10:00 – 11:30 a.m.
Gerard V. Bradley, professor of law at the University of Notre Dame; filed an amicus brief with the Supreme Court on behalf of the Family Research Council and Focus on the Family in Lawrence and Garner v. Texas (2003), the Texas anti-sodomy law case
Andrew Sullivan, senior editor and former editor at The New Republic; columnist for Time; Washington correspondent for the Sunday Times of London; author of Virtually Normal: An Argument About Homosexuality; editor of Same-Sex Marriage, Pro and Con; and blogger at AndrewSullivan.com
E.J. Dionne, Co-Chair, the Pew Forum, and Senior Fellow, the Brookings Institution
LUIS LUGO: Good morning and thank you all for coming. My name is Luis Lugo, and I am the director of the Pew Forum on Religion and Public Life. The Forum is a nonpartisan organization and we do not take positions on policy debates. Before we get started, I have just a small little favor to ask of you: Please turn off your cell phones or put them on vibrator mode if you must have them on. Thank you.
It is my pleasure to welcome you this morning to a timely discussion that will clearly violate one of Emily Post's most important rules of etiquette: "In polite company one should not talk about religion, politics or sex." Today, we're going to talk about all three of them at the same time, but we'll seek to honor Emily Post by maintaining the Forum's trademark tone of civility.
We're here to discuss important religious and political issues surrounding the question of same-sex marriage. As I'm sure you're aware, barring unforeseen changes on May 17th, less than three weeks from today, Massachusetts will become the first state in the union to issue marriage licenses to same-sex couples.
The ruling by the Massachusetts Supreme Judicial Court requiring the state to provide such licenses came down in November of last year, as I'm sure you'll recall, and it sparked a national firestorm of debate. That included congressional and presidential discussion of a federal constitutional amendment defining marriage as a union between a man and a woman.
As you know, this issue has now been joined in states throughout the country. Fortunately for us, a Pew-funded sister project, Stateline.org, has been following the story closely across the country. To help you sort things out we have included Stateline's hot off the press report "State of Marriage Laws in the States" in the packet you received this morning. This is from just a couple of days ago, a 50 state run down on marriage - on gay marriage laws. I encourage you to read that and I wanted to thank Gene Gibbons, the managing editor of Stateline.org, for making this timely and very helpful scorecard available to us.
It probably will not come as a surprise to you that people who are very religiously committed are more strongly opposed to gay marriage than any other segment of American society. According to another sister project, the Pew Research Center, nearly 80 percent of those who attend religious services at least once a week oppose gay marriage, and almost 60 percent of them oppose same-sex civil unions. On the other side of the religious divide, only 46 percent of those who seldom or never go to religious services oppose same-sex marriage, and only 32 percent oppose legalizing same-sex civil unions.
What might be a bit more surprising to you, perhaps, is how this issue unifies these two groups. They are, as a matter of fact, more interested in this topic than are moderately religious people. Some 68 percent of people who attend religious services at least once a week and 64 percent of secular Americans follow this issue very closely. That's about 10 percentage points higher than those who are moderately religious.
Now, all of these numbers say one thing very clearly: A lot of people out there are very interested in the questions we'll be discussing this morning.
We are very privileged to have with us two speakers who have thought and written extensively about these questions and who have graciously agreed to jumpstart the conversation for us.
So without further ado, I'm going to hand things over to my good colleague E.J. Dionne who will be introducing the speakers and moderating the discussion this morning. E.J., as many of you know, is a senior fellow at the Brookings Institution, a columnist for The Washington Post, a professor at Georgetown University and co-chair of the Pew Forum on Religion and Public Life.
E.J., it's all yours.
E.J. DIONNE, JR.: Thank you, Luis, and thanks to everybody who worked on putting this together. We'll get to that at the end. When Luis talked about the Forum's trademark tone of civility, I was thinking maybe someday we should just stage a brawl for a change, but then I was thinking that on this discussion especially, brawls are so common that there is an awful lot of room for the kind of discussion we are going to have today between two incredibly thoughtful people.
Andrew is one of the most theologically sophisticated people I know, and this may be the only debate on this topic ever where both sides may invoke St. Augustine, Thomas Aquinas, John Courtney Murray and Cardinal Ratzinger. I think it is very possible that that could happen in the course of this debate.
Andrew is a senior editor at The New Republic, a magazine he edited from 1991 to 1996. He is also a columnist for Time, the Washington correspondent for the Sunday Times of London and a political blogger at andrewsullivan.com. In fact, I think you were one of the very first of the bloggers in the country. His book Virtually Normal, published in 1995, subtitled An Argument About Homosexuality was one of the best selling books on gay rights, was translated into five languages and it is really, for those of you who have not read it, a magnificent book. Parts of that book show what I mean when I talk about Andrew's theological sophistication.
He is also the author of Love Undetectable: Notes on Friendship, Sex and Survival, and he is the editor of the just published "Same-Sex Marriage: Pro and Con: A Reader." He has also written for The New York Times, the Wall Street Journal, The Washington Post, and he has appeared on more than 100 radio and television talk shows, and he is still here to tell the tale.
Born in England, he holds a B.A. in modern history and modern languages from Oxford University. His Ph.D. in political science is from Harvard University where he taught moral and political theory for several semesters. Outspoken on gay rights, he testified before Congress on the Defense of Marriage Act in 1996.
We're also very, very honored to have Gerard Bradley here today. He is a professor of law at Notre Dame University, where he has taught since 1992. A noted scholar in constitutional law, as well as in the area of law and religion, he teaches in Notre Dame's trial advocacy program, long considered to be among the top 10 such programs in the country. His publications include Catholicism, Liberalism and Communitarianism, Church-State Relations in America, and many articles in law journals and in the National Review.
Recently he authored the amicus brief in the Lawrence v. Texas sodomy case on behalf of Focus on the Family and the Family Research Council. He helped draft the proposed constitutional amendment defining marriage, and he is co-editor of Same-Sex Attraction: A Parent's Guide. He served as director of Notre Dame's Natural Law Institute and as co-editor of the institute's American Journal of Jurisprudence. He has served there since 1996. In his wonderful list of achievements includes being the former president of the Fellowship of Catholic Scholars, vice president of the American Public Philosophy Institute, a member of the board of advisers of the Cardinal Newman Society, chair of the Federalist Society's Religious Liberties Practice Group - I could go on and on, but you get the picture.
This is an excellent pair. What we'll do here is have each one talk for about 15 minutes, I'm going to pose a couple of annoying questions to each of them, and then we will very quickly go to the audience. We very much want you to join this discussion early on, and I will just reserve the right to continue to ask annoying questions as we go along.
Andrew, bless you for being here. Thank you very much.
ANDREW SULLIVAN: Excuse me for my hobbling. I normally attribute my inconsistencies and incoherencies to general muddleheadedness and human imperfection, but today I have another culprit: Vicodin. I just had a hernia "repaired," the most euphemistic term I've heard in my life - (laughter) - and they promised me, "Oh, you'll be up and running within a couple of days." And here I am. I can't even blog, let alone run. Those of you know how addicted I am to blogging will understand how profound a sacrifice that has been. And I wondered, Gerry (sp), could you possibly pass me the water just so that I can - thank you so much.
