Walter Berns
Almost 70 percent of the American people have indicated their opposition to "same-sex" marriages (males with males, females with females), but neither they nor their elected representatives are likely to cast the decisive vote in this matter. Like other moral issues- abortion, for example-this one is scheduled to be decided in the courts.
In fact, it may already have been decided (potentially, for the entire nation) by Hawaii's state supreme court in a case involving the denial of marriage licenses to three gay and lesbian couples. Hearing the case on appeal in May 1993, the court said that the state's marriage statute will be held to be a violation of the equal protection clause of the state constitution-unless the state can show a compelling reason why the "marital relation" should be restricted to a male and female.
No one, not even the opponents of same-sex marriages (mainly Catholics, Mormons, and Evangelicals), believes that the state of Hawaii will be able to do this. As any experienced litigator will tell you, the compelling state interest test is almost impossible to meet. Indeed, it has been the means by which the courts have dismantled a variety of discriminatory state laws. Here the state constitution prohibits discrimination on the basis of sex, and, to quote one of the proponents, if Wilma is permitted to marry Barney, but Fred is not permitted to marry Barney, then Fred is obviously being discriminated against on the basis of his sex.
What argument can the state make? It might be inclined to quote the Bible; but that argument fails on church-state grounds. Or argue that, properly understood, marriage is a sacrament; but the state permits civil marriages, and there is nothing sacramental, or even solemn, about a marriage performed by a justice of the peace. Or that, by definition, marriage is a contract according to which the parties "reciprocally engage to live with each other during their joint lives," and that homosexual relationships (at least in the case of males) are inherently unstable; but half of the male-female marriages contracted in this country now end in divorce. Or insist that marriage is traditionally and necessarily connected with the family, which is to say, that it is entered into with the idea of children (and offer as proof of this the once universal practice of the wife taking the husband's name in order that it then be passed on to the children as evidence that the husband is indeed their father); but many a marriage is childless and, what is more, is intended to be childless and no less legal for that. Or, finally, and in desperation, that homosexuality is unnatural; but, as Freud told us, the natural (or as he put it, the original) purpose of man's "sexual drive" is the gaining of pleasure, and it is obvious that pleasure can be gained in a variety of ways.
All these failing, what argument can succeed, not with the public but in the courts? The state has been put in a position similar to that of parishioners who, when the bans were published by the priest or minister, used to be asked (and in some places may still be asked) to declare whether they know of any "cause, or just impediment, why these two persons should not be joined in holy matrimony." But, unlike those parishioners, Hawaii is being asked to do this at a time when no cause is likely to be accepted and no impediment recognized.
The consequences of its failure to prevail on retrial (now scheduled for this summer) will not be confined to Hawaii. Like it or not, every state in the union will be affected. Homosexual couples from around the country will go to Hawaii in order to join in marriage, just as heterosexual couples from around the country now go to Nevada in order to separate by divorce. Then, on their return home, the couples will claim all the benefits, particularly the financial benefits (social security, pensions, inheritance, joint tax returns, dependent tax deductions, etc.), enjoyed by other married couples. Thus, the states will be asked to recognize homesexual marriages, something no state has been willing to do.
The usual practice-it is called "comity"-is for a state to recognize all legal marriages contracted in other jurisdictions. A handful of states have formalized the process by adopting what are called validation statutes. Nebraska's, a typical example, reads: "All marriages contracted without the state, which would be valid by the laws of the country [or the state] in which the same were contracted, shall be valid in all courts and places in this state." This was obviously written without regard to the possibility that the day might come when some state would legalize homosexual marriages, thereby making them legal in Nebraska. But that's the plain consequence of the statute.
And it is not the only consequence. If, under the terms of its own law, a state is required to recognize a homosexual marriage legally contracted in Hawaii, and since, under the terms of the Fourteenth Amendment to the Constitution of the United States, it is forbidden to "deny to any person within its jurisdiction the equal protection of the laws," then, in the present climate, it will be hard-pressed to avoid having to recognize a homosexual marriage performed locally.
In the wake of the Hawaiian court's decision, the state of Utah sought to prevent this by amending its marriage validation statute, specifically excluding homosexual marriages. So far, so good. But Article IV of the Constitution of the United States contains the following provision: "Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." Under this provision, a state must recognize a divorce granted in Nevada, and the day may come when it will be required to recognize a homosexual marriage performed in Hawaii.
