persons ever to come to that debate, then one of the least well-informed. His opinion is an act of the most breathtaking argumentative carelessness in the history of the Supreme Court. Roe v. Wade, Lochner v. New York, and Dred Scott v. Sandford—all rightly invoked by the dissenters in Obergefell as the true models for Kennedy’s reasoning—are closely reasoned works of lawyerly precision by comparison.

As a legal opinion, Obergefell is an utter failure. What the late John Hart Ely, who was politically in favor of abortion, said of Roe v. Wade, we can say of Obergefell: “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” But Obergefell is also embarrassingly bad as a contribution to the political and social debate on marriage. From this I take heart that the battle can be rejoined, with the making of better arguments—each side offering its best against the other’s best—in a struggle that will continue for years to come.

But wait. Isn’t the debate over? Isn’t that what a Supreme Court decision on the Constitution means? Well, frankly, no. The movement for rescuing and restoring marriage in our country will not be made to vanish by so transparently political a holding of five justices of the Supreme Court. The movement for defending the sanctity of life in our law, forty-two years after Roe v. Wade, waxes rather than wanes in strength. As the pro-life movement was joined, so the marriage movement will be joined, by defenders of the authentic Constitution so blithely traduced by the Court’s majority. The Roe decision has often made pro-life converts out of people who actually read it—I know, because I was one of them—and the Obergefell ruling, in time, will do similar work in adding strength to the ranks of marriage’s defenders.

A constitutional ruling so shoddily reasoned, so completely and, one may say, easily dismantled by the four justices who dissent from it, must paper over a cause that cannot ultimately win in an open democratic debate, and that therefore seeks the shelter of powerful friends in the judiciary. This is just what many young people will come to see for themselves simply by reading the decision, just as many have done by reading Roe. The twin discoveries, that a great constitutional wrong has been committed to give cover to a great moral wrong, will come together.

We may take heart, then, from Justice Alito’s observation that “even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.” Indeed they should, for the debate is not over; it has only entered a new phase. That phase will necessarily include some sober deliberations regarding what can be done about a Supreme Court with (at least) five members who believe that they can rewrite the Constitution at will in order to transform fundamental institutions of our society. For Alito’s very next sentence is, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of authority have failed.” Indeed, they have, and so it is back to the drawing board. When even the chief justice complains of “the majority’s extravagant conception of judicial supremacy,” it is time to do some hard thinking about meaningful institutional reform of the federal judiciary.

In the Meantime

While we prepare for hard work on many fronts in the battles for marriage and for the Constitution, we should recognize and immediately try to mitigate the great harm the Court has done. Despite Kennedy’s pat denials, marriage has been grievously wounded as an institution, and we must do what we can to bind up its wounds, in our own families, communities, and churches. After all, every future generation is at stake. We must never tire of saying: every child deserves a mother and a father—preferably his or her own biological parents. That, as the dissenting justices recognized, is what marriage has always been about, in every age and culture, and it is why marriage has always been understood as the union of a man and a woman.

And we must do all that we can to institute safeguards for religious freedom in our country, which will now come under attack as never before. It was strangely gratifying to see Chief Justice Roberts and Justice Thomas, in their dissents, give this matter their lengthy and considered attention. Thomas foresees “potentially ruinous consequences for religious liberty” in this invention of a new “right” of same-sex marriage, and Roberts noted how telling was the way in which Kennedy shrugged off such potentials:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. . . . The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

The protection of religious freedom may rapidly become our most urgent legislative business, both in Congress and in state legislatures. But win or lose in legislative assemblies, the faithful and their pastoral leaders in the many religious communities devoted to the truth about marriage must prayerfully muster the courage to act, and to live as their faith informs their consciences, as well as to “advocate” and “teach.” As Alito notes, “those who are determined to stamp out every vestige of dissent” on the marriage question will be ready to exploit the Court’s decision. Look at your social media feeds: That is already happening.

In our response to our counterparts in this great constitutional, political, and moral debate that now begins anew, we can start by preaching and practicing a truer, fuller understanding of dignity, in our families and churches, than the one about which Kennedy so vainly prattles. And we can fix our eyes on the prize of restoring, through real democratic debate and persuasion, the great goods of constitutional self-government and justice to individuals and families.