I want to make today just a few brief arguments in the small time allotted and then hope to have a conversation. Most of the arguments I'm going to discuss, I think, are going to be what could broadly be called conservative arguments. This debate has become polarized in the last year or so between what has been described as a conservative camp and a liberal camp, and I think that it is a much more complicated and interesting topic than that would imply. I come at this from a variety of viewpoints, but one of the viewpoints I do come from is definitely a conservative one, and I believe that the ability to integrate homosexual citizens and family members into their own society and into their own families is an absolutely critical moral challenge for this generation and for future ones. This is fundamentally the argument for allowing all citizens to enter the institution of civil marriage. It is at root a very pro-family argument.
People tend to think that homosexuals are born under a Guthrie bush somewhere near Castro Street in San Francisco. They pop up out of the womb already in a leather harness on the back of a motorbike, or pop out of the womb with an absolutely unerring sense of what drapes will go with which wallpaper. But the reality, of course, is that gay people are born everywhere. It's a remarkable fact of this minority that it is absolutely endemic to the society and, in fact, endemic to every society that has ever existed. Gay people come from and live in and grow up in heterosexual families. Unlike any other minority, they are absolutely integrated into the broader society from the minute that they are born.
The notion that these people should leave their homes at a certain point to go out into the broader world and then find that their parents have actually changed the locks and thrown away the keys, and when they want to come back into their own families as fully-fledged members of those families, as married couples, they're denied entrance back in. To tear families apart in this way, to tell one sibling among many that they cannot have the same ritual, the same process of integration into their own family, is a terribly destructive element in the stability and maturity and love that every family, I believe, should uphold.
It's also, alongside many other traditionally conservative arguments, an argument for integration, not for Balkanization. I'm one of those people who don't believe that human beings should be cordoned off into certain categories by their identity, whether it be black or female or Latino or Jewish or gay or any of the other appellations that we have managed to bring to this complicated debate about identity. I think, in general, that so far as we possibly can, we should treat people as individuals, regardless of their attributes, regardless of their identities, and that our entire political system traditionally has insisted upon treating people as individuals before we treat them as gay people.
I made a point once of talk of a new phenomenon called "as-as." These people are people who start every sentence with the word "As-a," as in "As a gay person I'd like to say," "As a black lesbian disabled person, I'd like to say," "As a white male I'd like" - Well, as a human being, I believe that all human beings are made in the image of God, and, as citizens, deserve simply the same treatment from their own government that every other citizen demands and assumes. I see no reason why every citizen shouldn't be treated the same way, and I see very many good reasons why a whole group of citizens should not be not just denied this, but cordoned off in the very Constitution and told that they do not and can never have the same rights as everybody else.
I also don't believe in setting up institutions that require different standards from different people. I don't believe in setting up fake or euphemistic institutions like civil unions or domestic partnership that somehow demand fewer responsibilities and fewer rights than traditional marriage. There's a phrase for having lower standards for particular minorities; it's a phrase coined by the president of the United States. It's called "the soft bigotry of low expectations." I do not see why any group in our society should be subjected to that soft bigotry.
There are some who argue that marriage alone is the exception to all these general principles because marriage is about procreation, and, by definition, homosexuals, or two homosexuals, whether they be two women or two men, cannot procreate and therefore are barred from marriage. But, of course, as every court that's had to deal with this has recognized, the minute you bring that up in a civil context, you find that the state already does give marriage licenses willy-nilly to people who cannot procreate, do not wish to procreate, have never procreated and are not interested in procreating. The loophole in this law is so big you could drive a huge lesbian Mack truck right through it.
The point is also that this is not some tiny fringe of exceptions. If you look at married households in the United States, you will find a majority of married households, a small majority, are households without children. Also, a quarter of same-sex couples already have children. It seems to me that the procreation argument falls apart legally as soon as you recognize it is not a criterion for civil marriage upheld for heterosexuals. It fails socially and culturally because in our culture at this time, procreation is not understood to be an essential part of what it is to be married.
I'd like to appeal also to simple common sense among conservative people. Gay people exist. They have always existed. They always will exist. They are a fact of human society, of human life, of human nature. It just so happens that it's taken millennia for this tiny minority, excluded by a very fundamental fact, to have managed to screw up their courage to talk about who they actually are, why they're not freaks, why they are human beings, why the same need for love and companionship and friendship and support and institutional structures applies to them as human beings, too.
These people are around. They exist; they're in your families, they're among your friends. They're not ashamed anymore. They've been through enormous trials over the last few years. They've been through one of the most horrifying epidemics that any community has suffered in a very long time, losing up to a third of a million people in a small community. And through all of this, rather than seeking further radicalization, rather than succumbing to the possibilities of bitterness and anger, this group has said, Let us turn this experience into one that is positive, let us rejoin families, let us become fully part of our society. Let us contribute as equals to the country and society in which we all belong.
And this burgeoning group of people, this natural constituency for people of conservative bent, for people who believe in small government and freedom and treating people equally and with dignity, they're told by those very people, Sorry, go away. We don't want you. We don't need you. You sicken us. You appall us. The very concept that you might be able to commit yourself to one another in love and fidelity is so sickening and outrageous to us that we're prepared to amend the very Constitution of the United States to make sure you are never under the illusion that you are an equal person or an equal citizen.
It strikes me as one of the great tragedies of our current society that a group with so many aspirations, so much potential, so much eagerness to become a part of this family, should have the door slammed, violently in some instances, in their faces.
I would like, very briefly, in conclusion, to deal with the federal marriage amendment. It is absolutely, under any circumstances, it seems to me, unnecessary. In this country, the states have always historically dealt with the matter of civil marriage. No other institution, except for the egregious example in 1996 with the Defense of Marriage Act, has ever deemed it necessary to intervene in every state's right to define marriage. I thought that conservatism was about defending the rights of states. Not today's conservatism, which holds hostage all its old principles about limited government, about states' rights, and about protecting the Constitution in order to placate a very small minority of religious people.
Secondly, it strikes me that the Constitution should only be amended under extreme circumstances. It should only be amended if very obvious constitutional and procedural matters are at stake, things like who is in line for the presidency, things like how do we arrange the Senate, things that have to do with the constitutional structure that we live in. To resolve extremely emotional, divisive and polarizing social questions by trying to force them into the Constitution itself is to do damage not only to the fabric of our society, it is to do terrible damage to the Constitution by using it as an instrument of social policy. We all know the polls on this issue. The country is divided very evenly and very deeply about whether to amend the Constitution of the United States. That in itself is an argument not to do it, that in itself is an argument not to use the Constitution to divide a country where a Constitution is precisely designed and required to bring it together.
Moreover, there is no danger of one state's civil marriages being forced upon other states against their will. There has always been a policy in this country called the "public policy exception," in which individual states can say they do not recognize the marriages from another state, insofar as those marriages violate the public policy of the second state. That has always been the case. That's why for over a hundred years we had a patchwork of laws throughout the country on interracial marriage where an interracial couple could travel across the country, be married, unmarried, married, unmarried, married, unmarried, depending which state line they crossed. We allowed that to happen for over a hundred years, and the society didn't fall apart. Those laws and that understanding still exists.
If you aren't secure in that understanding, there is something called the Defense of Marriage Act in which the Congress of the United States stamped its foot in 1996 and said not only is this already the case, we emphatically underline that in federal law.
Thirdly, 37 individual states have already passed their own Defense of Marriage Acts to make it absolutely clear what their public policy exception is. The notion that we should advance an amendment to the federal Constitution when not even in the beginning of this process through the courts has begun to take place, when we don't have a single case yet of a civil marriage license in this country applying from one state to another, when we don't yet have a single case of a single civil marriage existing in one state, when in that one state there's a potential after two years of those civil marriages being converted into civil unions anyway, such a move is not only extraordinarily radical, it is extraordinarily unnecessary.
