Excellent insights and, unfortunately, prescient words from David S. Crawford writing in Humanum in 2012 on same-sex unions and two versions of tolerance:
This last point concerning the legal value of moral disapproval of a majority suggests another theme in the courts’ reasoning–the sharp distinction between public reason and private morality. The claim of the traditional arguments’ irrationality is of course made in a civil and legal context. The courts emphasize repeatedly that they are only addressing “civil marriage,” that is to say, marriage insofar as it is a juridical creature of state legislation. This limitation allows them to say that they are not mandating a moral position, but only making a judgment about what the law requires. “Our obligation is to define the liberty of all, not to mandate our own moral code” is a claim piously repeated by the courts. The Goodridge court appears at least to acknowledge the legitimacy of citizens’ deeply help convictions on both sides of the “gay marriage” issue. The implication would seem to be, then, that the issue of “gay marriage” transects two distinct domains–the public and the private–and that, if the traditional arguments are not civilly or legally rational, they may be rational — and therefore morally sustainable — in contexts other than civil or legal one, where broader religious and moral starting points are relevant and may be decisive.
The courts seem, therefore, to offer a kind of settlement of the issue, by means of the distinction between the public and the private. But this “settlement” trades on an ambiguity in the idea of “tolerance.” The ostensibly non-moral notion of tolerance proffered by the courts would treat the concept as merely legal one. It would have us suppose that tolerance means government neutrality to two positions, a neutrality that would leave in place a kind of modus vivendi between irreconcilable worldviews. The question then is whether tolerance can really be thought of in this way, or whether it does not slide into another sense of tolerance, one which is thoroughly moral. This latter would see tolerance not as an agreement to disagree for practical and political reasons, but as signifying an imperative for the acceptance of diverse views and ways as equally valid.
This second version of tolerance, then, offers a standard for judgement concerning the proper disposition one has toward all others within society. Anyone who does not accept this moral standard sets himself beyond the pale of legitimate public discourse. Where this happens, a given private position might be politically and legally “tolerated” on a conditional basis due to prudential considerations, such as preserving countervailing principles of autonomy (e.g. “religious freedom”) or the undesirability of intruding too overtly in domestic or ecclesial matters. This second version would nevertheless seek gradually to instill tolerance as a personal and public virtue, one that would dictate a moral and finally anthropological position regarding questions such as that of “gay marriage.” It would seek to inculcate not only a begrudging acceptance of the de facto presence of an opposing worldview, but the actual embrace of the new idea of marriage–that “same-sex” and “opposite-sex” marriage are essentially and morally equivalent and should be accepted as such.
If the courts at times speak as though they have the “merely” legal notion of tolerance in mind, in reality of course they have the second, and necessarily so. This is because tolerance in the first sense can only be an illusion in issues that involve beliefs about vital human matters. These matters that necessarily involve our deepest convictions about what humanity is. Disagreement on such points cannot help but touch on the foundations of culture and society. In a moment we will see that an anthropological shift is underway. But, for now, if the arguments against “gay marriage” are publically irrational, that must necessarily mean that they are also publically bigoted. But bigoted public arguments are in fact immoral public arguments, and this means that the private position will always be at least publically immoral. But can there be a position that is publically immoral and yet privately moral? If issues such as “gay marriage” necessarily imply a certain conception of society, then rejection of the conception will appear to be antisocial, uncivil. And so it turns out that the concept of “tolerance” is in fact a demand of conformity in moral and anthropological belief.
In short, the tolerance that really is proffered is provisional and contingent, tailored to accommodate what is conceived as a significant but shrinking segment of society that holds a publically unacceptable private bigotry. Where over time it emerges that this bigotry has not in fact disappeared, more aggressive measures will be needed, which will include more explicit legal and educational components, as well as simple ostracism.
The reason many corporations, members of the media, and ten thousands angry tweeters do not feel the need to examine the arguments for religious freedom is because they don’t think any rational arguments can be made in this instance. Traditional views about marriage are so 1990’s and so obviously immoral that anyone holding such views today does not deserve our respect, let alone any whiff of legal protection. We should not expect our ideas to be debated fairly when it has already been concluded that there are no ideas to consider, only bigotry to suppress. As I’ve said before, why argue about dogma when stigma will do?