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Lately, in between studying for law school exams and taking law school exams and doing the law school journal writing competition, I’ve been streaming superhero movies thinking a some about morality, and what it means, and its place in the law. It’s well known that the legal field can be a fraught place for morality, not least because the legal profession consists more or less entirely of either trying to help one person or group forcibly take things  (generally money, but also sometimes freedom, property, even life) from another, or of trying to stop that kind of taking from happening. Law is also a subject area where a lot of complicated elements get mashed together–money, power, religion, national identity, etc.–and so it can be legitimately problematic to figure out what is right and what is wrong, sometimes (or even what is true/false). Law (like literary criticism) dwells most comfortably within cracks and interstices and gray areas and uncertanties. Part of being a lawyer is finding those cracks and, sometimes, when they are absent, taking a chisel and opening some up. It’s no wonder that lawyers in general don’t have the happiest of reputations.

Plus, given the adversarial nature of the law, and the politically/emotionally/intellectually polarized subjects that come together in a lot of legal debates, it’s especially important to be sensitive to other opinions, and to give a fair hearing to all sides.

These concerns are of course less essential on a blog, where I’m free to anonymously rant or lecture or speculate about whatever I want. Those who come here looking for a balanced weighing of the issues will be disappointed.

Nonetheless, I have for the main part avoided politically charged subjects here, until my recent post on the gay marriage debate. That post, to my own surprise, generated a few comments and a little bit of confusion among readers, and so I thought it might be useful to address what some have rightly pointed out was probably the central problem in a somewhat incomplete argument: namely, that when I say that homosexuality is not immoral (or that it’s even possible for “God” to be “immoral”), I used a sortof unconventional definition of ‘morality,’ and by doing so, I skirted around what is probably the central issue in the gay marriage debate. I’m not going to adequately address that debate now–you have a whole internet to go to for that kind of thing–but I will try to explain what on earth I was talking about in my earlier post.

The problem is that ‘morality,’ like ‘love’ or ‘duty’, is a broad term that can sensibly encompass a range of pretty discrete meanings. The type of morality I was considering could maybe be characterized as a sort of loose approximation of Kant‘s categorical imperative (or, for you laymen, something like the golden rule of do unto others etc.). In doing so, I think I was trying to state a type of morality which is both universally applicable and appropriate for a legal context: a moral system that you could write into law. This is related to John Rawls’ veil of ignorance, and it’s a very abstract and pragmatic idea of morality.

The point being that this idea of morality (call it “liberal morality”) is in fact pretty fundamentally distinct from the way that most people talk and think about morals. I would suggest that most of us come to conclusions about “right” and “wrong” not by abstract utilitarian calculations but by reference to identity and tradition: what is right and wrong depends upon what group you belong to, what your history is, what language you speak, who your parents are, and what texts you hold sacred. I’ll call this “conservative morality,”♦ and it’s a much richer and more personal idea of morality–one that is bound up with identity and community and family–and so its no wonder that many conservatives tend to find liberal morality pale and unsatisfying and relativistic and even dangerous. The subjects that most concern liberal morality–whether something is harmful (ie. causes a loss of wealth, or an increase in pain)–are secondary in conservative moralities, which can assign even greater stigma to certain non-harmful activities.

While the term is politically loaded, it might be useful to say that conservative morality as I’ve formulated it demands a ‘politics of exclusion’: it’s based on maintaining a cohesive group. I’m talking not just about the moral code of religious organizations (which may restrict homosexuality, or women showing their faces in public, or eating non-kosher foods), but also the type of moral code you see in mafia movies (family first, don’t be a snitch), or even just in individual families (no feet on the table?).  It’s important to remember that exclusion is central to identity; to the extent that being ‘American’ means anything, it’s because America is different from other places (including, for better or worse, socialist European nations). Conservative morality is directly related to who we are as a country, and while it lends itself to jingoisim and us-vs-them absolutism and all the kinds of scary extremisms that accompany real ideological conviction, it is also connected with positive things like family and tradition that are obviously and perhaps tragically on decline in the modern world. 