So I finish by saying this: On the principle of family, on the principle of equality, on the principle of constitutional protection, on the principle of allowing democracies to debate openly and fully and in good time the consequences of a major and important social change, there is every reason to support including everybody in the American family and every reason to oppose writing into the very Constitution of the United States - a Constitution that upholds equality for all citizens - that one group of citizens - Think how chilling this would be for anybody, if one group of citizens would be denied fundamental, basic constitutional rights. Using the Constitution to single out a group of people for discrimination; it really is the most radical attack upon the Constitution of the United States that we've seen, certainly in our lifetimes, and it's one that I think all people, regardless of how they feel about the question of same-sex marriage, need to stand up against and fight with every fiber of their being.
MR. DIONNE: Thank you so much, Andrew. Now, Gerard Bradley.
GERARD V. BRADLEY: Well, I move to the microphone rather quickly - not to prove to you that I've not had a hernia operation, at least not recently, but I haven't had one recently. But, actually, I'd like to hurry through my remarks because, frankly, I can't wait to hear some of E.J.'s annoying questions, and also because who knows what'll happen during the question period. Perhaps that brawl that he so wistfully imagines will actually break out then.
But I am grateful for the opportunity, the invitation from the Pew Forum, because it promises a bit of a respite for me. Like Andrew Sullivan, I've not been too shy about tackling, in public forums such as this, the question of same-sex marriage head on: Should we have it or not? I've even criticized Andrew Sullivan's views here and there, and he's kindly returned the favor. In one article - one of his columns in The New Republic several months ago, perhaps as much as a year ago - he described myself and my friend and collaborator at Princeton, Robert George, as - and this is close to a quote - two of most orthodox Catholic scholars on the planet. Now, however it was intended -
MR. DIONNE: That was a compliment from Andrew. (Laughter.)
MR. BRADLEY: Well, we haven't rehearsed this, but however it was intended, I took it as a compliment. Now, more recently Andrew looked at the authors of the Federal Marriage Amendment and described them as "radical natural-law jurisprudes." I confess, again, I find myself complimented.
So I proceed to the body of my remarks, but noting that today's conversation is really more a conversation about the same-sex debate, a conversation you might call a second-order conversation about certain kinds of arguments, certain kinds of contributions to the same-sex marriage debate, and those elements or second-order features are really having to do with religion: theological argument, what are the religious convictions lying behind positions people take on this issue, and whether, or what role religious pluralism should play in this debate.
So I turn to a second-order conversation, this conversation for analyzing the conversation about same-sex marriage. Now, the questions that are posed to me in the invitation are important questions. Probably the substance of them has been at the heart of English-speaking political philosophies since World War II. The substance of these questions - religion, public argument, civil law - those things have been at the heart or near the heart of constitutional law since World War II as well.
Now, my judgment is that with specific reference to the same-sex marriage question, second-order conversational constraints or doctrines or norms about religion, the public square, civil law, don't have much traction upon the debate. I know that these matters, these second-order constraints, are often conceived with the view of protecting some divisive moral question from a head-on confrontation with political processes, and that is to insulate the body politic from such divisive questions that sometimes these second-order constraints are called into being. But I don't think it works here. I don't think there's any way to escape a confrontation with the question about the reality of marriage, what really is marriage, if marriage is really something at all.
But back to the matters at hand. Religious convictions which lie behind deeply held beliefs about marriage, to answer the question descriptively, would require much more time and an encyclopedic knowledge of American religion. I leave that aside. I should like to make two points that are less descriptive about this question, posed to me in the invitation - the convictions behind deeply held beliefs about marriage.
It seems to me we can say that characteristically - again, characteristically, not universally - but characteristically, religious believers, at least the believers that we see in our society, think of religion and marriage as a matter of value added - transcendent value added; that is to say, to the natural reality of the common understanding of what they think is noble about marriage by virtue of reason and experience, they find in their religious belief some additional significance, meaning, or point.
Now, take the Catholic Church, for example. Catholics understand marriage as a kind of natural moral reality but also as a type or representation of Jesus' fidelity to his church, the idea of Christ the bridegroom. But again, I think characteristically, believers add something to what is naturally knowable by marriage, some additional significance, some transcendent matter or some other kind of signification that arises from their beliefs. Now, in our constitutional order, such additional significance as transcendent value added really is supposed to be invisible to the lawmaker. It's beyond the competence of public authority to really care about. That is to say, even under free exercise doctrine, just to speak about the law in particular for a moment, if a matter is generally permitted it may not be treated differently for those people who attach some religious significance to it, and if a matter is generally prohibited, people aren't allowed to do it because of the religious significance they attach to it.
Okay, second, I don't think the transcendent attributes of marriage that I'm describing in very general terms are any part of the political program or the public arguments made by believers in favor of preserving traditional marriage. At least as far as I can tell, in the self understanding of those people making the arguments in public about traditional marriage, they do not understand themselves to be making theological arguments. They understand themselves to be making arguments based upon reason and experience. They could be wrong about what reason and experience show, but they certainly do offer their arguments as matters of reason and common experience.
Okay, second question: more generally, theological arguments in the public square. It seems to me that in the last 20 years or so, after very heady times from between around '75 to '85, and during that time there were many comprehensive doctrines about keeping religion out of the public square found in scholarly journals, even high journalism, and it was probably the high tide - that is, 1985 or so was the high tide of a privatization project in the United States Supreme Court. Again, I think 1985 marked the high watermark of the Supreme Court's attempt to keep religion out of public life, to make religion private, and in that sense to have a secular public realm.
Over the last 20 years or so, not only in court but also in political philosophy and in high journalism, we've seen a retreat from that sort of zenith of privatization. I think now what we can say about theological argument in the public square, we can say only about gross or clear cases, and I'll offer a few norms for theological argument in the public square taken more or less faithfully from Supreme Court doctrine, but a few norms about theological argument.
One I've already mentioned, that where people make arguments in the public square that they offer on the basis of reason and experience, but arguments about which they hold some theological convictions as well, I think those theological convictions operate not at all in the public square. This is more or less the meaning of our Free Exercise Clause. The mere coincidence of some legal norm with religious convictions of even a great number - even a majority of people - is neither here nor there. It is mere coincidence of religion and civil law - it is meaningless. Also, a law should be deemed to have a secular basis - that is, a constitutionally permissible basis - unless the basis for it is entirely religious. That is to say - and this I think is a faithful rendition of Supreme Court doctrine as it presently stands - if there is a secular basis for a law, then it is constitutionally permissible. It is impermissible only if it is entirely rooted in theology.
Then finally, as a special category of acts - and you might say norms about acts that are intrinsically or entirely religious - that is to say, in the law there is a special category in norms about prayer, worship, other acts, which have no secular or non-religious analogue. But I believe that none of these rules for conversation in the public square, none of these norms about theological argument, have any traction on the debate about same-sex marriage. It seems to me again that in the course of the public argument over same-sex marriage, defenders of traditional marriage are not relying upon what might be called strictly religious sources or entirely religious reasons, just to illustrate a little bit more, or explain by way of illustration.
