Dan Kelly’s fantastic post raises an important issue about the role of government in legislating morality. There is a marked difference between government passing moral laws and government passing laws to create a moral swing in a particular direction. It is ironic that conservatives decry ‘activist’ judges when they are liberal, but then expect judges to legislate morality even when it goes against public opinion. While in some cases this can be applauded, such as prohibiting murder even if public opinion is in favor of it, conservatives often place too much faith in their government to enforce certain morals. Dan’s post on gay marriage is an excellent example. The issue is not government’s decision about gay marriage but the moral climate of this country that has neglected the institution of marriage. A government prohibition of gay marriage is not going to suddenly cause people to respect marriage. However, a culture that does respect marriage would be expected to prohibit gay marriage. Christians and conservatives (not necessarily the same thing) should realize that political activism is insufficient to bring about cultural change. In most cases, cultural change leads to political change, not vice versa. The work of upholding marriage takes place over the backyard fence, not Washington. Greg, I think someone should write a book on how we really change culture.
Duly noted, Kyle. I’ll get right to work on that. 🙂
In most cases, cultural change leads to political change, not vice versa.
You have the qualifier right. In most case, cultural change leads to political change. But what about at times like civil rights movement of the 1960s. It seem hard to dispute that the legal and political changes had a profound effect on cultural change. Why should we discount the idea that the legal fight for marriage could be similar?
Joe, that’s a good question. If the legal fight has legs, I think it will only be because the cultural predicate for reviving marriage has already progressed to the point where political change is possible.
The civil rights movement was the same. It was coming to a boil long before we got to the 1964 legislation. Even though there was still stiff resistance to the legal change, its moral authority had evaporated and the opposition was running on fumes. This was a phenomenon in which legal change followed cultural change with surprising rapidity, but I think the order was the same.
A better example of legal-led cultural change would be abortion. There, the law itself was the primary instrument of change from the get-go.
We must not draw a division between law and culture. Law is part of the culture. It’s only one part, and not usually the most important part. But for some purposes it is the most important part, and in all cases it has at least some level of importance.
Greg, that is a really important point, and I knew it would come up at some point.
With respect to their effect on culture, there is a categorical difference between legislation and court decisions. The former is, as near as I can tell, always a trailing indicator in democratic societies. Court decisions, however, particularly ones made by jurists with lifetime tenures, do not necessarily trail the culture. They often lead, but frequently in an unhelpful way.
Abortion is a great example of the destructive power of a judiciary that does not stay within its limits. The deep division over abortion is a direct result of the fact that the court, rather than legislatures, set the standard. It is pretty widely surmised that without Roe v. Wade the states would have developed a modus vivendi on this subject. Or, more accurately, the people in each state would have developed their own modus vivendi, which might not have matched what people in other states did, but would have made the various laws legitimate reflections of the populations that adopted them. Constitutionalizing the question created a one-size-fits-all standard where the people manifestly did not want that. That is one of the reasons Roe still lacks legitimacy (in addition to what even its supporters acknowledge was a bare exercise of will without regard to any constitutional standard).
And hearkening back to one of your earlier posts, this is of a piece with the failure of the European experiment. The Maastricht Treaty imposed a standard that was obviously out of step with the populations of the various countries it purported to control. Because those countries could still legislate in defiance of the purpose of the treaty, the project is now circling the fiscal drain.
If the states could legislate without reference to Roe v. Wade, they would. But the Supremacy Clause prevents that from happening, and so the people chafe under a standard imposed on them by a non-democratic branch of government.
Yes, but what I want to highlight about abortion is not the impact it has on legislatures or polarization of partisan disputes, but its impact on culture beyond law and politics. In some cases you can, in fact, change “the culture” by changing the law. As I noted in that earlier post, the process of changing the law itself creates persuasive opportunities; but far more powerful is the way the law embeds unexamined presuppositions in our thinking. Especially for those raised after the change occurs, who know no other way from experience.
One would have to wonder then if the is not whether government should recognize gay marriage, as the culture seems not to care to about marriage, but whether legalizing gay marriage will make it more difficult to reestablish marriage as what it truly is in the future.
Legal recognition of gay marriage would make it harder to rein in divorce laws, because it would reinforce the expectation that marriage is fundamentally government recognition of an emotional relationship. David Blankenhorn has a cockamamie idea that by saying he drops his opposition to gay marriage, he can join with gay advocates to build a cross-cultural coalition for “stronger families” – the idea being that you could recruit gay advocates to stigmatize divorce, or something like that. To see why that doesn’t work, read this. Their whole position presupposes that “marriage” is a meaningless piece of paper. Legal recognition of gay marriage would further embed that presupposition in our cultural consciousness.
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