My friend and squash partner Stephen Macedo has certainly raised the level of much of the debate in The Crimson on the Colorado gay rights case (Evans v. Romer). He shows that it is possible to disagree sharply while maintaining courtesy and restraining indignation. Between ourselves, of course, we need no courtesy and feel no indignation, but that fact merely strengthens the point. His argument persuades me against my inclination to say something more here.
My interest in the Colorado case had little to do with gays. Homosexuality is not my favorite topic. I regard it as a misfortune because it prevents one from sharing in valuable human experiences, but there are other, worse misfortunes. Although I do regard homosexual practices as shameful, I do not recoil in horror at them. I think I understand the ambivalence of gays toward conventional morality--sometimes flaunting their scorn for it, sometimes wanting it on their side. Here is a very human contradiction.
I got into the Colorado case, however, out of concern for what is happening to our Constitution. I was amazed that a court would think of overturning a decision of the voters, making losers into winners and winners into losers; that to do so, it would begin by granting gays the status of a "suspect class," the very thing that the election meant to deny them; that it would use the preposterous argument that losing an election unfairly burdens the right to vote of the loser; and that it would have so little respect for the law that it would entertain testimony from "expert witnesses" like myself. For I am an expert only in things that in a democracy should be decided by the electorate. Perhaps it serves the people to make the point. I do not think that natural law, if such a things exists, should be used to declare what is constitutional.
Nonetheless, setting aside my main concern, I return to the lesser question for me, which is apparently the only question in this community. The issue in the Colorado amendment ("no protected status for homosexuals"), I would say, is whether homosexuality should be perfectly respectable, or tolerated but disapproved. This issue seems to me perfectly within the competence and constitutional discretion of the Colorado voters. But in addition, I do prefer the latter view and I would have voted for the amendment. Why? Because I think that this position provides for less intrusion and more "live and let live." Readers of The Crimson will have to be told that this phrase appeared in my testimony; it was actually in the headline of the account in the Denver Post.
Once upon a time the classical liberals invented toleration as the alternative to persecution for heresy. I may disapprove of what you believe about God, they said, but your belief doesn't "pick my pocket or break my leg." This is not good enough for today's liberals. They want my precious sense of self-esteem to be respected. They demand that others be sensitive to me--what am I saying?--that I be sensitive to others. They insist that the government be given the task of insuring that this happens. They believe, as Cass Sunstein, an expert witness on the other side of the Colorado case said, that the purpose of the Constitution is to "eliminate prejudice."
Somehow the difference between eliminating prejudice and eliminating heresy impresses me less than their similarity. I think I have seen something of the latter in the reaction here to my perfectly ordinary opinions on homosexuality. So I prefer the middle position of toleration, which I think safer and more humane.
So far I have tried to show that a conservative like myself is both more democratic and more liberal than the "liberals" of today.
Let me now turn to Macedo's rather fancy argument. Let's begin with the wisest thing Macedo said: "Sexual desire can be a problem." Indeed, as poets, philosophers, theologians and scientists agree, it is a tyrannical passion of overwhelming strength. Sexual desire is too strong to be controlled by reason or natural law derived from reason. It can only be controlled by a force of comparable power, and that is shame.
Shame is a notion missing from Macedo's statement but present in every sexual situation. The need for shame makes it impossible to leave sex to adults consenting in private, because consent needs to be backed up by social agreement on what is shameful. Women, in particular, need the weapon of shame to defend themselves from being bullied and battered by men. Homosexuality is an open challenge to society's sense of shame, as the gays recognize quite well. For if the practices of homosexuals are not shameful, what is?
Shame, by our hypothesis and in fact, is not rational. It is a passion that represents our human dignity, since it reminds us of what is undignified to do even though the act may be profitable, useful or pleasurable. Its strength and limitation consist in the fact that one cannot give an adequate account of it; shame is variable and seems arbitrary. But because reason cannot get rid of it, reason has to direct it; and here is where natural law or natural right comes in.
Traditional natural law, Protestant as well as Catholic, as well as (pace Reverend Gomes) the Christian, Jewish and Muslim religions, justify sex as for procreation. Of course they do it differently. But procreation is said to be the goal or end of sex. This does not mean necessarily that all sex not for procreation is wrong; contraception might be justified as a way of intending procreation rather than letting it happen. In either case procreation is considered to be part of a perfect or complete human life. Sex without procreation is imperfect, even though it's fun and permissible (it's never safe). But sex in which procreation is inconceivable is not permissible and is shameful. Where this line is drawn, and whether it includes heterosexual practices, is debatable. But at least the view that sex is for procreation accommodates our sense of shame.
Macedo's natural law draws the line at promiscuity. Promiscuity is wrong, whether homosexual or heterosexual; and stability of either type is the end. But he also mentions "elevation" as a desirable feature of relationships. Isn't procreation a necessary part of an elevated relationship if it is complete? It is hard to think of the business of conceiving and raising the next generation as merely optional, in which society has no interest. Surely we teachers depend for our livelihood on an ever-renewed supply of young people. And what of shame? Where is the protection--always as difficult to justify as it is indispensable--for human dignity?
As to gay marriage, it seems strange to endorse it with a natural law that pays no attention to the nature of the human body. But I do not think natural law can be a direct rule for human law; the circumstance of our society must also enter or policies. We should be considering what gay marriage would do for the stability and elevation of our (rapidly degenerating) families.