I don't think believers in the public square are appealing to the authority of private knowledge, including revelation, or to the authority of religious texts, or to the authority of a particular religious figure. Now, to the extent you do see that in the public square, I think what one wants to say in that context is not so much that it violates a norm of conversation but rather that those are not reasons at all. In other words, we don't need a rule that excludes such reasons, so called, from serious consideration because such appeals have no force upon the minds of people who don't already share the commitment to that authority: the sacred book, the high religious figure. That is to say, such appeals to private sources of knowledge or to authority just aren't reasons at all. And I think that's an adequate response to such arguments in the public square.
Finally, I think the third question posed in the program, the invitation, goes something like this: it's about pluralism and how it affects our decisions concerning change and marriage laws. I render the third question, at least in substance, this way: does our increasing religious pluralism influence - I suppose I should say, should it influence, and if so, how - our resolution of the marriage question before the House, the same-sex marriage question.
Again, I think the third question in substance is, Should our increasing religious pluralism influence our resolution of this matter, and if so, how? Well, the answer is, I think not at all - none, nada, zilch. And that's because I doubt whether our religious pluralism is increasing in any significant way, and I'm almost sure that no such increase in religious pluralism is at the root of our debate over marriage.
How do I say that, or why do I say that? Well, the movement to change marriage laws to allow for same-sex marriage is at least a decade old. I think it's surely not more than 20 years old. It burst on the scene in a big way about 10 years ago. For discussion's sake, let's stipulate it goes back 20 years. I don't see that there's been any significant increase in religious pluralism during that time, and surely none at the root of the movement, whether the movement began in 1993 or 1983.
Now, at the root of the movement to legally recognize same-sex marriage is not religion but rather culture. More specifically, the argument that I take most seriously is the argument posed by Andrew Sullivan in his remarks today. It's an argument that anybody defending traditional marriage has to reckon with. It's an argument from culture and it's an argument from law, but the argument goes something like this: given what marriage has already become in our law, what it already is in our law, and how it is lived, how marriage is lived, inhabited, carried out, by a very large number of married couples in our society, it is unfair to exclude same-sex partners from that legal status.
This argument builds not upon religion or even upon some peculiarly gay ideology, but rather begins with what you might call the straight world's rebellion against marriage. That's a rebellion that began probably in the mid-1960s and continues to the present day. People look at the way many married couples act and seem to think about their marriages, and people look at what many homosexual partners can do and may think about their relationships. You see that many married men and women think of their relationships mainly as an emotional, financial and sexual partnership involving the mutual conferral of important individual benefits. Proponents of same-sex marriage say that homosexuals and lesbians are quite capable and have demonstrated their capability of entering into such relationships. Such proponents of same-sex marriage conclude that opposition to same-sex marriage is an arbitrary exclusion of persons from the straight marriage club.
Okay, after this short march through the three questions presented in the invitation, I aim to close and get to the annoying part of the program. I may be bold at this point to question the invitation's summary description of our encounter today. The summary description that I have in mind is this: about the legal and policy implications of religiously informed arguments on same-sex marriage; again, the invitation's reference to the legal and policy implications of religiously informed arguments on same-sex marriage.
I submit in closing it might well be better to put it the other way around. Why not think, rather, that norms about religiously informed arguments are the passengers and not the engine of the train? What I mean is this: if the outcome one is seeking, in politics or law - in a controversy about stem cell research, or cloning, or abortion, or laws against non-marital sexual activity, or some controversy about including non-Darwinian accounts of human origins in public school curricula, or a controversy about pornography or same-sex marriage - within that controversy one's own position can be advanced against opposition, which can be plausibly styled to be religious, one is certainly tempted to develop side constraints, second-order norms, about religious arguments. This need not be rank opportunism, but it could be more than that. This could be also a way of thinking about the development of the whole idea of a secular public square, whether going back to World War II and its immediate aftermath.
What the idea then was - I think it was that our democracy, our democratic way of life, is actually not a reference to political mechanisms but really to a political culture, to the kind of person who would live and come to be reared in that political culture. One might find going back that a theory of democracy gave us, shortly after the war, a secular public ground, because it was thought then that democracy presupposed a kind of pragmatic spirit, a kind of commitment to scientific ways of understanding the world, and relativism and morals. And during that time, many people - I think many people on the Supreme Court saw in religion, especially the Roman Catholic Church, an authoritarian personality wed to a deep and unwavering commitment to immutable or objective moral norms.
So I submit to you that going back to the war, shortly thereafter secularism was midwifed by a democratic theory or a theory of democracy, and perhaps more recently - and this is my final comment - our understanding of how to justify, sustain, maintain liberty now seems to be at odds with deep and abiding commitment to objective morality, which commitment probably is much more commonly associated with traditional religious roots.
Think back to '92 when the Casey abortion case decision and the so-called mystery passage in which the heart of liberty is a very deep and strong subjectivism and morals, the idea of making up your own moral universe - now, a theory of liberty of that sort is going to have implications for the role of religion in public life insofar as one makes the additional judgment, which I think is a safe one to make, that at least traditional religious people are more or less committed to an objective morality and do indeed reject subjectivism and morals.
MR. DIONNE: I don't think one of our invitations has ever been subjected to such sharp and searching philosophical scrutiny. Thank you.
And I hope this transcript will be available to the people who do the OED so that when the word "jurisprude" goes in there, Andrew gets full credit for it. (Laughter.)
I decided that I'm in some ways playing the role of a Fox News anchor today because I'm actually moderating a debate between two conservatives - (laughter) - two particularly thoughtful and intelligent conservatives. That's one of the reasons why I thought this debate would be so interesting and enlightening. So I really do want to question each of you as conservatives on this, and I want to pose, in a sense, the opposite question to each of you.
To Andrew - and Wendy Kaminer and I were talking about this when we came in - and, Wendy, I hope you will join this discussion - why should gays and lesbians make marriage a central demand of their movement? Why not civil unions, or even more, why not arguments in favor of a less restrictive view of sexuality? Why should gays and lesbians want to imitate a heterosexual institution, and perhaps especially adopt the idea of heterosexual traditionalists who were so often hostile to gays and lesbians?
And to Gerard, I'd like to ask the opposite question, which is, why shouldn't conservatives support gay marriage? If you look at this development within the gay community, it is a development in favor of the ideas of fidelity, of love, of commitment, of monogamy. It is an argument that is actually ratifying the very institution of marriage that conservatives and traditionalists defend. Why shouldn't conservatives, as David Brooks argued some months ago in a very powerful piece in The New York Times, not want to be on the side of gay marriage? And I thought you might use this question also to answer each other's arguments.
Andrew, why don't you go first?
MR. SULLIVAN: Well, the answer about marriage is that it is our institution. It's our families. The question is not why we should want it, it's why would we not want it? I was brought up, like many young Catholics, in a family with too many people in it, for whom the rituals of Easter and Christmas and the general rituals of communal family religious life were very much a powerful presence in my life. There was holy water in every room. My grandmother referred to the Virgin Mary so often I thought, as a child, she was probably a distant relative who might come to visit someday. That was my family. And the critical thing that my family would always say to me is that one day will be the happiest day of your life and our lives, when you find that person whom you want to commit to and become part of this family again as a grownup.
Why should I give up that dream when it was my dream and it's my family and it's my faith? Why, because of something that God made me, should I be forced outside of my own family and my own faith for reasons I do not choose and for reasons that make no sense?
For me, the question is not why gay people are seeking the right to marry; for me, the question is why did it take us so long to arrive at the most fundamental issue in our inequality? What levels of lack of self esteem, of self hatred, and of general being battered down by the ideology both of the far left - who told us for so long that marriage was a bourgeois, disgusting, patriarchal, heterosexual institution - and, of course, by the far right, who just simply loathed our existence and didn't even mention us by name - with a president, for example, who still cannot mention us by name, will not use the words to describe us. That's the level of respect.