What now stand in the way of this possibility are a couple of Supreme Court decisions distinguishing between a divorce and a marriage: divorce being regarded as a legal judgment (and thus entitled to full faith and credit regardless of the public policy of the respective states), and marriage as merely a public act or record (and thus not so entitled). But the Court will be under pressure from the gay community to abolish this distinction. Indeed, it has already been abolished in the case of common law marriages, which, like divorces, require a legal judgment to affirm their existence. This ruling was delivered in 1991 by the Superior Court of New York, and so far applies only in New York, but the issue is certain to be raised in other states and, since it involves a federal question, will ultimately have to be resolved by the Supreme Court. If, as is likely, the Court agrees that states must give full faith and credit to common law marriages entered into elsewhere, why not to other legal marriages? It would certainly be bizarre and unlikely if common law marriages were to be regarded as having a higher legal status than ordinary, legally licensed marriages.
What can the states do to prevent this? Surely they cannot rely on Hawaii to make their case. Judging from the debates now taking place there, the state government of Hawaii can be likened to Byron's Julia, who, "whispering [she] would ne'er consent-consented." Led by Utah, the other states will put up a fight, but they are not likely to prevail. Unlike their opponents, the gays and lesbians are well organized, and well supported in the liberal press and by the ever-vigilant ACLU, all of which makes their victory likely. With what consequences? Very few, they insist; and none of them unsettling. All they want, or all they say they want, is to be treated like everybody else.
Fair enough, up to a point; in fact, quite right. But if their goal is equal treatment, why are they opposed to laws-such as the compromise measure proposed in Hawaii-requiring private businesses and state and local governments to accord to "domestic partnerships" the same benefits and privileges enjoyed by regularly married couples? Since local governments and thousands of businesses around the country are already doing this voluntarily, the goal of equal treatment would seem to be easily within their reach.
But whatever the case with the rank and file, some high-profile gays are obviously after bigger game. They want to change the marriage laws because they want to change the culture, or, as they are inclined to say, the "bourgeois" culture. When viewed, as they view themselves, as part of the broader countercultural movement, it becomes apparent that their purpose is to undermine the traditional idea of the family: the family as the building block of society, the family of fathers and mothers who naturally care for their children, who regard them as hostages to the future, and, because of this, care for the society in which those children will have to live.
Students of the Republic will know that Plato proposed to abolish the family, not merely to undermine it but to abolish it altogether. Less well known, perhaps, is Jean-Jacques Rousseau's response, which is very much in point here. Plato, he said, would have us believe that there is no need "for a natural base on which to form conventional ties; as though the love of one's nearest were not the principle of the love one owes the state, as though it were not by means of the small fatherland which is the family that the heart attaches itself to the large one; as though it were not the good son, the good husband, and the good father who makes the good citizen!"
A very sensible statement that, one that the Founders of this country would have found congenial, or at least acceptable. But because it is not likely to carry much weight with our sexually liberated judges, I propose, and quite seriously, that the Republicans do what the Democrats cannot and, therefore, will not do, namely, adopt a plank in their 1996 party platform pledging their opposition to same-sex marriages. That would send a message to the judges; it might also win the presidential election.
Glenn Tinder
Rarely, in our times, do social and political theorists praise solitude. Again and again such thoughtful writers as Alasdair MacIntyre and Robert Bellah tell us that moral rectitude, fundamental truthfulness, and all of the other virtues and skills that make us human depend upon society: upon our having a lifelong place within a social order and contemplating the historical "narrative" that defines the social order. While all this is no doubt true, it is no less true that our humanity depends on our capacity for being alone.
Christians may be disinclined to protest the neglect of solitude. Their ultimate goal, the kingdom of God, is after all a society, and their supreme moral principle, love, is a decidedly social virtue. Yet even a moment's consideration of Christ must give them pause. The life and death of Christ were both strongly marked by solitude. True, Christ was accompanied in his mission by his disciples. But it is striking how little comprehension they seemed to have either of his words or of the destiny he was living out. At the end, in Gethsemane, they could not watch with him even one hour. And when he was arrested, all of them "forsook him and fled." The lone figure of Christ on the Cross is perhaps the starkest symbol of solitude our culture possesses. Aren't Christians forced to entertain the thought that solitude is closely connected with sanctity?