This is, of course, a pretty facile dichotomy, but I think it might still be a useful way of looking at a lot of contemporary politics. For instance, it helps explain why so many of the arguments against gay marriage in the recent supreme court cases were so pallid and embarrassing, like for example the argument that the main purpose behind the institution of marriage is to produce children, which those poor lawyers for the defense had to deliver to the supreme court while keeping a straight face. It’s not that there are no good arguments for banning gay marriage; it’s that the actual reason for such a ban–that the majority of Americans find homosexuality to be morally repugnant (and if they feel otherwise, they should show it with their votes)–has already been declared constitutionally illegitimate in the case of Lawrence v. Texas. There the court held that this type of moral sentiment, unjustified by evidence of material harm caused by the objectionable class, is for legal purposes nothing more than “irrational prejudice.” A critic might point out, however, that the difference between “irrational prejudice” and “traditional moral values” seems to depend more on where you stand than on any objective evidence. Justice Scalia, who dissented in Lawrence, has argued that in a democracy the majority has the constitutional right to declare what kinds of behavior are right and wrong, so long as their will doesn’t contradict explicit confines of the constitution itself. This is not a weak argument; it was in fact the court’s position not that long ago, in Bowers v. Hardwick. 

On the other hand, I think that most of us, when really questioned, would say that the court should strike down laws that discriminate against a certain class of people without objective reason, regardless of the traditional moral values that might underlie that discrimination. Liberal morality doesn’t precisely discount conservative morality, but it does relegate it to the private sphere. The establishment clause is one way our constitution upholds this separation; the fourteenth amendment (as the Court has recently interpreted it) is another. There is, however, certainly room for respectful disagreement on the subject.

*My idea of politics is also very influenced by Richard Rorty, who basically said that since philosophy is often sortof a crock, and we can’t actually really have any absolute knowledge about abstract concepts like “good” or “evil,” we should instead focus our efforts and our laws on trying to cause as little harm to our fellow man as possible: to ameliorate suffering, and to avoid cruelty. That seems like a pretty sound policy to me.

♦I didn’t come up with this stuff all by myself. As with most of my blog, what you read has already been said better elsewhere. However, I couldn’t find the really relevant articles to link you to and I don’t remember what they are, so I’m just going to say that I know some of this is based on the work of Stanley Fish (as usual), and that the characterization of social conservatism in general probably owes a good bit to Ross Douthat at the New York Times, whom I read religiously. I also owe a lot to my favorite legal theorist, Robert Cover, whose book Nomos and Narrative is all about the way that public law interacts with the private legal systems of the smaller groups that it governs. Highly recommended.

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As a law student in these interesting times, it seems somehow inappropriate for me not to offer some kind of comment about the important matter currently before the Court. Yesterday, oral argument was heard as to whether California’s Proposition 8 should stand; today, we listened with somewhat greater optimism to discussion of the even more offensive DOMA. I have little to add that has not been said repeatedly, and more eloquently, by others. There is no tenable non-religious foundation upon which these laws can can be upheld. The arguments from science (‘it’s good for families,’ or ‘marriage is for children’) are laughably bad, which is why the only way the court will be able to uphold either law is to dismiss the case for lack of standing–if they engage this issue on the merits, the defense has already lost*. And although the establishment clause is subject to nuance, I think most would agree that separation of church and state is a fundamental principle of our government, and should be maintained.**

I do feel, however, that I have a certain understanding of the ‘bigots’ and ‘hypocrites’ who make up the religious right, and maybe a different and more sympathetic perspective on their community. I was raised a Southern Baptist, and if I have since abandoned that religion, I retain a great deal of respect for the sort of all-consuming faith that animates many church members. I am convinced that if you really get to know this subset of the electorate (and it is not a small contingent), you’ll see that for them the separation of church and state is considered neither desirable nor even really to be a coherent idea. There is a sort of Platonic ideal of abstraction in the concept of a government free from religion, and the religious right (like the Muslim fundamentalists in certain countries of the Middle East) has noticed, not inaccurately, that this kind of abstraction requires a neutered form of religion. This is easier to see in religions, like Islam, that have historically been religions of laws (and where there is no separation between ‘king’ and ‘pope’), but there are few religions that do not command acts from their followers, in addition to thoughts. And perhaps almost as few in which those acts do not come into conflict with the state.