Thank you, Justice Kennedy, for giving us this opportunity. I know you didn’t mean it, but thank you nonetheless.

Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

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The Practical Wisdom of Chief Justice Ellsworth: Reconsidering the Separation of Church and State http://www.thepublicdiscourse.com/2015/06/14490/ http://www.thepublicdiscourse.com/2015/06/14490/#comments Fri, 26 Jun 2015 11:00:26 +0000 http://www.thepublicdiscourse.com/?p=14490

One day in 1802, an elderly gentleman took a copy of a petition to the Connecticut state assembly, threw it to the floor, planted his foot upon it and declared, “This is where it belongs!”

The petition was made by Baptists in the town of Danbury, Connecticut. Connecticut, along with several other states, had an established church, the Congregational. An established church enjoyed a clear and practical arrangement with the state, modeled after that of the Church of England. “Under state law,” writes Michael Toth, “Congregationalist churches received a sum for the salaries of their ministers, and other religious costs, paid for by the state’s residents.”

According to the First Amendment, Congress, meaning the federal entity, is forbidden to pass any laws “respecting an establishment of religion.” In the parlance of the time, this meant that the federal legislature should not have anything to do one way or another with establishments such as that of Connecticut. So the Danbury Baptists did not appeal to the Supreme Court of the United States, which would have pointed to the plain language of the Constitution and declared itself to have no standing in the case. Instead, they petitioned the Connecticut assembly.

They were not claiming persecution. “By the end of the eighteenth century,” writes Toth, “members of three specified religious denominations (Baptists, Quakers, and Anglicans) were permitted to direct their contributions to their own churches.” Assuming that the Danbury Baptists were no less generous to their church than were the Congregationalists to theirs, what they disputed was not the cost but the principle of the thing. For in order to claim the exemption you had to be a member attending the church in question, a stipulation which seems fair enough. But what if you were not a member of any church? Why should you pay to support Congregationalist ministers? Why should you contribute to the quarrying of the limestone and the hewing of the timber to build their houses of prayer?

The Danbury Baptists thus wrote to President Jefferson, to enlist his support. That elicited Jefferson’s famous letter, in which he opined that Americans in their Bill of Rights had erected a “wall of separation between Church and State.” If they had, it must have been a gaseous sort of wall, because the people of Connecticut had been passing through it for fifteen years without noticing. What Jefferson meant by that phrase, too, is disputable. Given the folkways of his fellow citizens, which he took as a matter of course, he could not possibly have meant that the state could drive from its precincts the Christian culture upon which it was based. The sticking point was the financing and the explicit legal relationship between a specific body of government, and a specific religious organization requiring a specific set of duties of its members. Those duties (not books, essays, feelings, opinions, words, allusions, or folk art) went generally by the name “religion.”

Jefferson’s letter, we know, has assumed the status of a supra-constitutional dictum from on high, even though he was not a member of the Constitutional Convention, he did not sign the Constitution, and he never served as a judge. That is one of the ironies of history.

But the irony is richer than most Americans know. Jefferson looms large in our American mythology because he drafted the Declaration of Independence, and he became president. The founder of the University of Virginia would have faded into the crowd of other founders were it not for the election of 1800. His personal opinions on matters of church and state, however we might define them, are worthy of attention and respect, but no more worthy than are the opinions of the other founders who were at least as wise and as patriotic as he, who gave as much as he did for the nascent country, but who happened not to have become president later on.

One of those men was the fellow who trod upon that petition from Danbury. His name was Oliver Ellsworth. It is his splendid biography by Michael Toth that I have cited above. But why should we care about what a long forgotten man believed?

Everyone at the time would have known the name of Ellsworth. Unlike Jefferson, Ellsworth was actually a member of the Constitutional Convention—and a crucial member at that. It was Ellsworth and his ally Roger Sherman who crafted the compromise that settled the dispute between the large states and the small states as to the composition of the United States Congress. James Madison, of the populous Virginia, wanted senators to be apportioned to the states according to their population. Alexander Hamilton, royalist at heart, wanted senators to be appointed by the president for life. Madison was uncharacteristically in the grip of an idea—arithmetical equality—while Hamilton was deeply suspicious of the power of local political bodies.