Traditionally, of course, they have. The figure of St. Anthony is a classical representation of the spirituality that flourishes in solitude; and St. Anthony is only one of the many fourth-century "desert fathers" who withdrew from society into the wilderness. The hermit is an established type in both Western and Eastern Christianity, and monastic institutions, even though striving for a common and closely knit way of life seemingly at the opposite pole from solitude, have often been linked with hermetical institutions and practices of one sort or another. Near our own day, the traditional Christian recognition of solitude was expressed by Cardinal Newman in his well-known saying, "The soul alone, face to face with God alone."
Christians, then, have good grounds, both in Scripture and in tradition, for questioning the prevailing emphasis on society. They can do this in some part simply by appealing to common sense. On the one hand, society is stubbornly and radically imperfect. It is, as Aristotle makes clear, grounded in military and economic necessity. It follows that the final standard governing its actions must be expediency. The principle that the individual is to be treated as an end, and never merely as a means to some other end, cannot possibly rule the life of any society. Every war shows this unmistakably. Economic developments frequently do so as well: the transition to a market economy in Russia, for example, a change vital to the health of Russian society, inevitably works hardship on individuals when inefficient state-owned enterprises are privatized and "streamlined." On the other hand, we all recognize in our most serious moments that we must decide certain things-for example, how to conduct ourselves in an ambiguous situation or what to believe-all alone. If necessary, society must be defied.
Realizing the significance of solitude, however, depends finally on spiritual considerations. The spiritually crucial experience of guilt, for example, is always solitary; conscience does not tell me that we are guilty-at least, this is not its most forceful message-but that I am guilty. Correspondingly, the faith that I am justified by the Cross in spite of my guilt is maintained in solitude: I am justified by my own, and no one else's, faith. And when I embark on the journey toward sanctification, I am singled out from all others by an unquenchable consciousness of moral responsibilities I alone can fulfill. Even the knowledge that I will die, so essential to my spiritual being, is knowledge of an intimately personal kind; I know that my death will be unsharable. Indeed, it is scarcely too much to suggest that solitude is the strait gate, spoken of in Matthew, through which all must pass in order to reach eternal life. "One man does not become blessed," says Saint Augustine, "by the blessedness of another."
Not that solitude is entirely safe. In Notes from Underground, Dostoevsky presents a character in whom solitude nourished the traits of the mass man and the terrorist. Dostoevsky's portrait suggests a distinction between two different kinds of solitude: the self-absorbed and the communal. The solitude of the underground man was a form of self-absorption. It meant being embroiled day and night in his own resentments and obsessions. In communal solitude, however, one stands clear of alienating social constraints and is steadily attentive to other human beings and to God. Such solitude as this is a readiness for community; it is the solitude of Christ, of love on the Cross.
To speak of communal solitude is implicitly to mark out community as something different from society. Social theorists today seem largely unaware of any such distinction, and this is why they pay so little attention to solitude. Society, we might say, is the outward order; community, the inward connection. Society is more or less impersonal, hierarchical, and instrumental; community is personal, egalitarian (in affirming the mystery and consequent incomparability of persons), and an end in itself. Strictly speaking, the kingdom of God is not a society but a community, whereas every historical collectivity is predominantly a society, containing at best ephemeral fragments of community. As Ferdinand Tonnies-who may have originated the distinction-insisted, society (Gesellschaft) is alien and forbidding ("one goes into society as one goes into a strange country"), while community (Gemeinschaft) is good ("the expression 'bad community' violates the meaning of the word"). Writers who ignore the distinction must also ignore solitude. Almost any society not in a manifest state of disintegration is spoken of as a community. If this were really the case, if every orderly society were a community, solitude would be little needed, for we are communal beings and in a full community one would realize simultaneously unabridged selfhood and perfect unity with others. In even the most harmonious societies, however, our communal nature is in some measure violated and we are forced to separate ourselves from others in order to protect ourselves from false relationships. We are forced into solitude for the sake of community.
From this standpoint we can understand the provisional truth inherent in individualism. Social theorists who neglect solitude logically enough condemn individualism; today, individualism is as rarely praised as is solitude. In our fallenness, however, individualism possesses a kind of truth. We have fallen into a condition of communal atomization, and the kind of solidarity we attain through society does not overcome that condition but conceals it. In doing this, it renders it irreparable. To condemn individualism is to blind ourselves to the need for solitude, and that, in turn, is to become willing captives of society.
