Louis A. Ruprecht, Jr.
It was one of the chief tenets of German Idealism that Art, Religion and Philosophy overlapped in significant ways, aiming at similar insights and sharing a great deal of the same language. All three operated in the realm of “Spirit,” and the uniquely modern task was to study all three “scientifically.” Naturally, what Hegel, Schelling and company meant by ‘spirit’ and by ‘science’ was complicated… as it still is for us, today.
The driving insight that compelled these men (and men they decidedly were) can be stated pretty simply, though like most simple things, there is a lot of weight behind it. The big idea was this: that self-consciousness is an enormous human achievement, and one that is very rarely achieved. Consciousness, one of the most high-falutin’ terms in modern philosophy, is easy enough to mystify, but it need not be so abstract. Not at all.
They thought of it this way. We all have ways of imagining ourselves in time and in space; when those ways of imagining change, as they tend to do in times of radical social transformation (such as the Idealists were living through in the aftermath of the French Revolution), then the way we think of ourselves–the way we depict our way of being, the way we describe it to one another, where we think we have come from and where we think we are headed–all of that can all change, and rather quickly, too.
As they became more and more conscious (yes, conscious) of History as a profound and relativizing element in their work, the more they came to believe that the study of anything, especially religion, needed to incorporate history into the very fabric of the thing to be studied. There were no stable and unchanging essences, in other words, no such simple things as “truth” or “religion” to crack open like walnuts, then consume. No, to study historical entities, new sciences would be needed, human sciences that would have to find ways of working without the all-consuming instruments of microscopes and scalpels and pick-axes.
In the end, to study religion (in the singular) it was necessary to study the history of religions (in the plural).
This was the brave new world the Idealists announced, the dazzling new world of historicism. The most important things in human life, the things of Spirit, are historical because human beings are historical creatures. We are locked in time, and flux, and the necessity of continuous innovation. In this sense, they are very much our contemporaries, trying to make sense of the vastness of history and the vastness of the physical universe which the new sciences were then in the process of unveiling.
Turning the kaleidoscope of their perception upon their very sense of themselves as historical and as human, these people turned to the arts every bit as much as they did to traditional religion and philosophy. They were passionately committed to the idea that a modern state should support all three: the arts in publicly funded museums, religion and philosophy in departments dedicated to the human sciences then emerging in state-sponsored universities. We live in the revolutionary world they were so bold as to announce: the world in which religion was no longer confined to churches, and where the sacred was no longer to be secured strictly in scriptures and sermons.
That world is also the world in which a magazine like Sacred Matters makes most sense, encouraging us to track the shifting historical fortunes of the sacred, its complex streams and estuaries spilling continuously into the vast sea that constitutes modern culture and modern life.
As 2015 winds to its inevitable and somewhat somber close, it is natural to look back, surveying the often strange course of the sacred we have witnessed in the past twelve months. Glancing at the year from some conceptual altitude, like a proper Idealist, one moment stands out in highest relief for me, and it happened precisely in the middle of the year, just after the summer solstice.
I am speaking of the US Supreme Court’s decision regarding same-sex marriage (June 26th) [though if I had more time, I would link it to Greece’s dramatic public referendum on EU-imposed austerity measures (July 5th), and NASA’s altogether remarkable fly-by the planet Pluto (July 14th)], and its tremendous consequences for the sacred in our own lives and around the world.
The decision in Obergefell, et. al. v Hodges, et. al. is the kind of intervention in the culture wars to which we have become accustomed: a cantankerous 5-4 vote, with Justice Anthony Kennedy being the swing vote, as usual. In this case, Justice Kennedy was awarded the palm by the 5-justice majority, taking on the sacred task of composing their majority decision. The prominence of the words ‘transcendent’ and ‘sacred’ is one of the many striking aspects of his opinion. Whether what he intends by these terms is a form of German Idealism or undisguised Roman Christianity is still not clear to me.
The US Supreme Court was asked to answer two questions: 1) whether the Fourteenth Amendment to the US Constitution requires a State to license a marriage between two persons of the same sex; and 2) whether it required a State to recognize such a marriage if it was licensed and performed in another State. By answering Yes to the first question, the Supreme Court declared the second question to be moot.
Justice Kennedy argued that US citizens actually have a right to marry the partner of their own choosing without undue government interference. And while he recognized repeatedly that, until just fifteen years ago, the concept of marriage had always been understood to involve the relationship between one man and one (or several) women, he argued that there was no constitutional basis for limiting this union to persons of the opposite sex.
The heart of the matter, and the real heart of the issue, for the majority was precisely what I mentioned at the outset: history. What Justice Kennedy made very clear is that there is no “essence” to marriage, just the history of how human attitudes toward marriage have changed, especially in certain revolutionary periods, such as our own. “Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process” (7)
This history, of dramatically shifting attitudes toward marriage and sexuality, occupies the central place in this decision: it comes first, and takes up well over a third of the entire 28-page opinion.
