Professor Thomas Berg (St. Thomas) posted a very thoughtful comment a few days ago on two pieces about same-sex marriage written respectively by Professors Michael Perry and Rick Garnett. I’ve reprinted my thoughts about Tom’s comment below, in case it is of interest to readers here.

Reading Tom’s thoughtful comment below is a pleasure. He takes each of Michael’s and Rick’s respective pieces, notes and elaborates on areas of agreement, and proceeds to explain with care where he may have a different view. I should also say that I very much respect and admire the work that he, Professor Laycock, Professor Wilson, Rick, and Michael (among others) have been doing on the issue of religious exemptions and same-sex marriage.

The tail end of Tom’s post caught my eye: “In fact, in the long run, I think, the best hope for arguing for religious liberty is not to refuse sympathy for gay couples’ efforts to live out their deep, pervasive commitments–but rather to accord them sympathy and claim similar sympathy for the deep, pervasive commitments of religious believers individually and in their institutions.  It is frequently argued that activists for SSM, “aggressive and uncompromising,” will never return that sympathy.  But the struggle here is, as in so many other cases, to convince those in the middle.  My own judgment is that as time goes on, the effort to refuse same-sex marriage will increasingly alienate those in the middle, forfeiting the chance to win them to a “live and let live” approach that will protect traditional religious organizations’ ability to maintain their identities.”

Here are a few friendly questions for Tom about this paragraph, offered up in an appreciative spirit. The overarching question is: Why is this your judgment? More specifically, what is the basis for the judgment that, as a predictive matter, a metaphorical cessation of hostilities on the substantive question of same-sex marriage will, as time goes on, result in a metaphorical cessation of hostilities on the substantive question of religious exemption? It seems to me that in order to reach that conclusion, one would have to believe certain other things, too–things which are not necessarily particular to this debate but may reflect more general beliefs about political psychology. It is those more general beliefs that I want to explore and think about in this post.

First, it seems to me that one would need to believe in a theory of what I’ll call sympathetic reciprocity in politics (the word “sympathy” appears several times in Tom’s comment), which might go something like this: in the realm of politics or policy-making, over the long-term, people remember and respect concessions, and they respond to those concessions with concessions of their own. They reward sympathy with sympathy. And eventually, with time and good faith, a people that holds radically different beliefs about the good life can achieve a modus vivendi–a ‘live and let live’ ethic–by observing a policy of sympathetic reciprocity.

Setting aside this particular controversy, though, I wonder whether that is an accurate description of the reasons that political concessions generally get made. We do not accept a ‘live and let live’ ethic for many issues of public concern; we do accept them for others; and the issues for which we do and do not accept such an ethic are relatively stable but always changing. But is the extent to which we accept such an ethic in turn dependent on a theory of sympathetic reciprocity–that is, on the extent to which those with whom we disagree have previously extended sympathy toward the policy that we champion and that they disavow? Does politics have a sympathetic memory in this way, and does it reward those who moderate their views with reciprocal concessions? Or is the acceptance of a ‘live and let live’ ethic more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends–in sum, is it far more dependent on considerations of cultural and political power? I grant that this is a gloomier view than I think is at work in Tom’s comment. I’m not sure that I endorse it in an unqualified way. But I hope Tom might say a little bit more about why–on what grounds–he holds (or seems to hold) to the comparatively sunny view of sympathetic reciprocity in politics.

Second, I wonder about the more specific question of the political psychology of what Tom has called ‘the middle.’ In theory, a legal right ought never to be compromised by political considerations, but in practice, rights are traded off all the time. Yet we would need an extremely acute sense of the middle’s opinion of the strength and importance of the rights in conflict in order to predict with confidence whether the middle will believe that trade-offs of rights are warranted, and that a policy of ‘live and let live’ is justified. A policy of ‘live and let live’ was viable for, e.g., the Amish in Wisconsin v. Yoder in part because the common feeling (as perceived and articulated by the Court) was that an accommodation in that context could be bought cheaply. The Amish are a small minority that is largely invisible to the middle, and so the price of a ‘live and let live’ policy was low enough for the middle to display its magnanimous quality. In today’s climate, when considerations of equality and nondiscrimination are at stake, I wonder whether the calculus is different: the middle may well believe that the right of exemption is purchased at a much dearer cost.

In fact, I do not have a reliable sense for just how strong a commitment the middle has to the legal right to same-sex marriage. Tolerance is not embrace. I also do not have a reliable sense for how powerfully committed the middle is to religious liberty. On the one hand, there are signs that Americans are increasingly disenchanted with religious freedom, that they believe the First Amendment protects too much, and that of the rights that it does protect, religious freedom is comparatively unimportant. On the other hand, that’s only one survey, and, as I say, the degree of commitment of the middle to the legal right to same-sex marriage is also difficult to measure precisely.

The middle is in the middle for a reason: their support or opposition is middling. But there are different degrees of political support, and those gradations will be relevant to predictions about what the middle is likely to do when rights clash. The question I have for Tom on this front is: isn’t the viability of the ‘live and let live’ strategy dependent on having a reliably accurate measure of the middle’s views? Without that, one may be misled by an attractively upbeat, but perhaps overly sanguine (and how would we know?), political psychology that does not reflect the middle’s sense of the world.

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