You have likely seen the theme of “unbundling” in the last couple of years.
News delivery is unbundled from sheets of paper, education is unbundled
from classrooms, and cinematic storytelling is unbundled from gathering places
like theaters. The same-sex marriage debate has created yet
another unbundling, I think. The
previous bundle was a civil, religious, and social institution called “marriage.” The driving public forced the hand of highway
administrators in reinstating the 70 miles-per-hour speed limit on interstate
roads. Similarly, the general public’s de facto choices have forced the hand of
jurists to unbundle marriage into its constituent parts: the civil piece for property and custody rights,
the religious piece for sacred promises, and the social piece for celebrating
household formation.
This is a watershed moment for the United States. We are on the verge of acknowledging the gray
instead of the straight jacket of the black-and-white. The Founders were neither saints nor
villains. They had good ideas that were
meaningful in their day and were formed by the circumstances of their day. One of those ideas was accountability to a higher
authority than self in making profound choices like forming a government. Religious ideals were an important part of
our headwaters.
The gray that we confront is the means by which we define
the difference in our internal moral compass (religion, if any,) and our
collective social contract (the judicial system.) Our social contract is based on individual
liberty to the extent that it does not harm the greater good. The preamble to Robert’s Rules of Order justifies parliamentary procedure: for a minority to live according to the rules
of the majority, the majority must show respect for the minority’s views. With abortion, pornography, alcoholic
beverages, and flag-burning, we have demonstrated that we can abide peacefully amidst
the dichotomy of law and religion. As a society
interested in promoting national self-determination for other democracies, we
openly long for them to achieve secular governments. This is our moment to live by this standard
in our own behavior.
With lifetime power vested with the Supreme Court, it is
surprising when the pundits speculate that the Court would like to find a way
to dispense with Prop 8 and DOMA without making a sweeping declaration of
rights. Many are saying that the Court
would like to remand based on proponents’ lack of legal standing, theorizing
that this would buy time for public sentiment to evolve sufficiently to harmonize
with a broad rights declaration. One
wonders about the numbers game – presumably, the Court will divide
ideologically with four each on the right and left, leaving Justice Kennedy as
the fence sitter. If he is the only
fence sitter, and he is angling for remand as a way to buy time, I can imagine
the torment in his soul. Not wanting to
play the role of god in adjudicating a dispute over a radical divide, he seeks
the company of his fellow man to gather around him and signal readiness to move
forward.
Little wonder that he seeks company – the only certainty
surrounding this bridge to the future is that we will not be able to anticipate
every consequence. At times like this,
to enable action, we seek the comfort of our culture:
With malice toward
none, with charity for all, with firmness in the right as God gives us to see
the right, let us strive on to finish the work we are in, to bind up the
nation's wounds, to care for him who shall have borne the battle and for his widow
and his orphan, to do all which may achieve and cherish a just and lasting
peace among ourselves and with all nations.