Justice Kennedy reminds us that, until well after the Second World War, women were considered legally second-class partners in a marriage, and homosexuality was considered an illness and was criminalized.
In 1967, the US Supreme Court rejected the State’s right to prohibit interracial couples to marry. In 1978, the Court rejected the State’s right to prohibit a man to (re)marry if he was behind on child support payments. In 1987, the Court rejected the State’s right to prohibit a prison inmate to marry. In 1993, the Hawai’i State Supreme Court questioned the legitimacy of classifying marriage as strictly involving a relationship between a man and a woman. In 1996, the US Congress responded to this decision by passing the Defense of Marriage Act (DOMA). In 2013, the US Supreme Court invalidated DOMA. For Justice Kennedy, then, this decision marks the culmination of some fifty years of re-thinking what marriage is in the United States–its rights, and responsibilities, and legal limits.
As with marriage, so too with human sexuality; the past fifty years have witnessed nothing less than a sea-change in mainstream cultural attitudes toward the multiple expressions of sexual preferences. It was only in 2003, Justice Kennedy pointedly reminds his peers, that the US Supreme Court reversed its own 1987 view that so-called Sodomy Statutes, laws which criminalized same-sex sexual activity, were indeed constitutional. Twelve years ago, the Court declared such laws an unconstitutional infringement of citizens’ rights to individual sexual expression.
Combining these parallel shifts in social attitudes–toward accepting a new pluralism of sexual identity and sexual choices, and toward re-thinking the proper limits of marital unions–the US Supreme Court now declares that gays, lesbians and bisexuals have the right to marry same-sex partners if they so choose.
So far, so good. But history is not the only argument that Justice Kennedy makes. Quite the contrary. He seems determined in the end to find an essence to marriage, after all, and that essence is fundamentally religious–even for the atheist. Consider the following remarkable statements:
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. (3)
Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. (3)
There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. (3-4)
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. (13)
Marriage is a coming together for better or worse, hopefully enduring, and intimate to the degree of being sacred. (Quoted at 13)
Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfilment in its highest meaning. (17)
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. (28)
It will come as no surprise that the four dissenting Justices each wrote an impassioned rebuttal to these soaring flights of rhetorical fantasy. Chief Justice Roberts wrote at greatest length (29 pages to Kennedy’s 28), complaining as usual about liberals legislating from the bench, and insisting that the US Constitution “had nothing to do with [this decision]” (29). Justice Thomas offered a tiresome legal brief as to the meaning of “due process” in the Fourteenth Amendment, one which deployed liberal quotations from him self. Justice Alito worried that the central purpose to which marriage has always been “inextricably linked” is entirely missing here: procreation (4). I’ll come back to that.
As is his wont, Justice Scalia utilized the genre of the dissenting opinion (and he insists here that it is a unique genre, one with singular rhetorical liberties attached, 7). Not content to call this legislating from the bench, Scalia refers to Kennedy’s opinion as a “decree” (1) and as a “judicial Putsch” (8). He also comes closest to capturing the legal stakes in this debate.
Scalia claims that he does not really have a dog in this fight, not particularly caring who marries whom; in this the Justice protesteth too much. “It is of overwhelming importance to me, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of nine lawyers on the Supreme Court” (2). Justice Scalia is always coy in his use of capital letters, but here the religious echo is overwhelming. This secular Court has, through a judicial Putsch, has usurped the power of the Ruler of all Americans (God, wink, wink).
The trouble is that this is anti-democratic to the core. “Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best…. Americans considered the arguments and put the question to a vote” (2). I am not sure which debates he has been listening to, but I would not characterize this debate as American democracy at its best (his insistence on permitting unlimited money to roll into electoral campaigns and ballot initiatives has seen to that). But Justice Scalia has a point: 35 states put this issue to referendum; 31 rejected same-sex marriage.
Justice Scalia’s point is that judges are not legislators, period. And the way he drives the point home is most illuminating for my purposes.
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly, then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises one quarter of Americans), or even a Protestant of any denomination. (5-6, notes omitted)
Justice Scalia has here hit upon the heart of the matter, but as per usual, his deepest insight is the one he neglects to mention.
The problem with this Supreme Court, “the Ruler of 320 million Americans,” is not its urbanity, nor its East and Left coast-ism, nor its northeast education, nor its elitism. The problem is its Catholicism. Six of the current justices are Roman Catholic, and the other three are Jewish. All four dissenting justices are Roman Catholic. And it is a Roman Catholic view of marriage that they are attempting to enshrine in the law of the land.
We are probably all familiar with the war the Protestant Reformation waged against the Roman Church’s sale of indulgences, and the way it used this income to bankroll its new arts program at the Vatican. The Protestant Reformation is commonly remembered as a reformation of the Church’s practices regarding the economics of salvation and the proper use of the visual arts. And so it was.