For this church, then, as for others, the nation is a community defined by shared ideas and priorities, and if you believe–and many people do–that those priorities are dictated by God himself, then of course you aren’t likely to be dissuaded by any mere ‘parchment barriers’. Certain fictions, like the recurring claim that we are a “Christian nation,” are the result of this belief, but the belief itself is deeper and more fundamental. The bonds of community–especially religious community–are stronger than many in the modern world would like to believe.

Of course, plenty of liberals and even conservatives would hold (and again, other voices have said it better) that the far-right’s interpretation of scripture is untenable on its own terms. They are obviously correct. If the old testament forbids homosexuality, well, most christians have long since abandoned that testament (and a thousand undergraduate facebook profiles can show you what other absurdities the old testament God chose to abhor, and what abhorrences–including slavery–he chose to allow). The bible belt seems to forget the new covenant upon which their church is founded, and in so doing they betray their fundamental principles (or, at least, their most fundamental principle: John 13:34). But even that is beyond the scope of this blog post.

Instead, I simply want to reproach the ‘Godly’ for their lack of humility, and for failing to read their Kierkegaard. As a mental exercise, let’s go ahead and concede that homosexuality is an abomination in the sight of the Lord. Concede that He has forbidden it, and that His scriptures (passed directly from God to Man) plainly denounce it and mandate punishment for the crime (it is, I admit, a difficult exercise, but empathy is the most underrated of virtues, and in politics the most essential).

Concede all of this, and what then? You have the Lord your God, commanding us to eschew our fellow man, calling “unclean” our own sisters, brothers, neighbors (and never forget that God has commanded you to love these neighbors as yourself). Lets abandon the pseudo-science for a moment. The church has never been a scientific institution, and the Republican party abandoned science over a decade ago. Homosexuality is not a choice, and if it were a choice it would be one that affirmed life and love and did no harm to anybody. It is not malum in se.

The religious right has avoided the difficulty of this position by calling this a matter of morality. It is not. There is nothing in human morality to impeach homosexuality any more than heterosexuality. If homosexuality is wrong, it is wrong only in the sight of God. I think certain sects of Christianity have ignored the many times that God has commanded them to behave immorally, even evilly. This is disingenuous, and it cheapens their faith. Kierkegaard demonstrated in Fear and Trembling that faith is only meaningful when it requires a leap beyond the human creations of reason and morality. When God commands Abraham to murder his own son Isaac, there is no way in which this is a moral choice. It is a choice no decent person could condone, or should. I maintain: conservative Christianity will not be entitled to our respect until it acknowledges that it is sacrificing its own sons and daughters, blindly, in service of its God. Flawed interpretations of scripture are tragic, but forgivable; interpretation is difficult, and the influence of culture is strong. But intellectual dishonesty is deplorable, and when it encroaches upon our government and our civil rights, it should not be permitted. The church (or this church) is not being good, or righteous, or moral. It is attempting to obey a God that (it claims) demands evil acts. And it is using the ballots and the courts to turn our nation’s laws to the same evil ends.

If the right wing can acknowledge that, and continue to vote and pontificate as it has, then thousands of homosexual U.S. citizens will be no better off. But at least we’ll be having an honest conversation.

*Well, there is one argument under which the court might find these laws constitutional: the peculiar dogma of originalism espoused by Justices Scalia and especially Thomas has been used to protect our courts from rational decision-making in the past, and may be again. The problems with that interpretive technique, however, will merit a different blog post.

**I believe that a truly rigorous application of this principle would require the federal and state governments to forego the marriage business entirely–but if that is not to be, they should at least try to avoid willful and egregious discrimination against their citizens. Every schoolchild knows that we are all of us created equal.

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