The legal system alone cannot solve the problems of a pluralistic society


On Dec. 13, President Joe Biden signed into law the Respect for Marriage Act, which ensures that residents of all 50 states have the right to enter into same-sex and interracial marriages.

This act, in effect, repeals the Defense of Marriage Act, signed into law by President Bill Clinton back in 1996. DOMA had defined marriage as a union between one man and one woman, and it also affirmed the right of individual states to refuse to recognize the validity of same-sex marriages from other states.

Same-sex couples can breathe a bit easier knowing that their marriages are now protected by federal law throughout our nation. The Respect for Marriage Act adds one more piece of armor to protect the social, cultural and religious pluralism that makes America America.

Following the close of the Constitutional Convention in September 1787, Benjamin Franklin is said to have quipped: “We have a republic, if you can keep it.”

Mindful of the big IF Franklin expressed 236 years ago, today we Americans are a complex, pluralistic, diverse society, IF we can keep it.

In her trenchant opinion piece in the Dec. 5 issue of The New York Times, titled “When Gay and Religious Freedoms Clash,” Tish Harrison Warren, a priest in the Anglican Church in North America, explores both the promise and the peril of pluralism in the United States.

Her discussion focuses on a complicated case recently taken up by our nation’s Supreme Court: Lorie Smith, a Colorado graphic designer, according to a Dec. 6 front-page New York Times article, sought to determine whether she “has a free speech right under the First Amendment to refuse to create websites celebrating same-sex weddings because of her Christian faith, despite a state law that forbids discrimination based on sexual orientation.”

Smith insisted that her design company would continue to serve LGBTQ customers, except for a projected wedding-related service limited to heterosexual unions.  She argued that requiring her to provide these services to gay and lesbian couples infringes on her constitutional right to free speech.

I have read and reread the reported comments on this case by such conservative justices as Brett Kavanaugh and such liberal justices as Sonia Sotomayor – and, to be honest, I find the arguments on both sides equally convincing … and equally unconvincing.

The reason I find Tish Warren’s column so edifying is that she points out that cases like Smith’s cannot be “solved” by a strictly legal action because the social tensions simmering beneath the surface of the legal arguments reflect the radical pluralism and diversity that defines today’s America.

Warren says of herself, “though I respect secular same-sex marriage, I am a priest in a denomination that understands holy matrimony to be the spiritual and sexual union of a man and a woman and … I would not preside over a same-sex wedding.”

Nevertheless, she argues that to preserve America’s pluralistic society, we need to enhance our “spirit of mutual love and honesty, a spirit of reaching however clumsily across differences to support one another; a spirit that doesn’t expect agreement and works for peace.”

While Warren admits that it is a rare day when opposing sides on the clash between religious liberty and gay rights learn to hear the “other” with open minds and open hearts, she is convinced that this is what we must do to become a truly United States.

Tish Warren makes the difficult and nuanced argument that our pluralistic, diverse society – if we can keep it! – requires us to move beyond the letter of the law by embodying “a spirit that doesn’t expect agreement but that works for peace.”

The clash between gay and religious freedoms, emblematic of our country’s struggle with pluralism and diversity, which Warren explores with such elegance, sensitivity and grace, cannot be negotiated solely by the rule of law.

The Anglican priest concludes her essay by affirming the promise of pluralism in America: “It is a promise that different communities with conflicting narratives and ideologies are allowed in society and public life.  It is a promise worth keeping.”

JAMES B. ROSENBERG is a rabbi emeritus at Temple Habonim, in Barrington. Contact him at