So the answer is simply we demand it because it is ours, just as African-Americans demanded equal citizenship because it was their country, too, just as those gay people who are out there on the front lines in the military serving their country deserve to be congratulated and honored, not discharged and smeared and attacked when they come home, for doing something that we should all be very proud of.
We are this country. We teach your kids. We build your schools. We do everything in this country that everybody else does, as well and as badly and sometimes better than others. Why should we be excluded from families? Why should we be defined outside of the very home that we belong to?
MR. DIONNE: Thank you.
Gerard, how would you answer the other half of that question? Andrew is making, in so many ways, a profoundly traditional argument here. Why are conservatives of the certain type - or, let's just drop the word conservative or liberal - why are traditionalists so opposed to gay marriage when it is an embrace of so many of the very ideas and sentiments that traditionalists would urge upon us?
MR. BRADLEY: Let me start by offering a sentence or two in connection with Andrew's question. I can't say anything about the internal debates within the gay community about what the objective of the movement ought to be, but it does seem to me that even if there's just one person - it could be Andrew Sullivan - who wishes to marry and would or has chosen someone of the same sex to be spouse, well, then the law ought to recognize that if, in fact or in truth, it is possible, if that is a marriage. In other words, nothing about the law's response to same-sex marriage requires a certain critical mass in the number of applicants, just as it would be the case that if polygamy were a true or valid or morally worthwhile version of marriage, and if there were one would-be polygamist, that person ought to be able to marry.
This is my segue to answer the question that E.J. has proposed to me. I think in this case, as I refereed to in my remarks, that it's central to the law's success that the law hold onto the defining features of marriage and what marriage in truth is. So the question is - whether it's a question for conservatives, liberals or anybody else - what are the real or true, sound or valid features of marriage, if indeed marriage is the kind of thing that exists as a moral reality at all?
Now, it is my view that marriage involves necessarily or essentially persons of the opposite sex or gender. It does have to do with the procreative orientation of marriage - not procreation, you might say, as such, and my position and my argument in favor of this view is not the position that Andrew takes on in his remarks. I mean, the position that I think he's got in view may be one that's occupied or put forth by some people in defense of traditional marriage, but it really is a ridiculous position, as if the idea were unless there are children, you're not married, or unless there will be for sure children, you can't get married. I think a better way of getting at how marriage is related to children is by using a different term: "procreative orientation" or its reproductive meaning. But it's not procreation, and it surely is the case, as he quite readily points out, that not everybody who gets married civilly has children or is even able to have children.
That's just a sort of tease to give you a feel that the argument about procreation is at least somewhat more subtle than perhaps Andrew so far has recognized.
MR. DIONNE: Andrew, do you want to take that up, because that is at the heart of your argument, in that there are so many married relationships that are closed to children from the very beginning: marriage between two 65-year-olds, to pick an example you've picked.
MR. SULLIVAN: Yeah, when you're down to saying that it's not about procreation, it's about procreative orientation, you're coming very close to a complete tautology. You're coming close to saying it's not about being procreative, it's about being heterosexual, even if that doesn't mean being procreative, in which case it's just a circular argument; it's not taking us anywhere.
In this country right now you might think there are some very fundamental elements of marriage. I think that it's important for us now to distinguish very clearly between civil marriage and religious marriage. I think there has to be a very clear distinction between the two. I think Gerard may be interested to know that I think it's a completely different argument, for example, within the Catholic tradition as to whether the sacrament of marriage, as it's understood, could be applied to same-sex couples. I actually am a skeptic about that, given the Catholic theological underpinnings. However, I also think the fact the Catholic Church marries theologically sterile people and infertile people and post-menopausal people shows that even within the strictest theological construction about marriage and procreation, the Church makes huge exceptions for people on humane grounds. It's just that their humanness does not extend to homosexuality.
But, no, civil marriage, as we now have it, can be entered into any number of times. I mean, literally if you get a divorce in a day, you could have a marriage every day of your life, and you would not only be able to do that, you'd be able to do that as a constitutional right. The Supreme Court's guarantee of the right to marry extends to prisoners on death row; it extends to the mentally insane; it extends to foreigners who have no other citizen's rights; it extends to deadbeat fathers who have not made payments to their previous children; it extends to Brittany Spears, who married for 51 hours, but it does not extend to two women who have lived together for 55 years.
Now, at some point in our culture, most people, given the fact that more and more people know gay people and more and more people know exactly who we are, that discrepancy of status between the extraordinarily loose standards required for civil marriage, on one hand, and the absolute bar for another becomes such a huge gulf in our culture that it's obviously deeply unfair. And at some point you have to acknowledge that.
And what I would like to ask Mr. Bradley is, if you don't agree with our right as citizens to enjoy the same very fundamental right that others do, what would you have us do? How would you like gay people to live their lives? Are we supposed to not have relationships? Are we supposed to have no social support for those relationships? The religious right, on the one hand, wants to condemn gay people from being, "promiscuous;" but, on the other hand, they want to condemn us for getting married. What are we supposed to do? Where would you like us to go? The answer is, We'd like you to disappear off the face of the earth.
Until you have a constructive alternative, it seems to me that you're going to lose this argument, and I'd like to hear from you a constructive alternative.
MR. BRADLEY: Well, I may lose the argument, at least in front of this group anyway, but I don't think the question or the demand is really a fair one, right? I mean, I can have an account of what marriage is, even in law as well as in moral reality, and that could be true. And I think it's fair for me to propose it for acceptance or rejection without having an exhaustive account about what the lives of gay people ought to look like. I don't have such an account, not because there isn't one that in a sense could be had, but that's not really what I have to offer this group. That is to say, if not marriage, well, what is there -
MR. SULLIVAN: But you -
MR. BRADLEY: It's a plausible question for some people in some fora, but I don't think it's fair to say that - and it's fallacious to think that somehow your argument is advanced if I don't give somehow a satisfying account of what a gay life would be or could be apart from marriage. I just think it's a distraction from the question at hand, and it doesn't advance your argument logically.
MR. SULLIVAN: It's not a distraction in the sense that you're proposing an amendment in the very Constitution of the United States, have helped write such an amendment, that would bar gay people, not only from marriage but from civil unions and domestic partnerships, from any state-recognized form of protection for their love and friendship. It seems to me that as a Catholic, you also have an obligation to think about the well-being of minorities and of the ostracized and the marginalized. I know that's a radical idea for Christianity, to think about the marginalized and the people who are ostracized from their society, to think that you might actually have a policy towards them as a Catholic person, as someone representing the Catholic tradition.
You speak as if gay human beings don't really exist or that you don't need to have a proposal for them when you are simultaneously proposing to strip them of any basic civil rights for their relationships. That seems to me to speak volumes about where this argument is coming from, whether it's coming from a desire for the common good or the common good only of people of whom you approve.
MR. BRADLEY: I thought it was you - maybe it was me - who said we shouldn't address this question on the basis of "As-a," so I don't think it furthers the argument either to say "as a Catholic" I have some particular obligation to respond to whatever arguments you happen to offer, whatever challenges you happen to lay down.