Plainly, solitude is good only in the sense that it is necessary; it is not good in itself. It has been called "incommunicability"-a consciousness (it might be of guilt, for example, or of mortality) that is largely unsharable. The necessity of solitude arises from our fallenness. Solitude is a burden laid upon us by our having turned our backs on God. In doing this, we have turned our backs also on our fellow human beings and find ourselves largely deprived of true relationships. It is tragic that this has occurred; indeed, the fall into incommunicability is the primal catastrophe at the source of history. But nothing is gained by pretending that it never happened.
It is scarcely too much to say that in a society stressing as strongly as America does the importance of social participation, everything of supreme importance depends on there being the counterweight of communal solitude. If you have never, all alone, tried to define your major convictions, you cannot enter into truth-seeking conversation and thus are incapable of deep human relations. If you cannot be apart from others, you cannot engage in prayer and meditation and thus cannot enter into genuine relations with God. If you recoil from solitude, it may even be said, you are politically disabled; you necessarily lack the spirit of independence needed to stand for what is right in the public realm.
Yet, since the burden of solitude is the burden of personal responsibility and of mortality, we try continually to cast it off. We follow a route directly contrary to that of the desert fathers: We flee from the wilderness of solitude into society. Today, society beguiles us into doing this; through such devices as television, bureaucratic organization, and the conformist pressures arising from mass democracy, it tries ceaselessly to engross us in illusions of community. It may be that one of the ways in which God intends that Christians be the salt of the earth is by their serving as exemplars of Christly solitude.
Robert P. George and Ramesh Ponnuru
Over the last few months, certain intellectuals on both sides of the debate over abortion have publicly expressed newfound doubts about their side's positions and tactics. Notable defenders of the abortion license, such as Naomi Wolf, have conceded that abortion is no ordinary surgical procedure but is the deliberate taking of a human life (a concession that arguably makes their continued defense of that license more, rather than less, ominous in its implications).
On the other side, some of those who have long understood the literally homicidal nature of abortion are raising questions about the advisability and even the legitimacy of seeking its legal prohibition. That unavoidably divisive effort, they believe, hinders the formation of a broader coalition that would seek to lower the abortion rate by changing the culture. The pro-life movement would do more, they argue, to reduce the number of abortions by stressing the need for teen abstinence, easier adoption laws, and crisis pregnancy centers than by continuing to push (ineffectually, so far) for a general prohibition of abortion. And reducing the number of abortions, they reason, is after all the pro-life goal. Legal restrictions are merely a means toward that end.
Some of those making this argument do, to be sure, advocate legal restrictions on the most widely reviled abortions, especially those taking place in the third trimester. Most on the pro-life side-ourselves included-agree that these restrictions should be the immediate objectives, not least because the effort to enact them would educate the public about the radicalism of the current abortion regime and establish principles that, by logical implication, demand a general prohibition of abortion. But we also believe that such a prohibition should remain the ultimate goal and that the arguments against it undermine the case for even modest restrictions.
Anti-abortion laws are not merely means to the end of reducing the number of abortions. That is a primary goal, of course, but not the only one. Legal recognition of the inherent dignity of unborn human life is an important goal in its own right. Even if nobody chose to exercise the supposed right to abortion, the fact that human life could be unjustly taken with legal impunity would remain a blot on the nation's conscience; law would still have to be brought into conformity with right. No just society can declare that some human beings do not deserve the protection of the law. Consider the analogous case of slavery: had the federal government resolved to purchase the freedom of slaves, rather than ban slavery, it could hardly be said to have thereby guaranteed the equal protection of the laws.
Another argument against prohibition-one that rejects it as illegitimate, and not merely inadvisable-has been advanced by William Bennett. He asserts that those who support the Human Life Amendment must logically support prosecuting women who procure abortions and doctors who perform them as first-degree murderers, the implication presumably being that such draconian policies are unthinkable. This argument has long been a staple of pro-choice polemics. Ronald Dworkin has perfected the technique: explain that the declared premises of the pro-life position would logically entail some unacceptable conclusion; note that pro-lifers do not in fact support this conclusion; and infer triumphantly that they do not believe what they claim to believe. At this point the pro-choicer can score pro-lifers for hypocrisy, divine "real" motivations for their position that reflect badly on them, refute their "real" premises (which always turns out to be easier than refuting their stated premises), or combine all three.
