As culture wars escalate, so do legislation and litigation

Although the wave of battles now underway in several parts of the country over religious freedom laws and LGBT rights may come as a surprise to some people, it shouldn’t. At least since last year’s Supreme Court decision legalizing same-sex marriage, and probably longer than that, it’s been clear that something like this was bound to happen.

Recall Justice Anthony Kennedy’s majority opinion in the Obergefell case holding that same-sex couples have a constitutional right to marry. In that lengthy document Kennedy devoted a single paragraph to the rights of religious believers who disagree.

Such people, he said, “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” But what of that? The Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex,” he insisted.

Kennedy’s words echo the secularist line that believers can believe whatever they want, but values grounded in religious faith must be overridden if they conflict with the utilitarian calculus underlying secularist policy goals.

The most infamous instance is probably the “mandate” attached by administrative fiat to the Affordable Care Act and requiring church-related institutions and groups to include coverage for contraception—including abortifacient drugs—in employee health plans. A Supreme Court ruling on the merits of a compromise is expected before the court adjourns in late June.

More recently, the same-sex marriage ruling a year ago touched off efforts to enact state-level religious freedom laws exempting people with moral objections from having to facilitate these unions. Some 20 states have adopted such measures.

But the gay rights movement and its secular supporters fiercely oppose such laws. In vetoing one In Virginia, Gov. Terry McAuliffe called it “an attempt to stigmatize.” To which Bishop Paul Loverde of Arlington and Bishop Francis DiLorenzo of Richmond, who supported the legislation, angrily retorted, “We do not ‘stigmatize,’ we serve.” They cited the Church’s extensive educational and social services as evidence.

The latest addition to this battleground concerns transgender rights. North Carolina has come under sustained attack by culture warriors of the left for having adopted a law that would require transgender individuals to use public bathrooms and showers designated for persons of their biological sex. This was in response to the enactment by the city of Charlotte of an ordinance taking the opposite tack on this less than burning but notably tasteless question.

While there are real issues for discussion in some of these lifestyle controversies, in times past many would have been settled by moral consensus and good manners. Now, by contrast, they become matters for legislation and litigation.

Twenty years ago historian Gertrude Himmelfarb published a collection of essays reflecting on the cultural revolution of the 1960s. The book was titled One Nation, Two Cultures, and its conclusion was that the United States had become a country starkly divided between two conflicting world views—one based on traditional values, the other embodying an ethic of relativistic individualism.

“Society is polarized in significant ways,” Himmelfarb wrote, “and those who deny or minimize this polarization are obscuring the reality.” But not to worry, she added. In the end, “let us be content with the knowledge that the two cultures are living together with some degree of tension but without civil strife or anarchy.”

That coexistence was fairly cold comfort even then. And if Himmelfarb were writing now, one wonders, would she still find grounds for being even this upbeat about America’s polarized cultural condition?