The very elastic “right” of the very secular left

“How Gay Marriage Won”, declares the March 28th edition of TIME, illustrated with black-and-white photos of homosexual kisses. The essay is, to put it simply, a work of rather raw propoganda, filled with a near giddiness that fits well with its failure to address many, if any, of the serious issues at hand. The author, David von Drehle, doesn’t bother to consider that those he describes as “the folks against change” might actually have a few points on their side when it comes to upholding marriage to be, well, marriage (one man, one woman, etc.). No, “gay marriage” is simply the breaking crest of the fresh and exhilarating wave of history that is rushing over the dry planes of hatred, narrowmindedness, and traditional biases, bringing forth an oasis crowned by rainbows and covered in flowers suitable for gay weddings everywhere:

Like a dam that springs a little leak that turns into a trickle and then bursts into a flood, the wall of public opinion is crumbling. That’s not to say we’ve reached the end of shunning, homophobia or anti-gay violence. It does, however, suggest that Americans who are allowed by law to fall in love, share their lives and raise children together will, in the not too distant future, be allowed to get married.

As evidence of von Drehle’s exuberant spinning, look no further than his glowing (and predictable) shout out to John Boswell (1947-1994), described in detached, journalistic terms as “a dashing young member of Yale’s all-star history faculty in 1980 when he published Christianity, Social Tolerance, and Homosexuality.” Yes, Boswell’s book quickly won renown and awards upon publication, but it was soon shredded by an array of scholars, including orthodox Christians and activist homosexuals. 

Regardless, for all of its smugness and errors, the TIME’s piece is worth noting because I think von Drehle does get one thing quite right, which I’ve bolded in this excerpt from his essay:

You could start the story as far back as Adam and Eve, tracing the twists and turns of society’s struggle to order and regulate the natural imperatives of sex. For some social conservatives, it would be a tale as simple as the old line that God didn’t make Adam and Steve. But subtler Bible scholars — the sort who wonder why Saul was so miffed at David for “choosing” Jonathan for a love “more wonderful than the love of women” — would say these matters have always been complicated.

Instead, start on May 18, 1970, when a young Air Force veteran named Jack Baker visited the Hennepin County clerk’s office in Minneapolis with his boyfriend of three years, librarian Michael McConnell. Neatly dressed in coats and ties — “neither is a limp-wristed sissy,” Look magazine noted — they filed an application for a marriage license, which was promptly denied. The episode was generally dismissed as a stunt, another strange happening in those days of hippies, riots and Woodstock. Homosexuality was still classified as a mental illness by the American Psychiatric Association, and even University of Minnesota professor Allan Spear, a gay-rights pioneer, called Baker and McConnell “the lunatic fringe.” The publicity cost McConnell his job, while Baker, a law student, filed suit.

In an opinion that cited the Book of Genesis, among other authorities, the Minnesota Supreme Court rejected his claim, and his appeal to the U.S. Supreme Court was turned down “for want of a substantial federal question.” But Baker was onto something. His suit, for the first time, linked the idea of same-sex marriage to an emerging line of high-court precedents establishing a right to privacy in matters of sexual intimacy.

These precedents were both product and fuel of the sexual revolution and gunpowder for the resulting culture wars. In 1965 the court held that married couples have a right to use contraception. The Justices extended the principle in 1967 as part of a decision to strike down state laws against interracial marriage. By the time Baker was making his appeal, the zone of privacy had been extended to unmarried couples using contraception, and a year later, in 1973, Roe v. Wade invoked the right to privacy in legalizing abortion.

By the mid-1980s, the American Civil Liberties Union believed the concept had advanced far enough to shield the intimate behavior of gay men and lesbians. The group offered to help a Georgia man named Michael Hardwick challenge his conviction on sodomy charges. But the gamble failed. By a vote of 5-4, the high court held in 1986 that states were allowed to enforce age-old sexual taboos. Writing in dissent, Justice Harry Blackmun, author of Roe v. Wade, argued that traditional moral condemnation of sexual behavior between consenting adults is not sufficient reason to infringe on privacy. True, some “religious groups condemn the behavior” of homosexuals, he wrote. But that “gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”

Although few recognized it at the time, this concept — that something more than traditional morals is needed to justify laws governing intimate relationships — was a lever awaiting the right moment to pry open the door for same-sex marriage. Yet at the time, marriage seemed impossibly remote to most gay-rights leaders. They had no appetite for such a pie-in-the-sky project when same-sex intimacy could still be prosecuted as a crime.