But Ellsworth, as Toth shows, was the real statesman here. He was a devout Congregationalist, and that taught him to respect local autonomy and local authority. For each town in Connecticut was founded as a parish, self-sufficient and independent. And in colonial times, each town sent the same number of delegates to the assembly, regardless of population. Think of it as a way to represent not persons but associations, ways of life, small polities that might contribute a great deal to the broader colony, while maintaining their own vibrant identities. So Ellsworth and Sherman proposed the Connecticut Compromise. The House of Representatives would be apportioned according to population, but each state, regardless of population, would send two men to the Senate, elected by the state legislatures. That compromise fit well with the character of the Constitution as a whole, which was, as Ellsworth said before Madison did, “partly national and partly federal.”

That was not all that Ellsworth did. He was elected to the Senate, where he was immediately appointed to a committee to determine what had been left undetermined in the Constitution: establishing federal courts and assigning them their areas of competence. Ellsworth deserves more credit than any other man as the founder of our system of appellate courts.

That came also with controversy. Were local juries competent to decide cases involving federal law? Though he was himself a Federalist, Ellsworth was no ideologue. He trusted the common people, in their villages and towns, to exercise some measure of authority in interpreting and executing federal law. For that, he won the admiration even of such deeply suspicious Anti-Federalists as George Mason. It was no surprise to anyone, then, that after the retirement of John Jay, President Washington appointed Ellsworth to the highest judicial office in the land. Thus, he became the second chief justice of the Supreme Court, swearing in John Adams as president in 1797, and retiring for reasons of health in 1800.

The man who denounced the Baptist petition and supported the establishment of a state church in Connecticut had been a drafter of the Constitution, which Jefferson was not, a creator of the federal court system, which Jefferson was not, and the chief justice of the Supreme Court, which Jefferson was not. So we should attend to his point of view.

Ellsworth did not make a theological case for his position. That would have been out of place, because state support for churches must rest upon a state interest as such. So he made the same case for the existing law as has been made for public support for schools. We pay for the instruction of children even if we have no children ourselves, because such instruction is a crucial public good. Since a republican society grants to people a wide latitude of action, it is unusually dependent upon the moral probity of its members. If government exists, as Ellsworth said, to promote the “peace, order, and prosperity of society,” it cannot attain its primary end unless the people are brought up in good morals. For that purpose, religious institutions—meaning, in Connecticut in 1802, Christian churches—are highly desirable, even indispensable. “In the opinion of this committee,” wrote Ellsworth, “the legislature may aid the maintenance of that religion whose benign influence on morals is universally acknowledged.”

Grant that the “wall of separation” is a late fiction of our own, dependent upon a misreading of a letter of the most secular of our founders, and one who had no particular relation to the law in question or to our judicial system. We see then that Ellsworth's defense of friendly relations between the state and religious institutions depends upon a question of fact. If good morals are essential for a free republic to endure, and if in fact a certain group of institutions does indeed promote those morals—especially if no other institution succeeds at promoting them—then it follows as a matter of course that a well-governed state may be friendly to those institutions, as it may be friendly to other associations, financial, educational, mercantile, or fraternal, that promote the common good.

It is time for us to reconsider the practical wisdom of Chief Justice Ellsworth.

Anthony Esolen is professor of English at Providence College in Providence, Rhode Island, and the author of Ten Ways to Destroy the Imagination of Your Child and Ironies of FaithHe has translated Tasso’s Gerusalemme liberata and Dante’s The Divine Comedy.

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The Ambiguous Quest for Marriage Equality http://www.thepublicdiscourse.com/2015/06/14480/ http://www.thepublicdiscourse.com/2015/06/14480/#comments Thu, 25 Jun 2015 11:00:56 +0000 http://www.thepublicdiscourse.com/?p=14480

As the US Supreme Court appears poised to require all states to extend legal marriage recognition to same-sex couples, it is instructive to note the ways in which marriage and “same-sex marriage” remain distinctly unequal in those states that already have extended recognition to same-sex couples. True “marriage equality” has not been achieved in those states—and it never will be, as long as states maintain an interest in enforcing the duties that parents owe to their children.

