The Seduction of Changing the Culture

It came as a kind of cry of the heart, or a cry of moral despair, from a dear friend who has contributed deeply to the defense of marriage in California. All of the labors, all of the treasure expended, were whisked away by one federal judge, and by a Supreme Court that would not overturn that judgment.

One by one now, federal judges were picking up the theme and striking down the laws on marriage in the separate States, the laws that confined marriage to a man and a woman. Our friends have been wringing their hands, hoping that the Supreme Court may yet brake this movement in the lower courts. But some of us insist that it is necessary to keep the hand of Congress in on this matter – that there are measures that can still be put on the table to check the momentum of the courts.

But my friend was despairing now about the state of our politics and a “culture” that has become quite inverted. And who could fault her for that despair? But in the depths of her disappointment she has felt driven to the sense that the moral reasoning of the natural law was not “going to win this argument in our culture. Our culture wasn’t changed by reasonable argument. We have to fight this another way.” She has seen the campaign waged against contributors to the cause of marriage: not an exchange of arguments, but brutal waves of vilification and intimidation, bereft of syllogisms, yet powerful in their results.

My friend was surely not drawn to a countering campaign of political terror. She was despairing at the moral shallowness of our politics. But it has been all too tempting for people to talk about “changing the culture,” as though there were some path to moral change that can be detached from the life of the polis, the life of political engagement. That becomes all too easy an excuse with politicians who affect to believe that changing the culture on these matters is someone else’s business.

       We’ve come to this selfish moral confusion . . .

As I wrote to my friend, the counter-example was caught for me in this scene:  I was on my way to the Supreme Court to hear the oral argument in the Hobby Lobby case last March, and outside the Court was a massing of young women of college age. They were carrying signs proclaiming that contraception was their deep private right, that it was no business of their employer.

It seemed to escape these women that their employers would share their sentiments fully. They too don’t wish to make that contraception their business, their responsibility. The question then was, How did we get from the freedom to buy contraceptives, unencumbered by the law – how did we get from the Griswold case (in 1965) to the point now in which young women seem really to believe that their rights are impaired if an employer cannot be compelled to buy those contraceptives for them.

What was on display on the street that day, outside the Court, was evidence of the most radical change that had taken place in the “culture.” And how could anyone possibly doubt that the Supreme Court itself had played a dominant role in the shaping of this moral sensibility by teaching lessons from the highest levels of authority on the deep rightness of contraception and abortion?

What is curiously neglected on all sides, conservative as well as liberal, is the classic understanding of the connection between the “logic of morals” and the “logic of law.” A moral judgment moves away from statements of merely personal preference and speaks of the things that are right or wrong for others as well as ourselves. And the law sweeps away private choice to impose a rule claimed to be rightful and justified for all.

. . . from this selfless moral clarity

When the question was raised in the past of how the polity engages in moral teaching, the answer was that it teaches through the laws. When the Civil Rights Act of 1964 was passed, the freedom to discriminate on the basis of race in certain businesses was removed from the domain of private choice. It was treated now as a wrong; it was forbidden, in a moral voice, to everyone, to anyone who came within the terms of the laws.

Before that law was passed, there were rival majorities in the North and South, supporting and opposing that bill. But three years later there were strong majorities in both sections in support of the law. Had the culture of the South changed so dramatically in that time? Or did all of this have something to do with the fact that different moral lessons were being taught now, at the top of the State, through the laws?  

And in the same way, how do we account for the growing support for pro-life measures were it not for the measures themselves, constantly coming, constantly putting the question anew?

On the matter of marriage, the voices of opposition may be recovered more readily if something is “put on the table” in our politics – something that will take the issue out of the realm solely of judges and bring it back into the realm where ordinary people can be drawn to argue and vote and think anew, as though it mattered – as though the outcome hinged again on their judgment.

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.