It is, however, a curious argument for Bennett to make, since he favors expanding legal protection for the unborn. If such efforts were based on the premises that fetuses are living human beings and that direct abortion is therefore unjustified killing, those efforts would be open to the same objection Bennett makes against the Human Life Amendment. Odder still, Bennett does not argue against those premises. If the premises were true and they entailed the conclusion he believes they do, we would just have to swallow hard and work to apply first-degree murder charges in abortion cases.
Yet the conclusion, that abortionists and their clients should receive the penalties meted out to first-degree murderers, does not logically follow from the premise that abortion is unjustified killing. Nor were such penalties historically included in American anti-abortion laws based on that premise.
One might wish to have lower penalties for abortion than for first- degree murder for a number of reasons. The existence of profound moral disagreement on the issue does not relieve us of the obligation to defend a basic human right; but it does suggest that the punishment for violations of that right should be no harsher than required to deter them. In addition, pro-life legislators have to take seriously the law's function as a teaching instrument, particularly in a legalistic culture. That function is one reason anti-abortion laws are necessary. But the law imposed on our nation by judicial fiat in Roe v. Wade has, in effect, taught people for almost a quarter century either that they have a right to take human life or that abortion is not the taking of human life. In rectifying this wrong, the law should avoid harshly punishing those who have learned this false lesson all too well. Eventually it may be necessary and proper to stiffen penalties against abortionists; but it is legitimate to take into account that the moral and intellectual weaknesses that make people willing to consider or perform abortions are themselves in part a consequence of our laws and institutions.
Abortionists could be considered less culpable or malicious than first- degree murderers: concern for the pregnant women's dire circumstances or a sincere but misguided view of the status of unborn human beings induce some physicians to perform abortions. Furthermore, the punishment could be scaled to fit the social consequences of the crime: ordinary murder typically causes more pain among the family and friends of the victims than does abortion; the risk of murder decreases the ability of people to participate in and move through society without fear; and if ordinary murder were not severely punished, people's efforts to protect themselves could end up endangering others.
And there are still other considerations. Lower penalties could increase the effectiveness of anti-abortion laws by making juries more likely to convict. Women seeking abortions could be (and historically often were) exempted from penalties altogether, due both to mitigating circumstances-a great many women are really secondary victims of the abortion industry-and to the need to get testimony to help convict the abortionist.
The only conclusion that does logically follow from pro-life premises is that governments have a duty generally to prohibit abortion and to enforce that prohibition to the best of their ability. Prudential judgments determine how that should be done. Jail terms for performing illegal abortions cannot be rejected in principle. But the penalty could be as mild as a fine. It could well be that the mere revocation of medical licenses would be sufficient to deter abortionists, particularly if backed up by laws that would impose heavy fines and even imprisonment for people who perform abortions without medical licenses.
It is not the prohibitionists but their critics who face a logical dilemma. If abortion does not warrant prohibition by the state, it can only be because the unborn are not living human beings with a right not to be killed. And if they are not, then it is difficult to see why public policy should be concerned to deter abortion at all. It is, after all, the status of the fetus as a distinct, unique human being that leads even pro-choice writers such as Naomi Wolf to acknowledge that abortion-unlike, say, appendectomy-raises a serious moral issue.
The pro-lifers whose views we have been criticizing here should be commended for highlighting the importance of doing what can be done to create a culture friendly to unborn life. But culture and law do not exist in two separate, hermetically sealed containers, as some seem to think. As Marvin Olasky has observed, cultural transformation and legal reform are mutually reinforcing, not mutually exclusive. The proposition that pro-life supporters should try to change the culture and not the law is true in what it affirms and false in what it denies. The truth is that legal reform is required as a matter of both political justice and cultural transformation. The pro-life movement cannot possibly be strengthened by abandoning its core belief about the status of unborn human life.
Peter L. Berger
Much of social life is explained and justified with cliches-those little capsules of folk wisdom that suggest some fact of life is normal or even morally just. It could not be otherwise. If we had to figure out from scratch what each situation in our life means, we would all go crazy. The fully reflected-upon life may be a philosopher's ideal; for most of us it would be a prescription for madness. The effectiveness of a cliche generally depends on its not being reflected upon: some cliches may survive reflection-some folk wisdom is truly wise-but many cliches crumble as soon as one starts to think about them.
The cliches that proliferate in public life tend to legitimate existing political arrangements. A frequently reiterated clichein Western democracies, particularly in the United States, is the statement that ours is "the rule of laws and not of men." Commonly uttered with pride, the statement implies that we have a morally superior arrangement for the ordering of common life. Our sense of moral superiority is expressed not only in talk about domestic affairs, but also in discussions of foreign policy where it is supposed to define a moral mandate to spread the rule of law (by persuasion or more robust means) to benighted regions where it does not as yet prevail.