Even states that issue marriage licenses to same-sex couples continue to distinguish between marriage and same-sex “marriage” for many purposes. Consider Massachusetts, which began issuing marriage licenses to same-sex couples more than a decade ago, after its high court declared irrational the link between marriage and child-rearing. Massachusetts law continues to presume that “a man” who is married to the biological mother of a child is the child’s “father.”

To a married man and woman, this provision applies rather straightforwardly. The husband is legally presumed to be the child’s father, even if he is not actually the biological father. But to a man-man “marriage,” the provision can have no application at all. If one of the men is unfaithful and impregnates a woman, then a presumption of paternity cannot perform any meaningful function.

Massachusetts courts have ruled that, in a woman-woman “marriage,” the non-biological mother is presumed to be the second parent if both the biological father and the non-biological mother consent, as in the case where the biological mother is artificially inseminated with the second woman’s knowledge. But what if the father or the second woman does not consent? And where consent is obtained, how effective is the fiction in the long term? It cannot survive the child’s attaining the age of understanding.

Other incidents of marriage can be applied to same-sex couples only arbitrarily. New York’s high court recently interpreted New York’s incest prohibition in light of its two rational bases: avoiding genetic defects in potential biological offspring and expressing New York’s moral disapproval of incest. The first basis can have no application to a same-sex couple, and the second flies in the face of the US Supreme Court’s recent insistence that moral disapproval is not a valid justification for laws concerning sexually intimate relations.

So, Massachusetts and New York continue to treat marriage and same-sex coupling differently. Despite eliminating from law the fundamental predicate that every marriage involves a man and a woman and binds the father and the mother of any children that result from the union, the courts and lawmakers of Massachusetts and New York have left in place incidents of marriage that presuppose this predicate. Yet proponents of marriage equality are not flooding the Massachusetts or New York courts with lawsuits to eliminate those incidents.

This raises a question: What do proponents of “marriage equality” want? If they are asking for governments to make marriage and same-sex couples the same in law, then they are asking for governments to eliminate the incidents of marriage that connect children to their natural parents. If same-sex “marriage” proponents are not asking governments to eliminate those legal securities for children, then they are not asking for full marriage equality.

The Fundamental Law of Marriage

It is not difficult to perceive why Massachusetts and New York distinguish between marriage and same-sex “marriage.” Marriage is the only institution known to connect the well-being of children to the natural rights and duties of parents, which exist prior to positive laws. Marriage strengthens the ties between father and mother and between the pair and their children.

The rights and duties of marriage are not created but rather declared and reinforced by our laws. As I argue elsewhere, they precede and are foundational to our positive laws. In Anglo-American jurisprudence, marriage is a fundamental right because the rights and duties of marriage are part of our fundamental law.

Positive laws—constitutions and statutes—cannot create or destroy these rights and duties. They can only affirm and support the natural rights and duties of marriage and parentage—or not. Many people, not just those with same-sex attractions, would prefer that they do not. Legal protections for the natural rights and duties of the biological family are inconvenient for adults who want the law to affirm their sexual attractions and choices, whether those attractions are homosexual or heterosexual. Protections for children in marriage law eroded dramatically in the no-fault divorce revolution.

Yet as others have explained, it is one thing to eliminate legal protections for children that are grounded in marriage. It is quite another to eliminate the predicate that provides the fundamental rationale for marital norms. Only if marriage is the union of a man and a woman does it make any sense to have paternity presumed without consent, incest and polygamy prohibited, and custody bestowed on biological or presumed parents except for cause.

If it is irrational for states to distinguish in law between marriage and same-sex couplings, then it is also irrational for states to treat marriage as an institution designed to secure the rights of children. Consider the equal protection problem now at the heart of the presumption of paternity in a state such as Massachusetts. A man married to a woman is presumed to be the father of her child, even if he did not father the child. Even if he does not consent, that man is held legally responsible for the child’s well-being. The law imposes on him a legal status that it does not impose on a man who is married to a man, and on different terms than the analogous status placed on a woman married to a woman.

