Obergefell and the New Gnosticism

For decades, the Sexual Revolution was supposed to be about freedom. Today, it is about coercion. Once, it sought to free our sexual choices from restrictive laws and unwanted consequences. Now, it seeks to free our sexual choices from other people's disapproval.

That’s a sharp turn—but it was inevitable. The ideals of the Sexual Revolution call for it: That is one lesson of the year that has passed since the Supreme Court imposed same-sex marriage in Obergefell v. Hodges. Most of Obergefell’s lay supporters were simply moved by concern for our LGBT neighbors—a worthy and urgent concern that the Church must be the first to heed, as Wesley Hill has beautifully reminded us. But the Court’s ruling itself depended on a broader sexual progressivism; and its cultural fallout has made clearer that sexual progressivism is illiberal. Absorb its vision of the human person wholesale, and you will soon conclude that social justice requires getting others to subscribe to that vision.

In short, the ideas that Obergefell imposed on our government could hardly stop there; as with an evangelical creed, the legal system could not embrace them without feeling bound to spread them. Obergefell is thus best seen as a religious bull from our national Magisterium, the Supreme Court, by the pen of its high priest, Justice Kennedy. With all the solemnity of a Chalcedon or Trent, it formalized new doctrines for our nation’s civil religion—Gnostic ideas about the human person. Ideas that, by their very nature, create an obligation to recruit new adherents. (And ideas that—unlike true religion—could serve their purpose whether or not they were accepted freely.)

Obergefell has thus inspired fidelity and stigmatized heresy, on pain of the (civic) mortal sins of bigotry and injustice. One year later, we can take the measure of its consequences—and prepare for future ones—only if we spell out the ideas it embraced, and why they demand to be enforced.

To hold that same-sex marriage is part of the fundamental right to marry, or necessary for giving LGBT people the equal protection of the laws, the Court implicitly made a number of other assumptions: that one-flesh union has no distinct value in itself, only the feelings fostered by any kind of consensual sex; that there is nothing special about knowing the love of the two people whose union gave you life, whose bodies gave you yours, so long as you have two sources of care and support; that what children need is parenting in some disembodied sense, and not mothering and fathering. It effectively had to treat contrary views as irrational.

That conclusion suggests that the body doesn’t matter. When it comes to what fulfills us, we are not personal animals—mammalian thinkers, to put it starkly—who come in two basic forms that complete each other. We are subjects of desire and consent, who use bodily equipment for spiritual and emotional expression. Fittingly, then, has this new doctrine been called a New Gnosticism.

Beyond marriage, this doctrine entails that sex doesn’t matter, or that it matters only as an inner reality. Since I am not my body, I might have been born in the wrong one. Because the real me is internal, my sexual identity is just what I sense it to be. The same goes for other valuable aspects of my identity. My essence is what I say and feel that it is.

The doctrine is also individualistic. On the old view, you could know important things about me unmediated, by knowing something about my body or our shared nature. And our interdependence as persons was as inescapable as our physical incompleteness and need: as male and female, infants and infirm. But if the real me lies within, only I know what I am. You have to take my word for it; I can learn nothing about myself from our communion. And if I emerge only when autonomy does—if I come into the world already thinking and feeling and choosing—it’s easy to overlook our interdependence. I feel free to strike out on my own, and to satisfy my desires less encumbered by others’ needs.

But again, mere acceptance of this vision of the person isn’t enough to explain Obergefell. The Court did not simply allow new relationships; it required their recognition as marriages, as similar to opposite-sex bonds in every important way. In other words, it didn’t simply free people to live by the New Gnosticism. It required us, “the People,” to endorse this dogma, by forbidding us to enact distinctions that cut against it. It held that your dignity demands more than the freedom to lead your life as a purely spiritual subject. It requires us all to treat you as a purely spiritual subject. Anything else is demeaning; it implies that you are essentially bound by a body.

It’s not that the New Gnostics are an especially vindictive bunch. It's that a certain kind of coercion is built into their view from the start. If your most valuable, defining core just is the self that you choose to express, there can be no real difference between you as a person, and your acts of self-expression; I can’t affirm you and oppose those acts. Not to embrace self-expressive acts is to despise the self those acts express. I don’t simply err by gainsaying your sense of self. I deny your existence, and do you an injustice. For the New Gnostic, then, a just society cannot live and let live, when it comes to sex. Sooner or later, the common good—respect for people as self-defining subjects—will require social approval of their self-definition and -expression.

This vision of the self explains otherwise novel and puzzling ideas: e.g., that you can’t be authentic without acting on your sexual desires, and that a physically healthy biological male might have been a woman all along. And its consequent illiberalism—the impulse to police dissent—explains an otherwise astonishing development. It explains how the status of absolute orthodoxy—which same-sex marriage advocates fought for decades to secure, and still achieved with astonishing speed—was transferred to transgenderism virtually overnight.

It explains why those who deny that men can become women are today’s newest bigots—even when they were yesterday’s feminist heroines. It explains the ferocious reaction to bills that would accommodate both women made uncomfortable showering with biological males, and biological males uncomfortable with showering with men. It explains what emboldened the Obama administration to force every public school to comply with students’ professed gender identity in every domain. These are all the natural follow-ups to forcing wedding vendors, counselors, and charities, private colleges and universities, to treat same- and opposite-sex couples alike, or else face crippling fines or loss of their operating licenses.

Again, none of these effects came by force of law from Obergefell. But they are all of a piece with the New Gnosticism and its inherent coerciveness. We’ll see more of its effects in the near future. We’ll see more parties enlisting courts in the unfolding coercion, by deploying the perfectly tailored concept of dignitary harm: the pain of being told by others that your choices are immoral. Legal academics have argued that this sort of harm strikes at the heart of the common good, and that judges should count it against the moral and religious liberty claims of those seeking to avoid complicity with others’ sins.

It’s surely painful to be told that our intimate choices are wrong. But the concept of dignitary harm is nebulous enough to count against any conscience claim—even while a spurious link to the (systematically very different) harms of Jim Crow makes it weighty enough to defeat any claim it is weighed against. Unsurprisingly, given the tenets of the New Gnosticism, it has been invoked only in connection with conscience claims in the sex-and-reproduction culture wars. Until now free speech claims have been safe against such erosions, by a virtual consensus of our legal culture that political speech needs most protection precisely when it offends. But the consensus may soon be shattered by efforts to fight offensive speech on sex and marriage.

Increasingly, too, silence about others’ intimate choices may be construed as disapproval, as conservative employees of some major corporations are finding out. And failure to facilitate sensitive choices may be construed as efforts to thwart them. Some arguments for the HHS contraceptive mandate under the Affordable Care Act assume as much, as do more recent efforts by the Obama administration to pressure insurers to cover sex reassignment surgery.

We must show that counting dignitary harm in this sense (painful though it is) against any civil liberty would be variously incoherent or self-defeating, and directly at odds with the values of classical liberalism. It would—by design—shut off the springs of moral and political reform, right at the source. But we will not succeed in that effort until we have faced head-on the New Gnosticism that drives it. This will require spreading our own evangelical creed: that we are not disembodied subjects but fleshly icons of the invisible God; whose worth comes not from extorted approval of our personal choices but from His infinite, undeserved love.

Sherif Girgis, a recent graduate of Yale Law School, is completing a Ph.D. in philosophy at Princeton.

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