Kate Abbey-Lambertz at the Huffington Post reports on an amicus brief filed by 110 conservative black pastors from Michigan. The brief is meant to oppose recent developments towards marriage equality in Michigan by making the case, basically, that “it’s incorrect to compare the fight for equal marriage rights to the civil rights movement.”
I’ve read the brief, and at least some of its contents warrant discussion even though my best guess is that the brief itself will be ineffectual in a legal sense. The arguments are telling even if legally unsound.
So, let’s look at a few key pieces of the amicus brief.
“Amici believe that the Bible defines what constitutes sound doctrine, not the culture, gender, or personality. Amici bear the responsibility to oppose unsound doctrines and to oppose practices that are harmful to the following of God’s teachings as outlined in the Bible. Therefore, Amici support the vote of 2.7 million citizens of Michigan who cast their vote and enacted the Michigan Marriage Amendment to secure the sanctity of the traditional family, as it is defined by God in the Bible.”
The point is reiterated when the coalition, represented by the conservative Christian Thomas More Law Center, states that “Amici must oppose any idea, law, rule or suggestion that is contrary to the teachings of the Bible.”
These statements open up a big cluster of issues related to public and private morality, religious values and the state, as well as the relationship between legality and morality more generally considered. But the paragraph I just quoted completely collapses any distinctions that might be necessary or useful when it comes to thinking about the relationship between church leadership and the power of the state. The reasoning flows from Bible to constitutional amendment without pause or hiccup. The coalition represented by this amicus brief is apparently untroubled by the prospect of the state wielding power in the name of their religious convictions. And the brief, in fact, makes no attempt at shedding the specifically religious language that serves to bolster its arguments. The brief, of course, speaks of “traditional values” and healthy, ideal families, but it makes no attempt to present these ideals as if they had any sort of non-religious grounding. This is, in other words, an openly theocratic amicus brief.
The coalition represented here cloaks their religious beliefs in the language of “self-evidence,” going so far as to suggest that their particular views of morality are unquestionable according to any logic or criteria that might contest their own initial claims. The logic of the brief, then, is classically authoritarian. The authors make claims on terms that could never be refuted. Consider the following statement, which is meant to critique the normative moral criteria of the American court system:
“These simply are not “scientific” matters. Materialistic science cannot measure the non-material. It cannot define or select morality, values, or the necessary components of a successful family, much less measure these factors. It is an injustice and exhibits a gross misreading of the Constitution to install such self-styled “social” experts as the moral compass of the population.”
This is a sort of half-true statement. It’s true that the empirical sciences cannot, of their own accord, make moral claims. But to say that materialistic science is incapable of measuring pre-existing moral claims is to say, essentially, that the only acceptable criteria for the corroboration of moral claims is “because I said so.” The moral authority makes a “self-evident” claim and by its very self-evident-ness the claim cannot be refuted by anything like experience or observation or alternate theories or evidence.
The logic of self-evidence is profoundly anti-democratic and it makes reasonable and open public debate all but impossible. We are bound to disagree on matters of morality because morality cannot be objective in the scientific sense. (And we would still disagree even if it was!) But what we can do is to strive towards a more-or-less objective criteria for evaluating moral claims. For example, if it is self-evident that only traditional nuclear families produce healthy children, then there ought to be some sort of evident (read: measurable or empirical) criteria by which this self-evident claim is evidenced. And if the allegedly self-evident claim is actually evidence-able, then it can be either corroborated or rejected. What has happened now, though, is that social scientists have produced evidence for the health of children raised in non-traditional households, and instead of conceding the point those who are against marriage equality are making the reactionary claim that evidence does not matter.
So it is extremely problematic that the central arguments and concerns of this amicus brief rely on “self-evident” distinctions. Here are a couple of allegedly self-evident claims presented in the brief:
Some truths are self-evident. Among them are that men and women are different. In fact, it is clear from our very existence that men are made for women, and women for men. None of us would be here but for that truth. Another self-evident truth is that it is best for children to be raised by their parents whenever possible. There have been many theories to the contrary throughout history, but they have all proven vacuous at best. Public policy that recognizes and acts on these truths is not unfairly discriminatory. In fact, the only way to have sound public policy is to build on such truths.
All of these claims can be contested quite convincingly, but I’ll save the critical gender theory for another post. The filers of this brief want policies built on these supposedly self-evident truths surrounding gender, and they object to the claim that sexual-orientation might question historical marriage policies in like manner as the rulings that put an end to bans on interracial marriage. That’s the heart of the legal argument—a self-evident distinction between race (which the authors of the brief consider to be “immutable”) and sexuality (which they consider to be “merely activity in which they engage.”) As per the brief:
A person’s sexuality and sexual preferences, however, are not their state of being, or even an immutable aspect of who they are, as race is. The truth of the matter is that it is merely activity in which they engage. And for amici, truth matters. The state has no responsibility to promote any person’s sexual proclivities, whether heterosexual, homosexual, or otherwise—and certainly is not required to accept that one’s sexual conduct preference is the same as an immutable characteristic like race. Government may not regulate people based on who they are, but it may regulate their conduct, including sexual conduct.
Now, I can think of several reasons why it might not be the best idea to compare the struggle for marriage equality to the civil rights movement. However, none of those reasons invalidate the recently-established legal precedent of treating racial designations and sexual or gender identities as largely similar.
The trouble with this brief’s “self-evident” distinction between race and sexuality, very briefly and pointedly stated, is that if sexuality is “merely activity” rather than an immutable characteristic, then so is race. The color of a person’s skin, of course, is more-or-less “immutable” but the color of a person’s skin is not necessarily race. Race as a social category is a human creation, not some sort of biological distinction. In that sense race is “merely activity.”
The point is made even more clearly if you consider the experiences of people who claim a mixed racial identity. There are circumstances in which a mixed person might “pass” as white, and their ability to pass in a given situation depends more upon context and their self-presentation than the color of their skin, per se. When the same person can be identified both as white or as a person of color, depending on the situation and depending upon their own “activity,” then it seems obvious that the category of race is just as much a product of “mere activity” as it is a result of “immutable characteristics.”
There was of course a time when racial distinctions (and even racial inferiorities) were taken to be self-evident, but our country eventually decided on an evaluative criteria that debunked self-evident racism. We are now in the process of debunking any self-evident distinctions between gender identification and sexualities. And there is backlash; change will always bring backlash. But the fairness of our society requires that self-evident claims are actually evidenced. And if they can’t be evidenced then we need to make some new claims.