So, the logic of “marriage equality” requires states to eliminate those legal securities for children that are grounded in marriage. In inventing the first right to same-sex “marriage,” the high court of Massachusetts recognized this. In its Goodridge decision, the court declared that the law of “the Commonwealth affirmatively facilitates bringing children into a family regardless of whether the intended parent is married or unmarried, whether the child is adopted or born into a family, whether assistive technology was used to conceive the child, and whether the parent or her partner is heterosexual, homosexual, or bisexual.” Among these various ways of begetting and rearing children, Massachusetts law must be indifferent.

On this foundation, the court confidently knocked over a straw man, asserting that “it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.” Because marriage has no inherent connection to children, it is irrational for positive law to give a special status to natural marriage as against same-sex relations.

The Costs of Pursuing Marriage Equality

The reality of same-sex “marriage” has not yet caught up with the logic; for now, Massachusetts still distinguishes between real marriage and same-sex “marriage.” But even if some of the incidents securing the rights and duties of parents and their children remain in place, the inchoate effort to achieve marriage equality harms the culture of marriage and thereby harms the children whom marriage is supposed to protect, particularly the least well-off.

These are costs of the as-yet-unsuccessful effort to make marriage and same-sex couplings the same in law. The law teaches, and people are prone to learn from it. The law of same-sex “marriage” is that man and woman, husband and wife, father and mother, are fungible. A marriage can be a marriage without one or the other, according to the desires of the adults involved. Thus, the law of states such as Massachusetts reinforces a culture that devalues fathers and mothers as people with distinct duties toward their children.

If, as several courts and nearly all of the media have concluded, it is not rational to believe that mother and father are each uniquely important, then it should not surprise us if people stop admitting that they believe that mother and father are important, or stop actually believing that mother and father are important, or stop encouraging each other to act as though mother and father are important. When marriage and birth certificates no longer designate “husband” and “wife,” “father” and “mother,” people might well internalize the message that the state does not consider these designations important.

Those who resist this message face other costs. In its ambiguous quest for marriage equality, Massachusetts has forced Catholic Charities to stop placing children in adoptions. A Christian college that distinguishes between marriage and non-marriage has been threatened with loss of accreditation. The Sisters of St. Joseph of Boston, an order of nuns who operate a parochial school, have been subjected to proceedings before the Massachusetts Commission Against Discrimination for acting on their religious conviction that marriage is a man-woman union. Anyone who chooses to speak or act consistently with the reality of marriage is being excluded from public life.

So which will it be?

Some people speculate that a majority of the Supreme Court justices are determined to force this social experiment on all fifty states, whatever the costs. Well, what do they have in mind? Do they plan to be logically consistent and thoroughgoing about this? Will they eliminate the rights of children to have legal connections to their biological parents? Or do they plan to leave in place parallel and distinct marriage institutions, as Massachusetts and other same-sex “marriage” states have done so far, one for real marriages and one for same-sex “marriages,” while nevertheless eliminating the freedom to tell the difference?

Only time will tell.

Adam MacLeod is an associate professor at Faulkner University’s Thomas Goode Jones School of Law.

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Lessons from a Life of Hope: Learning from Father Richard John Neuhaus http://www.thepublicdiscourse.com/2015/06/15050/ http://www.thepublicdiscourse.com/2015/06/15050/#comments Wed, 24 Jun 2015 11:00:48 +0000 http://www.thepublicdiscourse.com/?p=15050

Randy Boyagoda’s fine biography of Fr. Richard John Neuhaus could not have come at a more opportune time. In the past eight years, the Obama administration and various elites have shown unparalleled hostility to those who would seek to live out their faith in the public square. Despite numerous Supreme Court decisions upholding First Amendment rights, the hostility shows no signs of abating. Boyagoda’s account of Neuhaus’s life gives us an opportunity to consider the life of America’s greatest advocate for those rights and the lessons Neuhaus offers us today.

Richard John Neuhaus was born the son of a Lutheran pastor in Canada’s Ottawa River Valley. From an early age, he showed the two character traits that would propel him in life: great hope in God and enormous self-confidence.

