Last month’s federal district court decision out of Utah that struck down part of the state’s anti-polygamy law prompted much talk about slippery slopes. Clearly this is another shoe dropping from earlier decisions against the U.S. Defense of Marriage Act and even the Lawrence v. Texas decision, which declared anti-sodomy laws unconstitutional. It really is hard to imagine how such decisions, which blur the definitions of morality and marriage, will have no catastrophic consequences. In fact, there is little doubt that advocates of minority morals are counting on the slope being slippery.
Remember when the Boy Scouts of America decided to abandon a national ban on openly homosexual scouts but did not go so far as to accept homosexual scout leaders? Protesters and advocates who pushed for homosexual rights responded by saying this is only the first step. And we agreed with them. Those who favor public endorsement of licentiousness have taken encouragement from the repeal of “Don’t Ask, Don’t Tell” in the military, from the growing number of states that now recognize same-sex marriages and from cases where private businesses have been punished for their private refusal to participate in same-sex ceremonies.
But don’t get caught up in the hysteria of slippery-slope discussions, as if stopping the slide at some arbitrary point would address anything more than symptoms of a more basic problem. A slide occurs when a layer of rock or soil is too weak to support what’s piled above it. A slide is inevitable when a lofty structure is built on material that does not hold together, sand for example. Moral cohesion is rapidly degrading in our culture.
Some of the commenters on the Utah decision expressed this reality in a less disapproving manner. In a column at CNN.com, law professor Mark Goldfeder argued that the polygamy case may have only aggravated the problems caused by anti-polygamy laws. His idea is that full recognition (endorsement) of multiple marriages is the only way to ensure that women and children are not victimized by this model of family. In an aside he noted that, in previously declaring DOMA invalid, the Supreme Court also “declared morals-based legislation invalid.” This was his less-than-precise way of saying that laws that have a primarily “religious” rationale have been declared unconstitutional by definition. Of course we still have morals behind our laws and we’ll always have a dominant religion. Even “marriage equality” for same-sex couples has been portrayed as a primarily moral issue. To me the question is less focused on where the slope takes us next—that is nearly impossible to predict—and more on the basis for future moral decision-making on the part of our legislative and judicial leaders.
Future moral decisions in America will not have a Christian or biblical foundation. That’s really what Goldfeder meant to say, I think. What he was doing was paraphrasing what Justice Kennedy said in the Lawrence majority opinion: That religion is an unconstitutional foundation for morality. Perhaps we can be forgiven for thinking the justice means Christianity when he says “religion.” Judge Waddoups, in the polygamy case, cited Justice Kennedy’s opinion as a reason for striking part of Utah’s polygamy law—the part that bans cohabitation by multiple partners who represent themselves as being married. Waddoups struck that prohibition because it violated the free exercise of religion clause of the First Amendment. The polygamous family’s right to cohabit was upheld partly because it is the practice of their sect of Mormonism, and it was upheld because the state’s ban of it was based primarily on the traditions of orthodox Christianity.
Moral decisions in America will continue to have a religious foundation then. Judge Waddoups was not necessarily invested in fundamentalist Mormonism in making his decision. Neither were Justice Kennedy and the court majority that voted with him in Lawrence necessarily in favor of sodomy. Both of these decisions were made in favor of personal privacy and sexual license, and against biblical morality. Since the 1960s, our nation has made more than a few foundation-smashing decisions based on these two priorities. Some have been made in reaction against the beliefs that brought us here. That body of work has now attained mass sufficient that we might call the commitments to privacy and license a replacement religion.
Moral decisions in America will not necessarily be based on majority decisions. Indirectly you might say that democratic processes eventually produce a judiciary based on the opinions of the people.
And yet the federal Defense of Marriage Act was more directly the result of democracy than was its overturn. The Utah law overturned by Judge Waddoups was more arguably the will of the people than was his dismantling of it. Even the Lawrence decision on sodomy took a Texas law passed by an elected legislature and signed by an elected governor and used it as the occasion for vacating all such laws in every state. Agree or disagree with the particulars, it’s hard to say that these significant decisions rose up from the grassroots.
This is an extended earthquake rather than a slide. I don’t know the basis for public morality going forward in America. For now I know that abortion of all sorts is legal in America but not so generally considered moral at the grassroots level. Polygamy’s star will rise legally in America more rapidly than will its moral status in our communities—that will be partly because our highest leaders will have to bless it in order to undergird same-sex marriage. Perhaps there is a theme that draws all this together, but I don’t see any cohesive idea that explains it. I guess that’s the point, no cohesion.
Cohesion is the difference between sand and sandstone. A democratic body will not hold together, will not hold moral ideals in common unless its autonomous members generally agree on something ultimate. For our nation, that ultimate thing changed with the times but it repeatedly proved more powerful than those things that separated us. Most often over the history of our nation the unifying ideal had Christian underpinnings. It was not considered to be persecution of the irreligious for believers to express themselves in worship or charity or evangelism. Our nation cannot declare war on the faith upon which it was founded without fragmenting in a thousand unforeseen ways. If there is one theme that best explains the changes I’ve seen in our American institutions, it is the matter of fact way Christian values are being searched out and banished. If those biblically based ideals were the cohesive power that kept our sand joined into a solid foundation, their loss will cause the fall of everything built upon that rock.