Why Legal Language Won’t Settle Our Cultural Controversies


By Mark Bauerlein

One of the more intractable aspects of sexual politics today for conservatives and traditionalists is the emergence of the courtroom as the setting for policy and practice. Even when they have a democratic majority, not to mention centuries of sexual-marital mores on their side, the contrary will of one-to-five politically appointed individuals can prevail. Of course, judicial activism is an old problem, undemocratic and arbitrary, placing monumental decisions in too few hands. But there is another problem, an indirect one that follows precisely from critics taking seriously the courtroom’s power. We could call this problem the “legalization” of debate, meaning not whether something is legal, but instead the conversion of moral, social, religious, and other dimensions of an issue into legal, or legalistic, terms, or at least the neglect of them because of a focus on what the judges will say.

Lawyers and judges have always spoken that language as a professional duty, and now that the court has become the decider of so many things, discourse increasingly gives the impression that the legal determination of same-sex marriage, religious liberty, and other conflicts is the crucial one, not their historical development, moral nature, and so on. In his vigorous outline for the defense of marriage, published in National Review in May, for instance, Ryan Anderson chooses as the first step, “Stand Up for Our Authority as Citizens and Pass Laws Reflecting the Truth about Marriage.” I just went to the Family Research Council’s “Issues” page and found the lead statement under Marriage and Family, entitled “Why Do Courts (and the Media) Ignore Federal Precedent on Marriage?” It notes how recent court decisions on marriage mistakenly neglect a pro-traditional marriage decision issued in 2006, but keep the discussion solely in legal terms.  A better treatment would have downplayed the legal side and answered, “Judges skip it because our elite culture wants them to.”

But however forceful those legalistic arguments may be, it is important not to underappreciate a critical fact: Most people don’t regard the issues that way. Even when a legal controversy is the occasion for debate, most people respond by connecting it to things they already know—not the law and the circumstances of the case, but experiences they’ve had, people they’ve met, movies and TV shows they’ve watched. They form judgments through past exposures more or less dimly related to the dispute, but which live on as half-remembrances and vague impressions that nonetheless have shaped values and steered beliefs.

When it comes to issues of sexuality, in particular, a human dramatization has affected them more than a legal argument, or any other kind of argument for that matter.

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