The debate over same-sex marriage is so fraught because so much is at stake. The immediate question—the proper definition of marriage—is obviously an important one. Yet the indirect stakes in the contest seem to be even higher. It is almost impossible to argue about the issue without implicating many other considerations that are fundamental to how the country understands itself.
The sweeping significance that this debate can involve was illustrated last week in a televised exchange between CNN host Chris Cuomo and Alabama Chief Justice Roy Moore. Cuomo and Moore could not argue this matter for even a few minutes without getting into a dispute about something of fundamental importance to America, and indeed to any political community: the ultimate origins of the rights of human beings.
Chief Justice Moore suggested that our rights come from God. He implied that there is no right to same-sex marriage because it would be opposed to, or at least not required by, a proper understanding of those God-given rights. In reply, Cuomo firmly stated: “Our rights do not come from God. That’s your faith, that’s my faith, but that’s not our country. Our laws come from collective agreement and compromise.”
Cuomo had a point, but he also made a mistake. He was trying to correct an error of Chief Justice Moore’s, but in doing so he stumbled into a much more consequential and dangerous error of his own.
Constitutional Rights vs. God-Given Rights
Moore erred in bringing up the idea of God-given rights in the context of a discussion of the Bill of Rights, the first ten amendments to the Constitution. This is actually a fairly commonplace mistake, one that is not unique to religious believers who hold that there is a divine ground for our natural rights. Today, almost all Americans—left and right, secular and religious—talk as if our constitutional rights are fundamental in some absolute, metaphysical sense, when they are in fact fundamental only in a legal sense. Many of them, at any rate, are not directly rooted in the fundamental nature of things but are instead prudent and time-tested principles for protecting freedom and justice—such as the right to trial by jury and the prohibition on double jeopardy. They are very valuable to our civilization and should be defended tenaciously, but they are not God-given in the sense of being a direct endowment of the Creator. The Constitution is a man-made law, and as constitutional provisions these rights are, as Cuomo suggested, products of “collective agreement and compromise.”
Cuomo, however, did not leave it at that. He instead stated baldly and without qualification that “our rights do not come from God.” Responding to Moore’s conflation of constitutional rights with God-given rights, Cuomo denied that there are any God-given rights at all. This is a remarkable claim coming from an educated American, and a dangerous claim coming from anybody.
To begin with, Cuomo’s statement involves a straightforward factual error: it simply ignores (as Moore tried to remind him) the Declaration of Independence, which famously presents the rights of human beings as rooted in God: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness.”
The “we” in that sentence refers to “we Americans.” Moreover, in any account of American history and identity, the Declaration of Independence is the core statement of the fundamental principles upon which the country is founded. Accordingly, Cuomo’s assertion that the idea of God-given rights is “not our country” but only a matter of somebody’s personal and private “faith” can only be seen as a ruthlessly peremptory effort to revise America’s traditional identity, one that it has, until now, striven—oftentimes imperfectly—to preserve and respect.
Rejecting America’s Fundamental Identity
This effort to reinvent the nation’s fundamental identity is dangerous. A nation’s traditional identity—its basic moral and political commitments—stands above all the individuals and factions within the country. It provides a common framework in which they can live and resolve their disputes peaceably, according to accepted standards of justice. In America’s case, we have seen respect for this traditional identity work well to correct abuses. Abraham Lincoln appealed to the Declaration of Independence to mount his argument against slavery, and Martin Luther King, Jr., appealed to it in his struggle against segregation.
Indeed, King, perhaps most memorably of all Americans, appealed directly to a God-given standard of law in explaining the injustice of segregation. In his “Letter from a Birmingham Jail,” King wrote:
I would agree with St. Augustine that “an unjust law is no law at all.” Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.
Cuomo would have us believe that King’s argument here was a departure from our country’s identity, since King was appealing to God as an objective standard of the rightness of law, a standard beyond the “collective agreement and compromise” worked out among mere human beings. King, however, was clearly arguing within the nation’s traditional identity, which, as the Declaration teaches, includes an affirmation of God as the source of the nation’s fundamental political principles.
In contrast, Cuomo’s effort to edit the country’s traditional identity is dangerous because it removes the common framework to which King so fruitfully appealed. When a nation rejects its traditional identity, there is nothing left but for each generation to decide for itself what the nation’s core identity should be. This would involve a great moral, social, and political instability that anybody, on mere grounds of good sense, would want to avoid.
