The California Supreme Court today will hand down its ruling on the constitutionality of Proposition 8, the ballot initiative that banned same-sex marriage, and on the legality of the 18,000 or more such unions sanctioned under state law before the measure's passage.
Whichever way the court goes - and California's ongoing fiscal disintegration notwithstanding - the losing side is bound to mount a determined, passionate and well-financed campaign to reverse the ruling at the polls. Marriage equality has joined abortion as one of those issues that will continue to be fought out on that shifting and uncertain ground where the law's logic and the language of rights contend with religious orthodoxy and the claims of tradition.
No other Western nation fights such battles on this terrain. We Americans are a paradoxical people - on the one hand, the world's most modern nation; on the other, the only developed country where significant numbers of people still assert religious belief.
Simultaneously, we are, as the English historian Simon Schama recently pointed out, a people with "the history habit," one that "dwells ceaselessly on the lives and wisdom of their ancestors." The founders and the framers are, for us, a living presence over whose intentions and legacy we argue endlessly and, too often, ignorantly and wishfully.
We want what we want, but we - each of us in our own way - want our choice sealed with the approval of our ancestors and their God ... as we understand them, of course. Schama argues that the genius of those revered founders and framers "was to make a place for (faith's) profession of whatever sort, so the pious or the impious would never feel obliged to kill each other on behalf of the victory of their convictions." Here, religion "could depend only on its own intrinsic persuasiveness."
One of the difficulties of the current era is that substantial numbers of religious leaders, including evangelical ministers, Catholic bishops of the reductionist school and Mormon officials, have lost faith in their creed's ability to persuade except by fiat from the pulpit. What they've forfeited in the process is that sense of separation that defines the American system by demanding that religious belief express itself in public life only through the operation of individual conscience.
For a people wrangling endlessly over history and tradition, we attend too little in these matters to the thoughts of our wise elders. One of them is California's John T. Noonan Jr., senior judge of the 9th U.S. Circuit Court of Appeals. Noonan, now 83, was appointed to the court by President Ronald Reagan in 1985, and he is not only a distinguished jurist but an important Catholic theologian.
Recently, he shared the lectern at Notre Dame's graduation ceremony with President Barack Obama, so his remarks there went unreported. They're worth quoting at length, however, because they speak directly to the crucial question of how conscience properly expresses itself in our public life.
"Some things all of us know are wrong," he said. "Genocide is wrong. Torture is wrong. Slavery is wrong. In these matters, our moral vision is clear. Our moral vision has had a voice to vindicate those unable to speak. Our moral vision is shared by the civilized world.
"It was not so always. The clarity of our moral vision has come out of clashes. It has come by experience, by suffering, by strenuous debate. It has come from the insight and courage of gifted leaders. . . . The hesitations, the doubts, the qualifications, the outright opposition of others delayed the day of victory for each of the great moral causes where the truth ultimately prevailed. The champions of the cause were frustrated - frustrated most of all by those who should have been their friends.
"For half a century now, a great debate has gone on in this country about a matter touching the inviolability of human life in a mother's womb, the rights of a woman with respect to her own body, the duties of doctors, the obligations of parents and the role of government in a decision that is patently personal and significantly social. ... At its center are the claims of conflicting consciences."
Each of those consciences, Noonan said, is "more than the voice of your mother, more than an emotional impulse. This mysterious, impalpable, imprescriptible, indestructible and indispensable guide governs our moral life. Each one is different. You may suggest what my conscience should say, but you cannot tell me what my conscience must say.
"That's the rub when your moral vision is clear and the other fellow's is cloudy. You become impatient, the more frustrated if the other fellow is a friend - an old friend or a potential friend. Why can't he or she see it? To satisfy that frustration by shunning or denouncing your unseeing companion will accomplish little beyond expressing your own exasperation."
There's wisdom, as well as experience, in those thoughts, for just as we cannot afford politics without conscience, we cannot much longer afford a politics of exasperation.
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