This "rule of law" cliche, however, does not withstand reflection very well. Even a moment's thought leads to the recognition that there are some very bad laws, even in democratic countries, and that good men will be moved to disobey these laws if they are unable to change them. There will be the further observation that, as a general rule, laws will be good if they are made by good men. But matters become even more complicated as one continues to reflect.
Law, at least as it has developed in Western civilization, is abstract and impersonal. It seeks to avoid both the irritating complexity of concrete circumstances and the personal prejudices of those charged with the administration of justice. An alternative conception of law, far more common than ours in human cultures, is to trust in men (perhaps not in all men, but in those charged with being judges) and their capacity for moral discernment. In our legal system, typically the first question asked of any potential juror is whether he knows any of the defendants or litigants; a positive answer disqualifies the juror, just as the judge must recuse himself if he knows any of the disputing parties. An episode from British colonial history illustrates this dichotomy. Wherever possible, British colonial authorities continued to utilize indigenous law for the routine administration of justice. In Africa this generally meant that traditional chiefs continued to sit as judges in most civil cases. Usually, of course, they knew the litigants very well. In one African country (if memory serves, it was Nigeria), the British found that it was too expensive to pay every little chief for serving as judge in his tribal village; they chose some chiefs to travel over a wider territory and dispense justice beyond their traditional jurisdiction. One such chief, upon being given this assignment, exclaimed in dismay: "How can I judge these people? I do not know them."
Formal law, as we know it, is the inevitable result of a decline in trust. One is tempted to say that it could not be otherwise in a complex modern society, but this too is open to doubt. Highly complex modern societies in East Asia function very well with much less formal law than we regard as indispensable. Japan, arguably the most modern society in the world, gets along with a breathtaking scarcity of law courts and lawyers. Overseas Chinese business culture, one of the most effective in the contemporary global economy, abhors contracts and relies on the word of trusted partners. Even in the United States the diamond trade, which involves many millions of dollars, operates on the basis of handshakes. Nonetheless, in Western countries and especially in the United States, it is very difficult to imagine a situation in which an expansion of trust could lead to a shrinkage of law-which is a far cry from the cliche's implication of moral progress.
We have not only the rule of law but its ongoing expansion. In one area of life after another, this expansion marks a victory of procedure over moral judgment. Formal law expands as legislatures continue to grind out statutes and the courts pronounce more or less imaginative interpretations of these statutes. One may recall Mark Twain's comment that no man's property or liberty is safe while the legislature is sitting. The United States is the most litigation-prone society on earth. Lawyers proliferate and become participants in more and more transactions between individuals, despite their well-known unpopularity (witness all those lawyer jokes). But law-like procedures have expanded far beyond the official legal system. Every self-respecting profession must have its so-called code of ethics. Since no one knows any longer what, say, a physician should morally do, his professional association obligingly fills the gap by providing a code of behavior.
"Ethics" here is a procedural substitute for moral judgment: Follow the procedure, and no one will be able to blame you (or-not so incidentally- be encouraged to sue you). "Medical ethics," "business ethics," "military ethics," and, for all I know, the "ethics" of podiatrists and temporary typists all supply procedural manuals that serve in the absence of moral convictions. (This is not a wild flight of fancy. The other day, in my university, I overheard a full-time secretary reproaching a part-time receptionist for "unprofessional conduct.")
In the course of my own career in the academic world, procedures have multiplied astronomically. The reason for this is, quite simply, that no one is trusted any more to make an intelligent judgment (let alone a moral one) in cases of hiring, promotion, tenure, or even in grading an undergraduate examination. Decisions on promotion and tenure are routinely based on such procedural criteria as number of publications in peer-reviewed journals and scores of approval in student evaluations (and never mind that the reviewing "peers" are typically closed cliques of ideological or methodological sectarians, and that the evaluating students are barely one step beyond illiteracy). A great achievement of the feminist movement has been to introduce contractual thinking into the heart of private life, between lovers and spouses, parents and children.
Some of these excesses may yet be rolled back. Some particularly surreal laws may be revoked. Some lawyers may have to look for more productive employment and some professors may regain a measure of confidence. On the whole, however, we will have to resign ourselves to the rule of law. But let's not pretend that this is moral progress.