As to the Federal Marriage Amendment, you're simply mistaken. I mean, I can't claim the author's authority since it was a joint project, but I indeed was one of the radical natural-law "jurisprudes" who drafted the Federal Marriage Amendment, and it surely does not prohibit states from recognizing domestic partnerships or what have you. It surely does say that same-sex marriage is not to be legally recognized. It does not suggest, say, or imply even, that churches or informal groupings, communities, may proceed with whatever rituals or legitimation of same-sex relationships those churches choose to have, but it does say -
MR. SULLIVAN: Well, you couldn't do that under the First Amendment.
MR. BRADLEY: Well, whether you could -
MR. SULLIVAN: Unless you would like to abolish that. But as a matter of civil law, let me read you the amendment that you wrote. "Marriage in the United States shall consist only of the union of man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidence thereof" - or the legal incidence thereof - "be conferred upon any union other than the union of a man and a woman."
That is absolutely clear: not only no marriage, but nothing that could be included in the rights of marriage: hospital visits, even the small - In Virginia right now, your allies are just passing a bill that would make it illegal even for there to be private contracts between two human beings to secure their own property.
MR. BRADLEY: I don't have any allies in Virginia. I'm from Brooklyn. But you're wrong about the amendment.
MR. SULLIVAN: Sorry -
MR. BRADLEY: You say it's clear, but you're quite mistaken. That is to say -
MR. SULLIVAN: Well, I just read it out loud, and everybody here can make up their minds of how clear that was. It seems clear as day to me.
MR. BRADLEY: Well, that's not really fair either, right, to say that here's a phrase which you declare it to have one inevitable meaning, and then let's not talk about anything else. It's not really fair, right?
MR. SULLIVAN: What is the meaning? What does it say?
MR. BRADLEY: It means that a state legislature is entirely authorized to do what many have done; that is to say, take a look at something, whether it's hospital visitation rights, or pension benefits, or tax benefits, or rights of property that previously have been reserved to married couples. You take a look at that situation, you recognize that there's an enormous number of households with unmarried people in them. Some of those households are populated by homosexuals and lesbians, but probably most are not, and you decide that no longer will it be an incident of marriage to sign a lease together or to execute power of attorney, or to be listed as a beneficiary on an insurance policy, or anything else.
The legislature has to decide if something which hitherto has been an incident of marriage isn't any longer, because we're extending it to any large number of people.
MR. SULLIVAN: So if you've got a civil marriage - a traditional civil marriage, you will no longer have those rights under civil marriage?
MR. BRADLEY: Well, insofar as the legislature takes something which had been an incident of marriage and extends it to people who are not married, well, then, yes, by definition it's no longer an incident of marriage, at least in that jurisdiction.
MR. SULLIVAN: So any future married couple - heterosexual married couple -would lose their rights to hospital visitation, for example, under your amendment.
MR. BRADLEY: No, that's a mistake, right? I mean, married couples would enjoy the right of hospital visitation henceforth, but not precisely as married because hospital visitation or tax benefits or whatever the issue happens to be, would be extended to anyone who is designated by an individual or anybody in their household or a best friend. You would enjoy these opportunities or privileges not as married people, just as the case now. Anybody can sign a lease or take out a bank account together or sign any number of legal documents.
MR. SULLIVAN: Not in Virginia, shortly.
MR. DIONNE: Let me just step in here. How many people want to join this discussion? Can I just see a show of hands? Okay, we're going to have to move this quickly.
I want to put a question in the back of your head, Professor Bradley, as the crowd asks a question. In your very interesting presentation, what I heard - and you can correct me if I'm wrong - is, at the heart of it, a critique not only of the gay rights movement but actually the turn in attitudes toward marriage and sexuality that occurred in the 1960s. It would therefore seem to me that the logic of your argument is not only to oppose gay marriage; it's probably also to oppose and repeal all laws permitting divorce. In other words, there is a whole series of implications of that argument that extend well beyond the issue of gay marriage. But now I'll be unfair - let the audience come in - but I'll be fair and give you a chance to think about that.
If we could have a number of brief questions and comments I'd like to bring them together because we are supposed to get out of here on time. We've got about 15 minutes. Sir?
MANUEL LOPEZ: My name is Manuel Lopez. I think the question is much more than one of extending rights to a new group of people - marriage rights - but the question of whether we're changing the meaning of marriage by taking such a radical step. I'm not a believer, so I'm not asking this from a religious perspective, and I'm certainly not anti-gay because I am gay. But nonetheless it seems like a very bad idea to me - gay marriage - from the point of the view of the effect on future generations. Once you disconnect marriage, not just from procreation, but from the natural sexual difference that's connected to procreation, you're disconnecting marriage, it seems to me, from some larger world than the people involved. Marriage starts to seem less like something beyond the will of the people involved and starts to seem simply like a commitment or act of the will. It starts to lose that extra dimension, the dimension of awe, the dimension of submitting to something higher, the dimension of something transhuman. And it seems to me once that happens, it'll have all these detrimental effects on people. People will start to take marriage less seriously, will not be willing to make the same level of sacrifice that they would be otherwise. In other words, it would start to have some of the same effects as no-fault divorces had, but it would, I think, be much more damaging.
MR. DIONNE: Thank you. I just want to try to get as many people in as I can. Over here, sir. Or the lady here, and then pass it over to the gentleman, please. Yes?
MARA ZONDERMAN: My name is Mara Zonderman, and I would just ask both of our panelists what you would think of the proposition of doing, for example, as they do in France, which is completely separating the civil marriage from the religious marriage and saying anybody can get married civilly, and then letting any religious group decide who can get married under that religion clause for themselves?
MR. DIONNE: Thank you. And sir?
DENNIS TEDDY: Yeah, this is a question for Mr. Sullivan. It seems to me that the argument you make rests on a certain assumption. I'm sure that you're convinced of this, of the assumption, and many, many people are. The assumption is that there is such a thing as a gay person, or you said at one point, "God made me this way." So in other words, the assumption rests on this supposition that sexual orientation is a given, it's genetic, it's environmentally determined, whatever, but that it's beyond the ability of the person to either deal with it, rectify it, whatever.
Just supposing for a minute the traditional view, which I believe applied up until maybe a generation ago, that sexual behavior was something that an individual could in fact deal with or could rectify. In other words, there was not simply a given. Orientation was not simply a given. How would that change the argument, the arguments that you've been making all the while?
MR. DIONNE: Thank you. That's an interesting question. Wendy Kaminer, in the back? To Wendy, and then the gentleman next to you, and then we'll come back to our panelists.
WENDY KAMINER: Wendy Kaminer. I wanted to take issue with what I think was Professor Bradley's suggestion that religious beliefs are not driving this debate. If I can indulge in an "as-a" statement, as a resident of Massachusetts who has just been through this very heated debate, let me tell you that religion and the Catholic Church played a huge role in this debate. And I have yet to hear an argument against gay marriage that is not based either on religious beliefs or some visceral reaction to the idea of gay sex, though as one of our legislator's said, "If you don't like gay sex, you should really be in favor of gay marriage, because everybody knows there's no sex after marriage." (Laughter.)
But you know, I do think that what is driving this is - well, it reminds me of what Bertrand Russell supposedly said. I actually think he did say it, which is that "I can't believe the only thing wrong with murder is the fact that I don't like it." And I think I hear you saying the opposite of that, which is that the only thing wrong with gay marriage is the fact that I don't like it. You seem to be offering that as a good enough reason, and I don't think it is. I think you have to offer more than that when you're debating the law and public policy and constitutional rights, and I think you can't just offer a sectarian notion, so please offer us something else.
MR. DIONNE: Thank you. Why don't we take that now and go to the gentlemen? I'll bring another round in before we close. Do you want to start, Professor Bradley?
