In 1990, few Americans saw themselves as opponents of same-sex marriage. Rather, they saw the idea of same-sex marriage as simply ludicrous. This is despite the fact that large and growing numbers of same-sex couples lived openly in committed relationships. In 2010, a mere 20 years later, opponents of same-sex marriage are widely characterized as bigots. For those of us who support equal marriage rights, it is far easier to sympathize with the lesbians and gay men who feel excluded from one of society’s central institutions, and the public affirmation and respect it entails. Yet it is worth keeping in mind that those on the other side have experienced, in a historical blink of an eye, cultural whiplash, the kind that tends to engender a defensive, if not angry, reaction.
And in a similar vein, the fight over Cordoba House strikes people on both sides as utterly baffling. For most people of a cosmopolitan bent, who think of New York as a polyglot metropolis defined by its reputation for cultural tolerance since the days of New Amsterdam, the effort to prevent the establishment of a Muslim cultural center in the heart of Lower Manhattan, steps away from Ground Zero, seems counterproductive and even a little sinister. Michael Bloomberg, like hundreds of thousands of others, came to New York as a young professional, thrilled by the economic and cultural opportunities the city offers. Living and working alongside Muslims and Hindus and members of countless other religious minorities comes naturally.
With a judge’s ruling, a narrow majority of the California electorate was told that its beliefs were too prejudiced to count.
For others, however, Cordoba House represents a cultural affront. Because the 9/11 terror attacks were the product of Islamic extremism, Cordoba House seems to pour salt on a psychic wound. Here the vision is of New York as a flesh-and-blood city of neighborhoods like any other, in which the cultural sensibilities, if not the cultural prejudices, merit at least some respect.
During the 1960s, Lord Devlin, an English High Court judge, waged a mostly forgotten intellectual crusade against the 1957 Wolfenden Report. The report, issued by a government-sponsored commission, argued that there “must remain a realm of private morality and immorality which is, in brief and crude terms, not the law's business,” and with that recommended the repeal of all legislation regulating homosexual conduct between consenting adults. For Devlin, the Wolfenden Report bordered on incoherent. In his view, society “is held together by invisible bonds of common thought.” These invisible bonds are so vitally important that a government is entitled “to use the law to preserve morality in the same way as it uses it to safeguard anything else that is essential to its existence.”
And as Lord Devlin consistently argued, morality is contingent. In one society, the law would be used to enforce monogamy, while in another it might be used to enforce polygamy. Intolerance, indignation, and disgust were, in Devlin’s view, the forces behind the moral law. Rather than consult an expert commission to determine which brand of morality to enforce, Devlin argued that societies should defend the settled understandings of ordinary citizens.
• Michelle Goldberg: The Right’s New Religious BigotryBut of course settled understandings don’t always stay settled. Support for the rights of lesbians and gay men is so strong in today’s Britain that it really does represent the invisible bonds of common thought that Devlin sought to defend. Devlin’s moral relativism has drawn ferocious criticism from liberal thinkers for decades, most prominently from the great legal philosopher H.L.A. Hart. Yet there is nevertheless something interesting if not appealing behind Devlin’s thinking: he acknowledged that Britain was a society like any other, with a moral code as arbitrary as any other. The force of its moral law was rooted not in its truth or wisdom, but rather in the raw desire for societal survival and cultural perpetuation.
Judge Vaughn Walker’s ruling is based on the premise that an irrational majority can’t be allowed to restrict the fundamental rights of a minority. This is an idea most of us think of as deeply American, yet it is arguably a fairly new idea in our history. And with that, a narrow majority of the California electorate was told that its beliefs were too prejudiced to count. It’s worth noting that because of California’s changing demographics, it is very likely that an electoral effort to overturn Proposition 8 would have succeeded in the very near future. That, however, wasn’t enough for those who saw Proposition 8 as deeply unjust, and in need of an even more forceful repudiation. Had Proposition 8 been defeated at the ballot box, one can imagine its proponents concluding that they lost the debate fair and square. But Judge Walker’s ruling will sting in a very different way, and that resentment will linger.
Reihan Salam is a policy advisor at e21 and a fellow at the New America Foundation.