Self-Confident from the Start

The latter trait developed before the former. Over the course of his life, Neuhaus would establish and edit many publications. This began, Boyagoda writes, with News of Miller Street, when Neuhaus was only nine: “It was full of his musings, of local gossip that he picked up, and, more scandalously, included select excerpts from his big sister Mim’s diary, which he’d found after she left home for Nebraska.” Neuhaus later noted that for Pembroke, Ontario, the publication was first-rate, and offered a revealing self-assessment: “From early on . . . I assumed people would be, or should be, interested in what I had to say.”

That confidence never abated. Years later, George W. Bush recalled that Fr. Neuhaus was easy to talk to because “he never seemed intimidated.” This was not always a good thing. As Boyagoda summarizes, “Throughout his boyhood, Neuhaus’ personal experiences were consistently exceptional, if not always positively so.” His early teachers declared him ineducable, and “beer parties and panty raids,” as he referred to them, got him into trouble in high school. But he got his act together eventually: after bluffing his way into college—he told an administrator he hoped the school would receive his high school diploma “soon”—and completing seminary, he served as a Lutheran pastor at the parish of St. John the Evangelist in Brooklyn.

Neuhaus thrived in city ministry, as did his congregation. The greatest adventure, as he saw it, was to live among the urban poor and to serve as their pastor and advocate. Soon, Neuhaus came to see that his advocacy should expand beyond Brooklyn, and he became involved in the Civil Rights Movement. He and his predominantly black congregation bused down for the March on Washington. His congregation heard his stirring “I Have a Dream” speech—but not Neuhaus. The story (not recounted by Boyagoda) goes that a fellow pastor assured Neuhaus that King would not speak for hours, so the two of them headed to a bar, unaware that they were missing history as they enjoyed their drinks.

Neuhaus would become an even more significant figure in the antiwar movement, helping to found Clergy and Laity Concerned about Vietnam. He soon found himself as one of the leading clergymen of the American Left, surrounded by the right people who thought the right things. The great Protestant theologian Reinhold Niebuhr reportedly shook his hand and said, with satisfaction, “I’m told you’re the next Reinhold Niebuhr.”

Twenty years later, Neuhaus was America’s most prominent conservative Catholic. What made the man of such brimming confidence change his mind? As he saw it, and as Boyagoda tells it, it was more a matter of holding to core principles while others around him changed. Neuhaus tried to maintain a place for himself on the Left and in the Lutheran Church, but when he could no longer do so in good conscience, he left them both.

A Break with the Left

His break with the left took place around three points. First, in Neuhaus’s mind, “the Movement” existed to defend and empower the weak and the marginalized. After de-segregation and withdrawal from Vietnam, his focus shifted to battles over abortion. Who was more weak and defenseless than the unborn child? He soon discovered that the Left was frequently more interested in furthering private rights and protecting class privileges than taking responsibility for others. In “The Loneliness of the Long-Distance Radical” for the Christian Century, Neuhaus declared the Movement “dead,” Boyagoda writes,

because the majority of its members had abandoned its higher ethical aspirations—to bring peace and justice to the poor and war-trodden at home and abroad—for the intoxications of personal liberation-cum-libertinism. . . . Indeed, [Neuhaus] wondered . . . what were those to do who remained committed to reaching “the Kingdom of God” rather than being now committed to achieving “the perfect orgasm”?

Conversations with liberal elites would only drive this home. One in particular stood out for Neuhaus. A prominent doctor assured him that no one should be born who was not guaranteed “the minimal requirements for a decent existence.” Neuhaus reflected: “When I pointed out that, by his criteria, most of the people I work with in Brooklyn should have been aborted in the womb, he responded with utmost sincerity, ‘But surely many, if not most, of the people who live in our horrible slums would, if they could be objective about it, agree with me that it would have been better for them not to have been born.’” Neuhaus thought his congregants had lives worthy of life.

Second, it became more obvious to Neuhaus that the Left held as a “distinctive dogma” that “evil is inherent in, and not accidental to, the American Way.” Once he shared a stage at an anti-Vietnam rally with Norman Thomas, a Presbyterian minister and repeated Socialist candidate for the presidency. Looking out at their fellow protesters burning the American flag, Thomas said, “Richard, don’t they understand that our purpose is not to burn the flag, but to cleanse the flag?”