It also involves a deeper problem. In practice, holding that each generation gets to determine the content of the nation’s core identity really means that those with the most social power in a given generation get to decide, for themselves and for everybody else, what the nation’s core identity will be. As Edmund Burke remarked in his celebrated Reflections on the Revolution in France, when tradition is utterly jettisoned, there is noting left but rule by “the will of a prevailing force.” Such a situation is obviously fraught with the potential for abuse. Unless we expect the most powerful faction in each generation to deal justly and humanely with the weaker elements in the society (something that history gives us no reason to expect), we should deny them this far-reaching power by maintaining the traditional moral and political identity that the nation inherited from its founding.
Do Our Rights Come from Collective Agreement?
There are also grave problems with the theoretical propositions to which Cuomo says the country is dedicated. Again, Cuomo declared that our rights do not come from God, holding instead that the laws defining our rights are the result of “collective agreement and compromise.”
Yet in defending the authority of a federal court to announce a constitutional right to same-sex marriage, Cuomo is not actually defending a process by which rights reflect collective agreement and compromise. Given the different demands being advanced in the debate over same-sex marriage, compromise could be found in establishing same-sex civil unions—which would provide the legal protections gays are seeking while still allowing the majority to bestow a special status on marriage as a union that is uniquely suited to the procreation and rearing of children—or perhaps in simply letting each state decide the question for itself—which would leave gays free to live as they wish, although their unions would not be legally recognized everywhere in the nation. But when a federal court decides the question of same-sex marriage—either declaring a right to it or holding that no such right exists—there is no compromise: one side wins and the other loses.
This is a perfectly appropriate outcome, because the function of courts is not to craft compromises but to give effect to the law. Nor would a federal court ruling on this question honestly reflect “collective agreement,” since courts are not established to reflect public opinion, nor are they suited to doing so. In our system, that function is assigned to the legislative branch. Cuomo’s support for a federal court ruling of a constitutional right, however, necessarily precludes the ability of elected legislators to decide the issue in a way that reflects collective agreement.
Might Doesn’t Make Right
There is an even deeper and more dangerous problem in Cuomo’s position. It is self-defeating and incoherent. He clearly wants to affirm the legitimacy of a judicial ruling declaring a right to same-sex marriage. On the other hand, he defends such a possibility on the basis that our rights are the product of compromise and collective agreement. In this view, however, neither gays nor anybody has a fundamental right to marry, or to anything else.
Suppose that a society not only makes it illegal for gays to marry, but also to own property or work in order to earn a living. According to Cuomo’s own statement, no one could hold such an arrangement to be unjust: it would, after all, reflect the dominant opinion of that society at that time. To judge such an arrangement to be unjust one would need to appeal, with Chief Justice Moore, to some higher standard of justice than the “collective agreement” of a given society.
In defense of a movement in favor of a right to same-sex marriage, Cuomo noted that “times change, definitions change.” In the past, he suggested, “we didn’t think that blacks were equal to whites. That changed.” Cuomo is, of course, correct in saying that the awakening of whites to the rights of blacks was a positive development. The problem, however, is that his formulation is utterly devoid of any standard by which to judge whether such changes are good or bad. If “change” is self-justifying, then a movement backward in the direction of affirming the legitimacy of race-based slavery would also have to be accepted.
If rights are only the product of “collective agreement and compromise,” then slavery was not unjust at the time it was practiced in the United States. After all, dominant opinion at the time was tolerant of it. Some Americans wanted to own African slaves. Many others disapproved of this choice, but saw no easy way to prevent it. The slaves, of course, did not want to be slaves, but they were a small minority with no social or political power. Accordingly, Cuomo’s process of “collective agreement and compromise” determined that Africans in America would have no rights—or at least no rights incompatible with their being held as property by other men.
Again, to find some standard by which to condemn this arrangement, one would need to proceed with Chief Justice Moore—and, as we saw, Martin Luther King, Jr.—to some standard beyond the collective agreement of a particular generation. Such a standard is provided by the Declaration’s claim that some rights are given to all human beings by God, and therefore cannot be taken away by the limited authority of the majority of a passing generation of men in a given society. Slavery is wrong, because it is inconsistent with the rights human beings receive from their Creator, irrespective of any “collective agreement and compromise” to the contrary.
Chris Cuomo’s desire to revise America’s traditional commitment to the idea of fundamental rights as an endowment of God would merit little attention if it represented nothing but one’s man’s intellectual idiosyncrasy. This is almost certainly not the case, however. Cuomo is the son of one governor of the State of New York and the brother of another. He attended an elite prep school and then earned his bachelor’s degree from Yale University. He got a law degree from Fordham University and now works for a national news network.
His remarks are evidence of a desire on the part of America’s dominant intellectual and cultural elite to divorce America from its traditional political identity and from the notion that politics has any connection to God. Since this elite wields tremendous social influence and political power, it is easy to see why it would not trouble them to cast aside these restraints. It should trouble the rest of us a great deal.