Tuesday, June 16, 2020

Law and the Culture War

One of the more memorable moments in Robert Bolt's play A Man for All Seasons is Saint Thomas More’s lecture to William Roper about the value of the law:  And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat?... Yes, I’d give the Devil the benefit of law, for my own safety’s sake.

Unfortunately, we have all long since become used to the notion of the law as just one more partisan weapon in our ongoing national culture war - an increasingly warranted notion given the way each side more and more approaches and uses the law that way. The judiciary itself has hardly helped, and the fact that so many of the more politically sensitive and culturally divisive issues are apparently decided by courts on obviously partisan lines has regularly reinforced this perception. So when such an issue is resolved and a decisive precedent is set by the Supreme Court in an at least apparently bi-partisan way, (as happened this week with Bostock v. Clayton) we need to take notice.

I will leave it to constitutional lawyers to parse the particulars of Justice Gorsuch's Opinion. For partisans on both sides of the argument, civil rights for gay and transgender people also involve moral assertions which are inevitably way beyond the capacity of any human court to resolve. The Court's capacity is much more finite - to figure out how we are to live together peaceably, precisely in a world where at least some of the underlying points at issue remain unresolvable politically. After all, if all Americans had been in agreement about the rights and wrongs of civil rights and racial equality when the 1964 Civil Rights Act was passed, that legislation would hardly have been necessary. Its purpose was to establish a social policy, going forward, to treat citizens of different races (and other relevant categories) equally - regardless of whatever contrary beliefs (however strongly affirmed and conscientiously or religiously based) many citizens might continue to hold. The Court has now resolved a particular contemporary dispute about the interpretation of that law - interpreting the statue's reference to discrimination on the basis of sex as applicable to forms of sex-related discrimination not overtly at issue in 1964. The Court cannot adjudicate moral beliefs. It can, however, articulate a prudential decision that legal equality shall be the society's public policy. 

(From a democratic perspective it would likely be better - in this area as with so many other intensely contested issues - if Congress had resolved the matter legislatively, clarifying the application of the earlier statute on this issue one way or the other. As a practical matter, however, Congress has largely long since abandoned its constitutional role. As a result we are increasingly governed by the Executive branch, by statutory regulatory agencies, and by the Judiciary, as contemporary American society's de facto policy-makers.)

Both sides in this debate have been - and continue to be in their response to Bostock - intensely moralistic and uncompromising. This only highlights their mutual irreconcilability and makes harder the kind of political compromises that will be necessary in those areas where there will likely be clashes between competing rights, as in the inevitable clash between the statutory law on non-discrimination in hiring and firing and the constitutional rights of religious institutions in internal hiring and firing. 

I an old enough to remember when some religious institutions and authorities strenuously opposed divorce and fought against the liberalization of divorce laws - until that battle was decisively lost. One might still argue against the desirability of divorce on moral or other grounds and even organize one's own personal life accordingly. But no civil servant refuses to sign marriage licenses for divorced people who remarry.  Civil society's stance on marriage and divorce is what it is, however differently religious communities may regard the matter in their internal practices.

Civil laws in a pluralistic secular society are necessarily what they are. They do not resolve ultimate philosophical and theological questions of right and wrong, good and bad, but rather express some kind of consensus concerning practical policies about how people are entitled to be treated within a society.

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