But Martin Luther also waged a war against the Roman Church’s view of marriage. Marriage, understood from the Catholic perspective, is a sacrament (even if, by the Renaissance, it had become the most secular of the sacraments). It is an outward sign of an inward and invisible grace, and it is designed to mirror God’s uncompromising and inexhaustible and reconciling love for humanity. Marriage involves a covenant of such depth and gravity that priests could not engage in it; to do so would contradict their marriage to Christ and his Church, and thus would undermine their authority to provide these same sacraments to their congregations. This is why Eucharist is a necessary part of a Catholic wedding; this is why divorced Catholics can no longer receive the Eucharist.
Luther did away with all that. Protestant ministers can marry. For marriage is a contract, not a sacrament. (This, by the way, enacts the same displacement of religious values the Idealists were tracking. Religion does not go away in the modern age, but it decidedly goes elsewhere: to Art, and Philosophy… and perhaps in some quasi-spiritualized new conception of marital unions.)
Justices Roberts, Scalia, Thomas and Alito are very clear about this shift, and the religious stakes involved. Justice Alito is most explicit about this, in his retrieval of the Pauline notion that marriage is fundamentally a procreative union, or at least it is supposed to be.
Justice Kennedy, who is also Roman Catholic, appears to have a more complicated view but, I would argue, one that is still Catholic at its core. His repeated claims as to the “sacred” and “transcendent” value of marriage is as far from the Protestant or contractual view as it could be.
The consequences of this decision thus may not be as benign as the majority opinion suggests in the end. “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths” (27), Kennedy reassures us. But unless I misunderstand him, he has simply authorized religious persons and groups opposed to this decision to continue to speak out against it, in emphatic terms.
This culture war is just getting started.
There is an undeniably religious dimension to the culture wars, but it is not best understood as a battle between religious and secular people. That is how Justice Kennedy sees the situation, but in this he is misguided, or else willfully blind. At the same time that cultural attitudes toward marriage and sexuality were shifting, American attitudes toward Roman Catholicism shifted too. Since President Kennedy’s election, Catholics have enjoyed an increasingly prominent place in American politics. The culture wars have an increasingly transparent tenor which positions Catholics against Protestants–and not only in the US. On issues as fractious as abortion, gay marriage and the death penalty, the question comes down to root metaphors: are we speaking of a contractual relationship, or a covenantal one?
The revolutionary strides taken in the United States and northern Europe in the past fifteen years have not translated well. Same-sex marriage represents yet another fault-line in a European Union that is not at all united, these days. It is opposed in Greece, in much of central Europe, and of course in Italy itself. Elsewhere, in sub-Saharan Africa or Central South America, these questions of sexuality and marriage are largely considered a residue of western cultural hegemony. The current Pope, undeniably progressive in his attempts to reform the Vatican Bank, to initiate further economic reforms, and to jump-start a discussion of sustainable planetary polices, is a culturally conservative Argentinian priest. He is not a progressive on social issues involving gender and sexuality.
This battle, as I say, is just beginning.
Justice Kennedy quotes Alexis de Tocqueville to the effect that “[t]here is certainly no country in the world where the tie of marriage is so much respected as in America” (16). Here is more cultural chauvinism cloaked as public policy. Compared to the northern European countries with which Tocqueville was familiar, perhaps this was true in the early nineteenth century. I am unconvinced that marriage is more culturally central in the United States in 2015 (except among Mormons) than it is in, say, Afghanistan, or Saudi Arabia, or Uganda, or Ukraine.
The real issue before the US Supreme Court is whether the US government, not just Antonin Scalia, has a dog in this fight. The marriage of which we are speaking is not an essence, it is a shifting social institution with a complex history. Or rather, histories. It is, viewed one way, a sacrament vouchsafed as such by several different religious communities. It is, viewed another way, a soaring and transcendent source of Romantic companionship, a school of virtue and a source of enduring spiritual inspiration and insight. It is, viewed yet another way, a contract, one which entitles its signatories to certain government privileges.
This last item–marriage as a contract–is the only item about which the US government or its Supreme Court has anything to say.
And what it should be saying is that it is getting out of the marriage business, once and for all. That would be an represent a significant moment of judicial self-consciousness. It will permit religious persons to debate the proper limits of the marital union and who can enter it, and it will insist that these debates remain civil and non-violent, but that is all it should do.
For a modern, secular, democratically-elected government, or its unelected justices, to claim that marriage is transcendent and sacred is the real problem here. That is for us to say. Or not.
I respectfully dissent.
Louis A. Ruprecht Jr. is William M. Suttles Professor of Religious Studies and Director of the Center for Hellenic Studies at Georgia State University. His latest books include Winckelmann and the Vatican’s First Profane Museum (Palgrave Macmillan 2011), Policing the State: Democratic Reflections on Police Power Gone Awry, in Memory of Kathryn Johnston (Wipf and Stock 2013) and Classics at the Dawn of the Museum Era: The Life and Times of Antoine Chrysostome Quatremère de Quincy (Palgrave Macmillan 2014).