MR. BRADLEY: Sure. Well, Wendy, I have to apologize. I think actually you were at a forum in Boston a few months ago when I did a talk like this, so I really am sorry because apparently neither that time in Boston in December - I think it was December - or here have I given you any reasons at all. I certainly hope I've said more than I simply don't like it. I apologize for taking as much time as I've had to take today to offer just that.
I have written a fair amount about this topic, and I'd be happy to send you journalistic and scholarly articles which really do develop this point. But I can tell you just one example, something I co-authored with Robert George of Princeton in Georgetown Law Journal in '97 about marriage and liberal imagination and so-called conservative convictions. That's just one location of what I think is a philosophical argument. Certainly it's offered as a philosophical argument against same-sex marriage. Again, the Georgetown Law Journal of '96-'97.
But a couple of other points in response to the questions, all of which I think are good questions. The first question of the gentleman in the back I think makes a point that I'm trying to make and perhaps I did make, which is that marriage is a larger-than-legal reality. I refer to it as a moral reality or to the moral truth about marriage. I think that is the case, but you make a complementary, a supplementary point, which is, what would happen to marriage if whatever the exact contours of it happen to be, whether it's permanent, not so permanent, or whether it's same-sex or not. But if we come to believe that marriage really is just a creature of civil law, and in that sense manipulable at will by majorities, something very, very important would be lost. I think that's quite right. I do think that is a point that doesn't clinch an argument against or in favor of same-sex marriage, but it obviously is an argument about what's behind the civil law. And I guess I am appealing to something behind or in front or behind or beneath the civil law.
Now I should say I completely agree that the civil law should be separated - Wendy's objections notwithstanding to what I've been saying - from religious conviction. I don't think I'm talking about religious conviction. I happen to be a religious person, and I have convictions about same-sex marriage, but of course it's fallacious to think that therefore what I say about marriage is a matter of religious conviction. I mean, I certainly do assert and mean to maintain that there's a morality or a moral truth or a moral reality or truth about marriage, which is entertained by many religious people, denied by other religious people, and held by people with no religious conviction at all. It's funny. I'm talking about morality and civil law, not religion and civil law.
And finally, the point Dennis Teddy made the point about "the gay person." I don't know if it's a generation or so ago that something changed, but certainly for a long time, maybe up until the late 19th century, there wasn't a notion out there of a personality or an identity that was tied to homosexual behavior. I think there probably is an almost 20th-century or late 19th-century creation. Obviously history knew and biblical writers knew about same-sex sexual acts, but I do think it's the case that the notion that there's a person whose identity is somehow established and sort of tied up in such acts that is a relatively speaking a recent thing.
MR. DIONNE: Just quickly, I'm going to ask you an almost yes or no question. Am I correct that the same logic you apply to gay marriage would in fact lead to the abolition of or a very substantial tightening of laws on divorces, because both attitudes are rooted in the same theory of what marriage is and what is there to be protected?
MR. BRADLEY: No, I don't think it's a matter of logic at all. Now, it happens to be the case, I think, that no-fault divorce laws have been bad for marriage. And I certainly would favor, for what it's worth, cutting back on no-fault divorce laws for some of the reasons that I've articulated about same-sex marriage and the law. That is to say, I do think marriage is, as people say, for better or worse, until death do them part. And I think that no-fault divorce has made that reality about marriage sort of almost unavailable as a cultural matter to many, many, many young people. There are people growing up today, a generation into the no-fault divorce regime, who can scarcely see that marriage is permanent. Rather, they see marriage as lasting for as long as it seems to be worth holding onto.
MR. DIONNE: Is - never mind. I was going to say I see something actually quite different when I go to baseball fields on Sundays or soccer fields on Mondays, but that's a side conversation. I think marriage is actually, even though I have some sympathy for your view on no-fault divorce, I think it's more durable than that.
But Andrew, on these - on any of these questions, a word, response?
MR. SULLIVAN: Yeah. To Manuel's question about relating marriage to something beyond, to something transhuman, I couldn't agree more, but I don't see how that excludes two gay people. One of the most moving weddings I went to was between two gay men, one of whom was a good friend of mine. He was 32. He was marrying someone he'd been with for five years, and everybody knew he was going to die within six months or thereabouts. In fact, he died six weeks later. And they married, and they did so to affirm the dignity of their love, even though it was going to be extinguished, and that is beyond them. It is a statement that their love will be eternal.
I'm tired of having religion always invoked on the side of those who oppose the dignity and moral goodness of homosexuality. I don't want to just believe that homosexuality is defensible. I think it is a moral good. I think that it can lead to a life of immense virtue, and I think that the union of two people of the same gender can be an absolutely ennobling and beautiful and mighty thing, just as I also believe that the mystery and beauty of the heterosexual union and its extraordinarily mysterious ability to create new human life is also an astonishing mystery of God's creation. I do not think God asks us to choose between one part of his creation and another. I think he asks us to find a way to bring them all together to point towards his everlasting love for all of us.
And I think that the ability of two gay people, especially people who have been so historically marginalized and beaten down and trashed and subjected to enormous amounts of pain - And it distresses me that the Catholic theologians never even nod to that experience, never even give a mention to the pain that these human beings have gone through for so many centuries. It seems to me to be an abrogation of their Catholic calling to compassion and inclusion.
Secondly, I think it's also important to address your question. Orientation, sexual orientation, is fixed. This we know. Even those who argue it can be cured - and I've studied them, the most extreme versions of those who think it can be cured - nevertheless can see that it's extremely hard, the amount of conditioning it would take to try and get a gay person to live a superficially heterosexual existence. It is an enormous struggle 20, 30, 40 years of intense psychotherapy, and it often fails and doesn't actually succeed in ridding that person of their same-sex love. It merely allows them to function as a heterosexual. We know that's happened for centuries, and the misery that it's caused wives and husbands who find out later that they've been married to someone who's gay. It's been terrible. I don't think it's any more debatable, as Freud pointed out, that heterosexuality should be changed. I think that the humane response is to accept people for who they are and not to call them liars when they're testifying to their own deepest and most difficult human experiences.
Finally, I think it's also important for us to understand Professor Bradley's position. Professor Bradley's position is not just that marriage means forever. It's that it also means that contraception can never be used, and in fact, that the state has a role, as his co-author Robert George has mentioned, in preventing and making illegal the use of contraceptive devices. The notion that the far right that we're talking about here, whether it be within the evangelical movement or within the Catholic Church, is simply interested in gay marriage is just not true. This is the tip of the iceberg. The agenda is to attack human sexual autonomy in every possible way. That's why Robby George, under oath in Colorado, said that he favored state laws that would ban contraception. That's what this is all really about, and gay people are just the first and easiest and smallest target in this particular endeavor.
MR. DIONNE: I want to give Professor Bradley a chance. There are two people I saw, and then we've got to close it down in five minutes. Apparently we have to get out of this room. Sir, you were right there, and then this lady in the front.
RICK ROSENTHAL: Yes. My name is Rick Rosenthal. I'd like to pick up on something that Andrew just said. Last year, Senator Santorum of Pennsylvania spoke as if he really wanted not just to overturn Roe but to overturn Griswold. This is consistent with what Professor George was just cited as having testified. Jonathan Rauch has talked about how the opponents of same-sex marriage are so determined to block same-sex marriage that they're prepared to do things that will undermine marriage. He talks about what he calls the "ABM pact" for Anything But Marriage, and that's what these "marriage lite" type laws are.