Third, the Left became increasingly hostile to religion and to living out religious principles in society. When Carter ran for president, Neuhaus had high hopes that he would build a bridge between secular elites and religious masses. Later, as these hopes failed, Neuhaus’s attempts to “cleanse the flag” and build a bridge between religion and politics migrated rightward. There he found presidents interested in listening to religious voices, none more so than George W. Bush. Bush wanted help craft “policy and ideas” based on “strong theology and moral conviction,” he told Boyagoda. It was Neuhaus who coined the phrase that members of the Bush administration would repeat as their goal: “Every unborn child protected in law and welcomed in life.”

First and Foremost, A Man of God

Boyagoda sums up Neuhaus’s project as having two parts. The first part was made explicit in his speeches and writing: “the political, social, and cultural institutions of American public life should be open to religiously informed positions (and persons).” The second part was implicit, demonstrated by Neuhaus’s unflagging self-confidence: “that Neuhaus himself could offer, in his own positions and person, the very best in religiously informed contributions to American public life.”

This two-part observation illustrates the kind of biographer that Boyagoda is: occasionally critical, always judicious, insightful, clever, and entertaining. Of course, the book is not without faults. Here and there, minor errors crop up—the sequence of events or the title of a former employee—and Neuhaus’s kindness and pastoral side are not always as visible as they might be.

Errors aside, Boyagoda captures who his subject was and how he thought. First and foremost, at the core of his being, Richard John Neuhaus was a priest. He entered into public life, Boyagoda writes, “as a man of God who found in that office and vocation both the means and the imperative that ordered his considerable ambitions and energies into protest-framed activism, controversy-making, and coalition-building.” Living out that vocation was the most important thing he did, and he made it clear to those he taught that the same was true for them. They were to understand what they did as a kind of ministry, whether it be writing, political organizing, or taking care of their children.

Neuhaus was a father in another sense, too: that of creating intellectual families. From the time he was a Brooklyn pastor in 1961, Boyagoda recounts, Neuhaus was a master of “intellectual socializing and social intellectualizing.” He persuaded likeminded people across religious, intellectual, political, and cultural contexts to gather. Once assembled, they would have “projects and meetings that reliably led to more projects and meetings and also forged strategic alliances and rich personal friendships and led to much late-night drink and talk—all of which Neuhaus focused, first and last, on questions of public and religious significance.” The noted scholar of John Paul II, Rocco Buttiglione, observed that this was something the late pope and Neuhaus had in common: “they were both centers of great communities of friends.”

Those who would follow in Neuhaus’s footsteps would do well to note these lessons of his life. Religion and vocation matter more deeply than political wrangling, and we must continue to build intellectual families that combine conviviality with fighting for the greatest causes. But Neuhaus was also a shining example of hope. For all his braggadocio and self-confidence, and through great difficulties, he remained more confident in the triumph of Christ that determines the final outcome of history. Giving an account of the authors who had influenced him, Neuhaus concluded with “Paul, above all Paul, always Paul.” He attributed the style of his own confidence to I Corinthians 4:5: “Judge nothing before the time, until the Lord come, who both will bring to light the hidden things of darkness, and will make manifest the counsels of the hearts.” For the bedrock of that confidence, he offered Romans 14:8: “whether we live, we live unto the Lord; and whether we die, we die unto the Lord: whether we live therefore, or die, we are the Lord’s.”

With his biography, Randy Boyagoda shows what that hope looked like in one remarkable life. In a time of increasing hostility to religious faith lived out, such hope is essential. In his final public lecture, three months before he died, Fr. Neuhaus offered one final assessment of how that hope-filled faith is lived out in public life:

We are not naïve, we are not utopians. We are people filled with hope, we Christian people. . . . [Because of our faith in Christ,] we are vindicated, we know how the story turns out. . . . For us, it is only this, that in our little moment—and all of us have but a little time—we are found faithful in living the truth . . . . No part of the Church has ever gotten it quite right, no, but we just have to keep on working at it, because that’s what it means to respond to the invitation to follow him.

Nathaniel Peters is a doctoral candidate in theology at Boston College. A former assistant editor of First Things, his account of Richard John Neuhaus’s death can be found here.

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