For that matter, many gay activists weren’t interested in getting married. In the 1970s and early 1980s, the reigning model of liberated gay culture was found in meccas like San Francisco’s Castro Street and New York City’s Greenwich Village, where people scoffed at the idea of coming out of the closet only to enter the confines of wedlock.

There are several important connections between contraception and “gay marriage”. One is that the severing of sexual intercourse from reproduction and offspring brought about by “the Pill” and other modern contraceptives opened the logical, if perverse, door to belief that sexual pleasure is and should be an end in itself. Period. And, thus, how that sexual pleasure is obtained is a matter of subjective desire, as long it involved consenting adults, etc., etc. 

The other connection is put quite well by von Drehle in the excerpt above. Yet it is a connection that most people are not familiar with, in part, I suppose, because making such connections is not the strong suit of many Americans, but also because we are a nation infected by historical amnesia, to the degree that 1965 might as well be 1054 or 1492. Sure, something happened a long time ago, but what does it matter to me?

Philosopher and professor Dr. Janet Smith explained it quite well in her little book, The Right to Privacy (Ignatius Press/The National Catholic Bioethics Center, 2008), which she talked about with me in this 2009 interview. She said:

Ignatius Insight: What is the “right to privacy” and what are its legal origins? What are its philosophical and moral roots?

Janet E. Smith: The “right to privacy” when originally formulated referred to the right to have such things as one’s journal or conversations kept private.

The basis of this right is that we are “ends in ourselves”: we do not exist to be used by anyone. We are free by our very natures and free to “determine” or craft ourselves, rather than being used by others. The legitimate right to privacy is the right not to have things that are rightfully private made public. No one should record our conversations and make them public without our permission, or use pictures of us to sell products, for instance, or sell our diaries.

Philosophers speak of the “turn inward” that happened with such philosophers as Descartes. The world that was most real to them was the subjective world, the thoughts in their heads, rather than exterior reality. Their interior judgment became the standard of truth rather than objective reality. A later philosopher, David Hume, declared that we could not trust our senses as a source of truth. With no exterior standard to adjudicate which judgments are true, people started claiming that all opinions are equal.

Subjectivism, skepticism, and relativism became the reigning philosophical positions. If there is no objective reality that must be the guide for our actions, we should be free to do whatever we think best. We cannot let others dictate to us (this would be heteronomy); we should all live only by the laws we lay down for ourselves – this is autonomy. The right to privacy was built on those “isms” and on a view that we all have a right to radical autonomy. 

Ignatius Insight: If Roe v. Wade was the poster child (no pun intended) for the “right to privacy,” what was Griswold v. Connecticut? Why was that 1965 decision so significant?

Janet E. Smith: I suppose Griswold v. Connecticut was its grand debut. In that decision the courts attempted to find some basis on which they could overturn laws against the sale, distribution and use of contraception. For nearly a century many states and the federal government had had laws against contraception. Planned Parenthood assiduously challenged those laws but they were repeatedly affirmed by legislatures and courts. 

In 1965, in Griswold v. Connecticut, the Supreme Court found constitutional protection for the sale, distribution and use of contraceptives—by married couples. As is well known, there is no “right to privacy” in the constitution nor were the justices clear on which amendment implied a “right to privacy” that would guarantee access to contraception. A short two years later the court expanded that right to the use of contraceptives by the unmarried. In 1973, the court found that the right to privacy extended to the right to have an abortion. There, too, laws of all fifty states were overturned by the votes of a few justices.

The right to privacy has become a very elastic right; it has been used to legalize contraception, abortion, assisted suicide and homosexual acts. Virtually no one can give a coherent explanation of what this right is and what it legitimately protects. It has become a wild card that permits the courts to advance a very liberal not to say libertine agenda, often overriding the decisions of state legislatures and courts. 

Read the entire interview at Ignatius Insight.