In fact, the rather Jesuitical reason that Professor Bradley just used about legal incidents, which is at least novel, I hadn't heard that argument before, strikes me as an example of that, that we will rethink how we describe marriage in whatever way we need to in order to block gays from entering into it. And I think that one has to look at this in a practical way. Gays do exist, we are going to exist, and something has to be done with us, and we are going to demand our equal rights.
About a million people three days ago stood on the Mall making it clear they are not going to sit idly by for overturning Roe, much less Griswold. And the only way you can reintegrate forcibly the procreative function into marriage and enforce that is to do all of these things that will take away the rights of women, and that is not going to happen.
Again, gays exist, and our families also have children, and those children are entitled to just the same legal protections as other children. What are you going to do about that?
MR. DIONNE: Thank you very much. Ma'am? I'm sorry about other folks. We've just got to do this again. This has been an excellent discussion. Please?
MANDY MORGAN: Hi, I'm Mandy Morgan with Religion News Service, and I have two questions. There's a quote from Gary Bauer, a former Republican presidential candidate, who said, "Every culture in the world, every civilization in the world for over 3,000 years, has defined marriage as the union of one man and one woman. The constitutional amendment merely states that again." What do you say to people who are looking at their original religious scriptures - if they're Buddhist, if they're Christian, whatever they are around the world - and they simply forbid this? And maybe they're even homosexual, but they're looking at their original scriptures. I understand that modern-day religious leaders are now saying, no, it's okay, but what do you think of those people?
My second question is about your making a parallel between racism and homophobia, and if that's - that's actually for both of you - if that's a legitimate parallel. Is sexual identity and skin color - are those comparable things?
MR. DIONNE: Thank you. And as a moderator, I'll throw one last one on the table, which you're free to ignore. Again, it's a matched pair. Andrew, you have been critical in the past of judicial activism. I'm curious if you see the use of the courts in this area as legitimate to expand the rights of gay people. Professor Bradley, you have a sympathy for subsidiary and states' rights. Why should you be for a federal constitutional amendment? Why not let this issue be settled state by state, as many conservatives would like many issues settled?
But I think this lady's questions are the most interesting, and the gentleman's comment obviously was very powerful, so put me last.
MR. BRADLEY: You didn't have to invite. We would have done so anyway, E.J.
I really am finally provoked, I think even insulted. I appreciate making novel arguments, but this gentleman accused me of being Jesuitical. Now there I really do draw the line. (Laughter.) Natural law, radical jurisprude may be, but not a Jesuit for sure or Jesuitical. But on the whole, I guess, that's responsive to parts of the last several questions. And I think it reveals a kind of not desperation but a lack of seriousness as a conversation partner, to say that somehow I'm required to account for opposition to Roe, Griswold, or in Andrew's case, somehow because Robby George is said to have said in Colorado some years ago that he favors laws making contraceptives illegal, which I don't think he's ever said and he certainly doesn't think that, I think that's really not germane to this argument.
I understand the idea that, as someone put it, it's a camel's nose under the tent. Not in those words, but it's the concept, right? If Bradley gets his way about same-sex marriage, the next thing you know, you'll find that condoms are stripped from drug stores, and there we go. Now there are about - I stopped counting - there are probably about 30 things wrong with that way of viewing the arguments I make, but I won't go into them, except to say that it really seems to me unfair to demand that, just as it would be unfair of me to demand of Andrew Sullivan or of some of these questioners, well, if you're right, it's a straight shot to the bathhouses. Now I don't even think that's true, but frankly given the level of seriousness that's shown here as conversation partners with me, that would be on a par.
MR. DIONNE: Andrew?
MR. SULLIVAN: That's absurd. The argument that we're using is simply the consistency of the natural law argument about procreation. The only argument the Catholic Church makes about homosexuality, the only one, is not that it's homophobic but that it violates the norms of procreation. It is completely fair to say, Do you also take that argument, which is the critical argument against gay marriage, seriously in other areas, namely contraception, no-fault divorce, et cetera, et cetera, the marriage of the infertile, to test whether this is a principle or whether you're making an exception for homosexuality, which raises the question of whether there is animus rather than principle. That seems to me the completely legitimate thing.
And of course the only person who's saying that gay people belong in the bathhouses are those people who refuse to allow gay people to get married. You can't have it both ways. In some ways I think those in the religious right do want gay people in bathhouses. They certainly don't want gay people to be in loving, serious relationships.
And you still haven't said whether you would support that or not, because you can't, because the answer is you don't. You don't want us to have relationships. You don't want us to have equal citizenship. You want us to go back to the '50s. We won't, we can't, and until you recognize that, I think from the point of view of your own arguments, you're going to make stronger arguments when you provide something constructive, a constructive alternative to gay couples who cannot currently get married.
As for the racism/sexual orientation argument, I think they're obviously very different and complicated experiences, just as the experience of being discriminated against as a Jew is different than the experience of being discriminated against as an African-American. And so I think to conflate all the same human experiences is foolish because they're very subtle. For example, obviously gay people can hide; black people can't, in general. And so the kind of hostility directed towards them is very different.
However, insofar as it is absolutely clear to me - not only clear to me, it's clearer to me than anything, because I know, because I know my life, I've lived it, and I've observed countless others that this is not something that is a chosen characteristic. It is an absolutely immutable form of human experience, and the Catholic Church itself has said it is innate in its official doctrines, inborn. You're shaking your head, but you're wrong. It says in a 1976 document, you will find the word "innate" for many homosexuals.
So yes, we should be protected as other minorities under civil rights statutes, absolutely. We should be protected under the 14th Amendment. The denial of the right to marry is unconstitutional in this country. If it were not unconstitutional, they wouldn't be trying to amend the Constitution to prevent it taking place, because they know that's the only way they can stop it because the arguments for it are so overwhelming.
And this is where the traditional activism point comes in, which I will address. I am not a traditional activist, but look, if your state constitution says very clearly, as it does in Massachusetts, there is an equal protection clause and you cannot discriminate against one group or against another except for extremely good reason, and that clause is very strong. And you get plaintiffs come to a state authority, the Board of Health, and say, We want to get married; and they say, No, you can't; and they say, Why; and they say, Because you're gay. And you take that to the court, and the court says, You're now discriminating against this group of people, which is protected under Massachusetts law as a protected class. And you say, What's your reason for this exclusion? And they say, Procreation - which is all they said. And the justices come back and say, But you allow all these other people to get married who don't procreate, and, in fact, it's not even a condition of the marriage license. And the people say, Well, yes. And they say, End of case.
There's not even an argument here. That's not judicial activism. That's the obvious. In fact, there will be no way around a court. That's why every court, from Alaska, which is a conservative court, from Hawaii through Vermont to Massachusetts, there is no argument legally and civilly against this. That's why it's falling. This is not judicial activism. Anybody would think, to listen to some people, the courts should have no role whatsoever in this country. If it weren't for courts, where would minorities be? What is the role of a court unless it is to protect a minority of 2 percent from the majority will of 98 percent? I mean, why do we have them if not for that? If it weren't for the courts, we would still have segregated schooling, we would still have bans on interracial marriages, and George Bush would not be president of the United States. (Laughter.)
MR. DIONNE: And there's a point to close on. If I may use a religious word, I pray we can keep this discussion and dialogue going. I'm very, very grateful to our participants. I apologize for those who couldn't get in the discussion. I have my own list of 10 questions that I had to leave out. Please join us again. Thank you very, very much, and thanks all for coming.