Tuesday, June 06, 2006

A Theoretical Solution to Maggie Gallagher's Problem:

Maggie Gallagher has argued that one big problem with gay marriage in particular and the gay rights movement in general is that, if successful those with religious views holding homosexual acts to be sinful will be treated like bigots, much in the same way that those people who believe interracial relations are immoral are rightly written off as bigots.

Here is what I propose: Instead of race as the proper analogy, let's use religion, in particular how those of religion A deal with those of religion B. Let's state, right off the bat, that holding religious convictions that voluntarily chosen homosexual acts are immoral doesn't make one a bigot. Let's give longstanding devoutly held religious convictions the benefit of the doubt.

One's belief that voluntarily chosen homosexual acts are wrong, should be viewed similar to one's belief that voluntarily flouting Kosher norms, or eating pork is wrong. We don't consider a Jew who believes it's wrong to violate Kosher to be bigoted against those who don't follow the Kosher diet. Similarly, we don't consider Muslims who believe it's wrong to eat pork to be bigoted against pork-eaters.

However, in a liberal pluralistic society, we do expect these devoutly held religious convictions to be consigned to the realm of individual private conviction and not written into public policy. And that, it seems to me, is the compromise: If you believe homosexual acts are wrong based on devoutly held religious convictions, you are not a bigot and those beliefs deserve respect as private convictions. But they are not a respectable basis for public policy any more than we would accept writing Kosher or Sharia into law without further public reason.

Eugene Volokh had a great post a little while back comparing homosexuality to Hinduism, noting that Hindus, by their very nature, break Jewish and Christian religious commands just as practicing homosexuals do. Yet, we have no problem fully accepting Hindus qua Hindus at our public place at the table (even if, orthodox Christians believe Hindus, like everyone else, ultimately need to convert).

One could argue that the Judeo-Christian prohibitions on homosexual conduct are far more serious than those of diet restrictions. After all, the Old Testament commands stoning to death of homosexuals (but not for those who violate diet rituals; although the term "abomination" is applied to both violations of the dietary law as well as homosexual acts). But, practicing something like Hinduism or Hari Krishna is dealt with every bit as severely in the Old Testament as homosexual relations. As Volokh notes, practicing Hinduism violates at least three of the Ten Commandments. And, elsewhere in the Old Testament, the immediate imposition of the death penalty is demanded for those who would encourage the worship of false Gods.

Gay rights thus can be viewed as a logical extension of our Founding liberal democratic principles. The doctrine of individual rights and hence the resulting pluralism, was first posited as a solution for religious disputes. People differed as to how far tolerance should extend. Some wanted only the Protestant Christian sects. Some were willing to extend tolerance to everyone but Catholics and Atheists. Some were willing to tolerate Catholics, but not Atheists. But our key Founders -- Jefferson, Madison, et al. -- the ones who formulated the natural rights doctrines which found our nation, believed that religious rights universally applied to all religions, even the Pagan and Infidel ones...to, in Jefferson's words, those who would worship no Gods or twenty Gods. Sure Jefferson, et al. ultimately tied natural rights to God. But Jefferson's "Nature's God" grants men an unalienable right to do not just what the God of the Bible forbids (openly worship false Gods) but for which the Biblical God demands the death penalty. Such an understanding of Nature's God, I believe, could also grant rights to homosexuals qua homosexuals.

The bottom line is, if we can grant rights to other religions like Hindus and not feel as though this violates our orthodox religious convictions, we can likewise grant rights to homosexuals. And, in turn, we can at the same time respect individuals' devoutly held convictions that homosexual acts are immoral, that holding such doesn't make one a bigot, as long as those convictions stay in the realm of private conscience, much like a Jew's religious duty to eat Kosher exists solely within the realm of private conviction and not as public policy. Remember, in illiberal Islam, where they draw no distinction between Church and State, they do write their dietary restrictions into public law (as well as, of course, Biblical prohibitions on homosexual sex and worshipping false Gods).

The liberal democratic West does things differently.


Karen McL said...

Excellent post Jon!

But I also obeject to this violation against the *separation of church and state* on the grounds of it being a State endorsed definition of a religious sacrament - which even if it correctly decribes that definition for a particular religion (or even a group of them...but certainly not ALL), the state has no business in so doing.

A slippery slope INDEED!


Jonathan said...


The Gay Species said...

Very good post, but your argument by analogy fails. You are on more solid ground with appeals to "pluralism." For an extended analysis, see: