Johns, Jasper (b. 1930) © VAGA, NY

Flags. 1968. Lithograph, printed in color, irreg composition: 34 5/8 x 25 7/8″; irreg sheet: 34 5/8 x 25 7/8″. Gift of the Celeste and Armand Bartos Foundation. (291.1968)

Location: The Museum of Modern Art, New York, NY, U.S.A.

Photo Credit: Digital Image © The Museum of Modern Art/Licensed by SCALA/Art Resource, NY (ART193346)

Abstractions are important, but when they are too far detached from the mulch of things they become pabulum. If the abstractions are firmly rooted in Tradition, it becomes harder to both question them and show that they belong to another age that makes little sense in our time. Obama’s speeches are glorious. They are a joy to listen to and to read later. He is able to dig deep into the rich rhetorical tradition of the Christian world and of the Founding Fathers, and to articulate a call for awakening that is powerful. But how far is it from our world, from our time? There is an anachronistic edge not only in the cadence, but also in the logic—nothing here about the desertion of populations by the government, the allowance of the few to dominate the wealth produced by the many, and the turn to violence when other means wither in the quiver. Ethical systems cannot be built upon each other without any consideration of social transformations. It is not language alone that we must attend to, but even more so to the social context of the language.

Celebrations of “American character” and of the “God-given promise that all are equal” are emotive, powerful symbols of an age that is now no longer with us. Ours is the age of the jobless economy, where character and equality removed from structural impedimenta are cruel sentiments. In 1976, the Nobel Prize in Economics went to Milton Friedman for, among other things, his pioneering work on the “natural rate of unemployment.” Friedman argued that if the economy neared full employment, prices would rise and create the inflationary condition for social disaster. For which reason, he argued, it is a good thing for the government to manipulate monetary policy to maintain a certain section of the population outside the workforce. This is just what U.S. monetary policy is all about, keeping a substantial section of the population away from the Bureau of Labor Statistics’ employment numbers.

Around the time when Friedman’s ribbon was pinned to his tuxedo lapel, the American workforce underwent a dramatic shift: developments in communication and transportation, as well as new regimes of trade policy, allowed firms to disarticulate production to various points of the planet, taking advantage of lower wage costs to increase their profits. Rather than invest in the aging U.S. industrial sector, capital fled to the U.S.-Mexico border, to East Asia, and to other places, building factories in “export processing zones” that took advantage of under-organized (mainly female) migrant workers. The U.S. economy entered the phase of jobless growth, where the Gross Domestic Product grew as a result of the dramatic increase in the financial sector (a sparse employer), and the demise of industrial production produced mass joblessness at a scale not known for decades.

In 1976, only half of the high school graduates went to college, and for those who did not, the job situation was bleak. It would continue to be abysmal for their lifetime, as full-time union wage jobs declined and the minimum wage stagnated below 1973 levels. Because of this, the tragedy of the civil rights struggle was that it won just when privatization, the demise of social welfare and globalization eviscerated the chance for people of color to enjoy the statutory equality that they had just won. It was in this period that the Urban League ruefully reported, “More blacks have lost jobs through industrial decline than through job discrimination.” Globalization and NAFTA hurt these millions of Americans in ways that have not been fully appreciated by the intellectual elites. For those left out, refuge in the abstractions of “American character” and the “God-given promise that all are equal” is essential for their psychosocial well-being, but they are insufficient as a program for social development. When the politically-crafted economy is wedded to joblessness and the “natural rate of unemployment,” the promise of equality is cruel beyond measure. Anachronistic abstractions drawn from the elite Founding Fathers helps with morale, but it does not conform to the needs of the multitude, and to the multitude’s common sense.

A new set of civic virtues that are consonant with our reality would need to acknowledge that our current politically-defined economy has created disposable people—those who are in the criminal justice system (7.2 million), those who live in the forsaken “inner city” slums, those who have been unemployed for so long that they have abandoned the system entirely. Children among the disposable class who are not incredibly self-driven are cast off into proto-jails (with metal detectors and standardized tests, forms of surveillance that prepare them for prison and the low-end service sector). The “common good” that binds the citizenry together has been broken, with the peoples of the gated community and those of the slums driven asunder to the point where their reconciliation is near impossible. The first gets chills to hear talk of character and noble ideas; the second is comforted, but is also told in the same breath that they must take “personal responsibility” for their ills, and that they must throw away the cold Popeyes Chicken and turn off the television to move their children from the ranks of the disposed. Meanwhile, the Food and Culture industries are granted dispensations from taxation and from regulations in order to pollute society with the very things that the elect warn the population against. Here again is the cruel illusion, as the disposable are told that the only things that give them comfort are bad for them. Nothing else is on offer: no hope of structural reform. There is no new ethic in what Obama has to offer as yet, no new civic religion that confronts the constraints of our time. There is hope, because, without the promise of hope, reality would be unbearable. Obama has reaffirmed the necessity of hope, but as yet there is no new covenant. If that does not come, then bewilderment.

[See David Kyuman Kim's introduction to "These things are old," a conversation about Obama, civic virtues and the common good at The Immanent Frame]

From both the perspective of the state and its people Turkey’s stance on basic human rights is complex. On the one hand, Turkey is a functioning parliamentary democracy with regular, free, fair elections in a region where this is still a rarity. Despite important limitations, the Turkish press is both broad and diverse. If most of the mainstream Turkish media tends toward populist nationalism, there are a number of influential sources (mostly print) that persistently and successfully critique the great and the powerful.

On the other hand, restrictions on freedom of expression and limitations on the press, while enforced only sporadically, are enforced nonetheless, and have a significant cooling effect on public debate. More important is the extent to which the Turkish public accepts these restrictions and other basic limitations on human rights. Among the myriad problems facing Turkey, only one percent of the population cites the justice system as the most important problem facing the country, and only two percent cite democratization. The fiercely nationalist quality of much of Turkish public discourse makes many types of debate suspect, with even the most basic criticisms often seen as treasonous. Similarly, a recent poll suggests that Turks are remarkably accepting of the state’s use of torture, with a slight majority favoring its limited use in terrorism cases and as much as eighteen percent believing that the state has the right to use it freely. Support for a total ban on torture in Turkey was lower than in any of the countries polled in both the Middle East and Europe. At the same time, despite frequent reports of abuse by security services, the military remain far and away the most popular institution in the country, with eighty-one percent of the population expressing confidence in them.

The painful reality is that domestic pressure for expanded freedom of expression, minority rights, and protection from abuse by members of the security services is extremely limited. There are important NGOs working to document human rights abuses and defend basic freedoms in Turkey, but they represent an embattled fringe and have a limited role in popular discourse.

The AKP and the dynamics of human rights reform

Turkey’s human rights record has generally improved under the AKP, but it is hardly spotless. Restrictions on expression and assembly continue, torture still occurs, and security officials still act with relative impunity. In fact, after some years of significant improvement, general human rights conditions in Turkey have begun to trend downward again.

Given the lack of popular domestic pressure, however, it is the very real improvements in Turkey’s human rights record since the AKP first came to power in 2002 that most need to be explained. By understanding the dynamics of the AKP’s efforts to improve Turkey’s human rights situation, more recent setbacks can best be understood.

Although previous governments had made efforts to address Turkey’s human rights record, none were willing to engage in the broad, transformative effort envisioned by the AKP. That the AKP was willing to do so was rooted in both political philosophy and political calculation. Perhaps the largest element of this willingness had to do with their distance from traditional state institutions. Suspect because of their religiosity, members of the AKP maintained the fierce nationalism evident throughout Turkish society but were less inclined to venerate the state and state institutions. As Jenny White has deftly shown, the roots of the AKP came from grassroots mobilization that simultaneously bypassed and fused with state institutions.

The AKP also reflected broader changes in Turkish society that had been in motion since the late eighties. One element of this was the indirect role of the West: a large number of the young technocrats who supported the AKP in its rise to power were young men and women who had spent significant portions of their youth in Europe or the United States. In their time abroad they had experienced an environment in which they could express their religiosity more openly than they could in Turkish professional life. These individuals, comfortable with pluralism but personally devout, formed an important technocratic core for the emerging leadership of the AKP. The diversification of Turkish media allowed for the development of a sophisticated Islamist press, while the opening of the economy and expansion of education created a large and devout middle class. Finally, a number of NGOs developed that were simultaneously distinctly religious in character and dedicated to the issue of human rights in Turkey. Of these the most prominent is Mazlum-Der, founded in 1991, which is now an important element of Turkish human rights activism. While these groups were not necessarily large, they played an important role in merging the language of human rights with the specific concerns of Turkey’s devout and in building bridges with secular human rights groups both in Turkey and overseas.

The AKP developed as a party willing to overturn long held certainties of the Kemalist state. In foreign policy, Turkey simultaneously improved relations with its Arab and Iranian neighbors and made important steps toward resolving the continued division of Cyprus. The AKP’s most important efforts, however, were in the attempt to move forward with Turkey’s long held aspirations at European accession, and it is here that the AKP’s foreign and domestic policy are most clearly merged.

The process of European accession provided the AKP with a number of important benefits. First, by being more “pro-European” than any of the secular opposition parties the AKP was able to support its claim that it was not an Islamist party, but rather a forward-looking party of the center-right. Second, the policy was electorally savvy because the proposition of European accession was extremely popular at the beginning of the AKP’s term in office and, despite considerable setbacks, maintains considerable popularity to this day. Third, progress in European accession helped lure in considerable foreign investment, which in turn served as the engine for rapid economic growth through the first years of AKP rule. Fourth and finally, the process of liberalization that the European Union demanded would also serve the AKP’s domestic interests by undermining the power of Kemalist strongholds in the bureaucracy and military and by opening greater opportunities for religious expression that were expected by the AKP’s base.

Whether one believes the AKP acted primarily from idealism or from political calculation, its early program of liberalization was impressive. As Sultan Tepe shows, bans on publishing and broadcasting in Kurdish were lifted, citizen access to government documents was broadened, and the penal code was reformed. Quietly, Kurdish villagers who had been forcibly relocated in the previous decade were allowed to return to their homes. Torture and harassment became less frequent. As one Kurdish activist told me, “When we have a gathering, we are still arrested. But there isn’t torture like there used to be.” The AKP was initially optimistic that the broadened freedom to use the headscarf in public institutions would also be addressed under a “European umbrella”; however, in 2004 the European Court of Human Rights ruled that banning students from wearing the headscarf in the university did not constitute a limit on religious freedom. Thus, while the general human rights record of Turkey was in many ways improving, the AKP was failing in addressing the one issue that most concerned its base.

Whether it was because they were opposed to the reforms that the AKP was implementing or because they saw these reforms as a cover for an Islamist agenda (or both), both the parliamentary opposition and Kemalist elements in the military and courts worked to undermine the AKP reform agenda. Military and security services were involved in the 2005 bombing of a Kurdish bookstore in the town of Şemdinli, which killed one and injured others, and they seem to have been at least indirectly involved in the assassination of Armenian journalist Hrant Dink in 2007. These attacks, as well as a far broader pattern of harassment and threat, served three purposes simultaneously: they demonstrated the limits of AKP power, they undermined the AKP’s international support, and they served as a fundamental damper on those who wished to take advantage of the AKP’s liberalization program. Prosecutors as well as private lawyers used the loosely framed Article 301, which makes “denigrating Turkishness” a crime punishable by imprisonment for up to three years, as well as similar statues in the same way. These cases carried a message for the Turkish public, which was underlined by the opposition in Parliament: that the AKP, with the support of Western powers, was intent on undermining Turkey through criticism of its greatest heroes and most venerated institutions.

As European accession faltered, the AKP became more defensive in the face of these attacks and less ambitious in its reform efforts. It allowed the case against the soldiers implicated in the Şemdinli attack to be tried in a military rather than a civilian court, thus limiting the possibility that high level officers would be implicated. At the same time, the AKP rank and file seemed to be as leery of ridding themselves of 301 as the opposition. The government suggested various changes in nuance to Article 301 rather than doing away with it altogether.

The 2007 elections and after

In the spring and summer of 2007, a constitutional crisis over the selection of the next president resulted in the AKP calling early elections, which they won in a landslide. Initially, at least, the AKP seemed to be ready to renew a program of broad reform and even began discussions of rewriting the constitution, originally written under the auspices of the military following the coup d’état of 1980.

It was not to be. Increased separatist violence effectively forced the AKP to give in to the military’s demand for a more aggressive policy with regard to the Kurds, including incursions into Iraqi Kurdistan. More tellingly, as Jenny White described in her February article for The Immanent Frame, the AKP made an alliance with the militantly nationalist MHP, in which the MHP agreed to lend its parliamentary support to a broadening of freedoms for the headscarf, in return for which the AKP would drop its plans for a far wider program of liberalization. The decision suggests both the centrality of the headscarf issue for a significant section of Turkish society and the limitations of the AKP’s own commitment to a broad human rights agenda for Turkey.

Ironically, the alliance bore little fruit. The constitutional amendment lifting the ban on headscarves in the universities, which the AKP and MHP had passed, was struck down by the Constitutional Court in June, 2007, while a case which threatened to ban the AKP itself continued to wind its way through the legal process. In the end the AKP avoided, by the narrowest of margins, an outright ban. It emerged, nonetheless, significantly chastened by the experience.

In the intervening months, AKP reform efforts have been markedly muted. Rather than move forward on human rights or constitutional reform, it has turned its attention instead to foreign policy initiatives, such as its recent overtures to Armenia, and to quietly supporting the on-going court case against the ultranationalist Ergenekon network, which, not incidentally, seems to have included many of the AKP’s most militant critics. The unraveling of the Ergenekon conspiracy is, without question, a remarkably important component of Turkey’s democratization.

The recent past has taken much of the luster off of the AKP’s record for human rights reform. Many human rights advocates still see the AKP as the best hope for broad reform in Turkey. Nonetheless, the AKP’s record shows that its commitment to human rights, while real, is limited and contingent. They are not, to be sure, the secret Islamic revolutionaries envisioned by the Turkish military and some of conservative commentators in the United States. But neither are they the shining model for Muslim liberalism that some have imagined them to be.

The shift toward private, contractual ordering of romantic and familial relationships in recent years has prompted such confusions.  The proliferation of a plethora of possible familial arrangements, including traditional marriage, open marriage, same-sex marriage, polygamy, polyamory, cohabitation, nonmarriage, and others has raised new questions about the nature (and future) of marriage vis-à-vis its myriad alternatives.

It is tempting to view this array of alternatives as yet another manifestation of what eminent sociologist, Robert Bellah, and his colleagues famously identified as the “expressive individualism” of contemporary life.  Individuals increasingly see relationships, even intimate romantic and familial ones, as venues for self-expression and self-constitution of identity.  This is consistent with our culture’s reigning philosophy of political liberalism, with its emphasis on autonomy, privacy, and choice.

But relationships do not form or exist in a vacuum.  Self-expression requires an audience. Relationships require recognition.  They are usually based on longstanding social scripts, or what some might call “tradition.” The decision to marry indicates a certain level of commitment with which partners enter the relationship.  If and when that relationship ends, a loss is seen to have occurred.  To take the example with which these reflections began, the demise of a serious relationship often earns one a higher permissibility of grief and entitlement to social sympathy than the termination of a more transient relationship.

The significance of recognition also seems to underlie the arguments of the plaintiffs and the judgment of the court in the recent decision by the Supreme Court of California upholding same-sex marriage.  Therein the California court focused expansively not only on the right to same-sex marriage, but also on the crucial forms of recognition that accompany that right.  It returned over and over to the question of whether the state’s statutory scheme gives both heterosexual and same-sex couples the right to enter into an “officially recognized family relationship,” a phrase that echoes like a mantra throughout the decision.  It determined that a schema that would officially designate heterosexual relationships as “marriages” and same-sex relationships as “domestic partnerships” violated the California Constitution.

Words like “official” and “designation” are consummately bureaucratic terms.  But substitute “recognition” and “naming” in their place—”a rose by any other name”—and the weight and significance are more apparent.  Naming is definition.  The power to name is the power to norm.  And recognition is a relationship, not only between individuals and the state, but among people in society.

It would seem that it was with such concerns in mind that the Court insisted over and over on the legal and social significance, as well as the respect and dignity, of the “officially recognized and protected family,” affirming the validity of the gay and lesbian plaintiffs’ insistence on “marriage,” as opposed to “civil unions” or “domestic partnerships,” or some other statutory designation.  Even though the Court declined, in discussing the various “distinction[s] in nomenclature,” to rule outright “whether the name ‘marriage’ is invariably a core element of the state constitutional right to marry,” its repeated emphasis on the “official recognition” of families as a means of conferring dignity, respect, and equality upon them inclines in that direction. Ultimately, the Court stood wholesale for the right to marry as the “right of an individual to establish a legally recognized family with the person of one’s choice, and, as such, is of fundamental significance both to society and to the individual.”

At times it has been noted that same-sex partners seeking marriage are playing the role of “new traditionalists.” Not all gays and lesbians want to be married—nor do all heterosexuals for that matter.  Again, to take up the opening example, there having been no rings on fingers or wedding invitations, the friends and family of the woman in question may simply have assumed that the relationship was of a casual nature.  In fact, some of the most interesting recent arguments in family law have had to do with proposals to treat relationships that “walk and talk” like a marriage as marriages in ways that risk imposing on those relationships more social assumptions and legal obligations than the partners themselves might wish to bear.  Sharing a bed is one thing, sharing student loan or credit card debts is quite another.

So when we talk about relationships, we need also to talk about recognition.  Relationships may be crucial to our individual identities.  They may, indeed, be arenas of self-expression.  But when relationships demand something of the society beyond the couple—legal validity, religious blessing, economic benefits, or social niceties—we need to take into account not only the individual intentions and expressive capacities of the parties, but also their need for recognition and the inclination and capacity of the wider society to provide it.  Individuals may seek to privately order their relationships in all sorts of ways, but absent social scripts and frameworks to recognize those orderings, the response from the wider society from whom recognition is sought might be, to paraphrase the query from actor Robert De Niro’s famous mirror soliloquy as the character Travis Bickle, in the movie “Taxi Driver”: You talkin’ to us?

Posts by Stephanie Coontz and Tey Meadow and Judith Stacey reveal the multilayered and complex history of marriage and Christianity in Europe and America, and its culmination in what Coontz remarks was an “untraditional” shift by the state to make marriage a privileged status that is attached to a large number of social and economic benefits (and constraints). In this vein, I will turn my attention to the less-known marriage promotion movement in the United States, in order to shed further light on how state and religion work together to define and protect the boundaries of marriage, and what this movement might mean for the future of marriage equality.

In the late 1990s, a coalition of religious and civic leaders, public officials, family therapists, educators, researchers, and others launched the “marriage movement,” which supports government policies to promote marriage under the philosophy that reducing the rate of divorce and single parenting and strengthening marriage will also alleviate poverty. These policies were codified into federal law in the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996. Ending over sixty years of federal welfare benefits to poor families, PRWORA created discretionary state block grants under the rubric of Temporary Assistance to Needy Families (TANF) and specifically designated marriage promotion as a sanctioned use of federal funds. With the election of President George W. Bush, federal funding for marriage promotion has grown substantially. The Healthy Marriage Initiative within the Administration for Children and Families has directed federal money to promote marriage and fatherhood programs, and in 2005, Congress passed the Federal Appropriations Act that includes more than $500 million annually for marriage promotion.

On the surface, the philosophy of marriage promotion appears benign and even salutary. President Bush’s Healthy Marriage Initiative website describes the goal of marriage promotion: “To help couples, who have chosen marriage for themselves, gain greater access to marriage education services, on a voluntary basis, where they can acquire the skills and knowledge necessary to form and sustain a healthy marriage.” Diane Sollee, who organizes the annual SmartMarriages conferences—the meeting ground of marriage promotion advocates—helped to inaugurate what is now known as marriage education, the idea that couples can learn skills to help them communicate more effectively and manage conflict. From this angle, the goal of offering marriage education appears beyond critique. The government is providing a much-needed service to give couples the tools to form “healthy marriages.” Below the surface, however, the story is more complex.

The marriage promotion movement blends together various state and community actors into what sociologist Scott Coltrane calls a “hybrid political-religious grouping.” While it is true that the movement’s diversity belies the simple religious “fundamentalist” classification, marriage promotion draws religion and science together in novel ways. Relying on social science evidence, it presents a secular argument about the negative social consequences of the weakening of marriage as justification for using federal money to offer marriage education, taught in many cases by conservative religious volunteers in secular and religious environments. These educators teach about the superiority of one family form, the one religious conservatives call “traditional marriage.”

In 2004, I conducted ethnographic research for ten months in Oklahoma on its statewide marriage initiative. The state became a pioneer of marriage promotion in 1999 when the Oklahoma Department of Human Services (OKDHS) committed $10 million from its federal TANF block grant and contracted with Public Strategies, Inc. (a private, for-profit firm) to develop and manage the Oklahoma Marriage Initiative (OMI). One of the initiative’s first strategies to strengthen marriage was a drive for religious leaders to sign the Oklahoma Marriage Covenant, a contract asking pastors to make a commitment to set aside a “preparation period” of four to six months before performing a wedding and to require marital preparation classes. It reads: “I believe that marriage is a covenant intended by God to be a lifelong relationship between a man and a woman. I promise to God, to my family, and my community to encourage couples to remain steadfast in unconditional love, reconciliation, and sexual purity, while purposefully growing in their covenant marriage relationship.” In 2004, OMI estimated signatures of over 1,200 pastors.

The state mingled public policy and religion to provide marriage education using federal TANF money to many white, middle-class, heterosexual couples. An OKDHS supervisor told me that the initiative had difficulty getting services to the low-income population. She attested to the fact that the initiative was largely built through Protestant churches and provided services to the middle class: “I kept thinking, well, this is more of a Protestant Oklahoma Marriage Initiative, but no one wanted to deal with that.” The 1996 PRWORA law sanctions this redistribution of TANF funds to “encourage the formation and maintenance of two-parent families,” a provision that applies not only to needy families but also to more privileged ones. Mixing religion and public policy to disseminate marriage education is not particular to Oklahoma, but is also true of other government-funded marriage programs, including one in Orange County, California.

While religious conservatives balk at their loss of religious liberty under an increasingly wide array of antidiscrimination laws in relation to non-heterosexuals, it is significant that government marriage promotion policies combine religion and science to extend the privileged status of marriage to white, middle-class, heterosexual couples. This analysis speaks to the demands that social justice will require of the movement for marriage equality. Even as the battle against “separate but equal” recognition of same-sex couples gains legal footing, those fighting for marriage equality must take into consideration the consequences of the movement on other forms of social inequality. On the one hand, as states move in the direction of Massachusetts and California, it will become more difficult for government, politics, and religion to unite in an effort to promote heterosexual marriage as the superior family form. On the other, as Meadow and Stacey argue in their post, it does not offer justice to those outside the boundary of marriage who are barred from accessing its socioeconomic benefits, whether straight or gay. Thus, there are good reasons to expand the fight for marriage equality to consider the option offered in the California Supreme Court decision, for the state to eliminate the term “marriage” altogether and allow religious and secular communities to offer their own “definition.” This solution will not eliminate legal conflicts over antidiscrimination and religious liberty, but it might provide for a more just world.

As Stephanie Coontz signals in her post on “traditional” marriage, a long history of state intervention into religious doctrinal disputes underlies the installation of monogamous, heterosexual Christian marriage as the singular government-sponsored family form. These interventions contained often explicit racial messages. In Public Vows, historian Nancy Cott persuasively argues for the centrality of this marital ideal to the founding project of the U.S. republic and its manifest destiny mission. Voluntary monogamous marriage signaled democracy and the racial superiority of its practitioners. The practice of Mormon polygamy, therefore, when it surfaced among white Christians in the mid-nineteenth century, directly threatened this self-conception. Legal scholar Martha Ertman demonstrates that opponents portrayed Mormon polygamists as race traitors. Eradicating plural marriage became crucial to establishing a uniquely American (coded white and Christian) national identity. Rendering Mormons “metaphorically nonwhite,” Cott suggests, the federal government relentlessly pursued this goal, adopting extreme, punitive measures, including raids to “rescue” women and children from their polygamous families.

In 1856, the new Republican Party pledged to extinguish the “twin relics of barbarism,” polygamy and slavery. Between 1854 and 1887, Congress passed a series of acts to criminalize bigamy and disenfranchise the Mormon Church and its followers. In the historic Reynolds case in 1878, the Supreme Court outlawed bigamy as an “offense against society.” Associating it with “barbaric African and Asiatic practices [...] odious to the northern and western nations of Europe,” the Court denied Mormon polygamy constitutional protection as a free exercise of religion. After the federal government conditioned the granting of statehood to Utah on the repudiation of Mormon polygamy, church officials finally capitulated. The 1890 “revelation” that terminated LDS plural marriage spawned the breakaway, underground FLDS sect from which the now infamous Yearning for Zion Ranch in Texas descends.

Sporadic raids, prosecutions, and court rulings against polygamy have continued ever since. As late as 1946, the Court recuperated Reynolds by upholding the conviction of a Mormon polygynous husband under the Mann Act: “The organization of a community for the spread and practice of polygamy is, in measure, a return to barbarism. It is contrary to the spirit of Christianity and of the civilization which Christianity has produced in the Western world.” Widespread efforts to prosecute practitioners of polygamy culminated in the infamous Short Creek raid on FLDS communities in 1953, an effort to rescue women and children from their polygynous families that was strikingly similar to recent events in Texas. Short Creek proved such a political debacle for the government, however, that five decades of unofficial state accommodation to the open secret of Mormon polygamous enclaves in the West ensued before the recent, likewise ill-conceived, raid in Eldorado.

Televised images of the distraught FLDS mothers—without exception white women donning uniform homemade nineteenth-century prairie dresses and blonde-braided coiffures—evoke this unfamiliar, and indeed incongruous, history of the racial politics of plural marriage in America. Early LDS polygamy may have spelled racial (and religious) treason to the white Christian contemporaries of the Latter Day Saints, but the Mormons themselves were white racial (and racist) purists. Brigham Young taught that whites were “pure” and “delightsome,” while blacks were the “unrighteous,” “despised” and “loathsome” descendants of Cain, the cursed murderer of Abel. State coercion convinced the official Mormon Church to modernize its marriage doctrine in 1890 by repudiating polygamy, but the state did not demand or invite the Mormons to repudiate their racism. The LDS “revelation” that ended racial apartheid in the church did not occur until 1978, and it provoked yet another schism in the Church, followed by a small exodus among believers who joined the lily-white FLDS communities.

If slavery was the barbaric twin of polygamy for many nineteenth-century Christians, same-sex marriage seems to be supplanting it in the eschatology of contemporary Christian conservatives. In 2003, Chief Justice Antonin Scalia invoked the “slippery slope” argument in his dissent in the Lawrence case to claim that decriminalizing consensual sodomy would open a fearsome floodgate of challenges to restrictions on sexual and marital practices. He specifically linked same-sex marriage to polygamy, inciting defensive denials from gay marriage advocates of any links between the two. Few gays who distinguish same-sex from plural marriage, however, address the uncomfortable racial commonalities invoked in debates about both. Some contemporary critics of the movement for same-sex marriage, in contrast, underscore its implicit whiteness. In “Is Gay Marriage Anti-Black?” Kenyon Farrow argues that, for decades, social science research and “family values” rhetoric have stigmatized black families by positioning the monogamous marital family as the sole socially and psychologically healthy model. Instead of confronting this ideology or addressing the core concerns of poor, black Americans—housing, health care, employment and the over-incarceration of black men—that undermine black heterosexual marriages and families to begin with, the campaign for same-sex marriage insensitively places black churches and communities in the cross-hairs of an ideological battle between white religious conservatives and primarily white gay activists.

In 2006, a coalition of academics and activists released a statement, “Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families and Relationships,” calling for a “flexible set of economic benefits and options” for individuals irrespective of their familial or sexual circumstances. Nancy Polikoff, one of the authors of the statement, develops the argument more fully in her recent book, Beyond (Straight and Gay) Marriage, which shows how we could protect far more individuals and families if we divested marriage of its unique legal status and awarded rights, benefits and obligations to the multitude of relations of care that currently exist in our society. She provides a rigorous accounting of public benefits attached to marriage and offers sample policies from other democratic countries that do not favor one family form at the expense of all others.

We endorse Polikoff’s policy framework for “valuing all families,” along with Ann Pellegrini and Janet Jakobsen’s call for a conception of “sexual ethics” that is far broader than any notion of consensual marriage, whether straight or gay, and we would add, whether monogamous or polygamous. Sexual and gender justice require getting the state out of the marriage business altogether, returning marriage to the province of diverse religious and secular communities. A democratic state should award equal dignity and respect to all consensual, responsible forms of intimacy and care. Racial and economic justice require the same thing. We cannot achieve one without the other.

History, both in France and Turkey, contradicts the claim that secularism guarantees equal rights for women and men. The French secular state long denied women the right to vote and its civil code enforced male prerogatives over women in families until well into the twentieth century. The Turkish republic (a one-party state until after WWII) was inspired by the French republic (although it gave women the vote in 1934, ten years before France) and it modeled its penal code on Italy’s. Until that code was revised in 2001 (with the support of the AKP), women were defined as men’s property and rape was considered a violation of a male property-holder’s right. Ideas about family honor resting on the control of women’s sexuality are not unique to Islam, nor are they foreign to secularism.

The sharp opposition between the secular and the religious is a distortion of historical reality. Most of the secular states of Western Europe found ways to accommodate their religious majorities rather than banishing them; it is probably more accurate to speak of forms of Christian secularism than of the erasure of the public presence of religion. School holidays in secular France are Catholic holidays and the state supports the upkeep of churches as part of the national patrimony. In Germany, there is religious instruction in public schools. In these countries, Muslims have rightly wondered whether restrictions on their religious expression were a form of discrimination against a minority presence rather than a defense of the secularism of the state.

Although Muslims are a majority in Turkey, the question of discrimination has also been raised there. This time, it is new migrants to cities as well as residents of the countryside who are questioning the entrenched power of urban elites. The emergence of a multi-party system in Turkey is associated with breaking the hold of these elites, whose support for military authority in defense of secularism made them seem suspicious of, if not hostile to democracy. The multi-party system brought the question of religion—its representation and its practice—into play. The need to figure out an accommodation between a majority religion and democratic practice is not unprecedented in the history of European nation-states.

Allowing headscarves in universities may be one way of accomplishing this negotiation. It is especially interesting that the Prime Minister has explained the need to lift the ban as a way of guaranteeing all girls the “right to higher education,” a right that assumes not only equality with men, but among women of different classes and social backgrounds. For observant Muslim women—the majority, some 60% in Turkey—wearing the headscarf means many things, but one of its effects is to enable mobility and independence in the public arena; this means access to the education and jobs traditionally enjoyed by the minority of women associated with established secular urban elites.

It is important to note, too, that feminist groups in Turkey are divided on the question of the headscarf. They realize how complicated an issue it is in terms of achieving not only gender, but social and economic equality. They are not divided about other proposed changes to the constitution, however. These involve dropping the commitment of the government to insure equality for all (a hard won gain for women’s groups) and introducing language referring to women as a “vulnerable group.” These changes would bring back the laws that prevailed under the secular republic until the end of the 20th century; laws that subordinated women to men and confined them to the domestic sphere.

In Turkey there seem to be two separate issues at stake in the constitutional reforms. One is the restoration of male privilege, which would come in the form of revisions to the civil code. The other is the recognition of women’s rights, which would include the right of individual religious expression. Ironically, since the right to wear the headscarf has been defined as a woman’s individual political and social right, it could make the full restoration of male privilege difficult to justify, if not impossible to implement.

Ironically, perhaps, the viability of the decision in the Nicholson case is presently in doubt, and the appeal of the decision has been stayed, because of a subsequent decision by the U.S. Supreme Court. Hein v. FFRF. (Hein v. FFRF, 127 S. Ct. 2553 (2007).) Another case brought by the Freedom From Religion Foundation. Another complaint that unsuccessfully argues that officially recognizing Americans as religious is unconstitutional.

The Hein case was the only religion clause case decided by the U.S. Supreme Court in the October 2006 term. FFRF alleged in Hein that expenditures by the Director of the White House Office on Faith-Based and Community Initiatives on conferences promoting participation by religious groups in government funding of private social services constituted an unlawful establishment of religion. As with Nicholson, their concern was the government favoring of religion over non-religion. Hein was an exceptional form of action known as a taxpayer suit. A majority of the justices found that FFRF had no standing to bring the action. While standing questions may seem to be the kind of question that only a lawyer could love, this seemingly dry procedural ruling further illustrates what I am suggesting is a significant change in the Court’s attitude toward religion.

The vote in Hein was five to four and there were four different opinions. Justice Alito’s opinion for three of the justices in the majority came close to overruling a key religion clause precedent, Flast v. Cohen (392 U.S. 83 (1968)), but the three opinions by the justices in the majority are most distinctive from that of Souter’s impassioned dissenting opinion in their suggestion that the danger of religious establishment no longer requires special constitutional vigilance. Indeed, they argue that such special treatment is the legacy of anti-Catholicism and therefore ought to be abandoned. The President can promote religion, they say, just as he can promote any other social policy, limited only by electoral politics. And taxpayers no longer have standing to complain.

Article III of the U.S. Constitution, which establishes the judicial branch of government, provides that the jurisdiction of the federal courts is limited to “cases and controversies.” These words have been interpreted to mean that U.S. courts may only rule in what are known as justiciable controversies. They cannot give advisory opinions, decide essentially political questions, or rule on issues that are moot. To do these things would violate the doctrine of separation of powers and invade the provinces of the other two branches of government. In 1923, in Frothingham v. Mellon, the Supreme Court held that lawsuits initiated by federal taxpayers, as taxpayers, to challenge the constitutionality of congressional statutes are not justiciable because individual taxpayers, simply on the basis of their individual tax burden, lack a sufficient personal financial stake in such cases. (Frothingham v. Mellon, 262 U.S. 447 (1923).

Only one exception has been made to this rule against taxpayer suits. In 1968, in Flast v. Cohen (392 U.S. 83 (1968)), the Court allowed such taxpayer cases specifically in order to challenge the constitutionality of congressional acts alleged to be in violation of the establishment clause. Religion is special, the Court was saying in 1968, and established religion is especially dangerous. The Flast taxpayers challenged a federal grant of assistance to local schools, including religious schools, to purchase textbooks and other instructional materials for disadvantaged students. In an 8-1 decision, the Court held that the foundational importance of the principle of religious disestablishment to U.S. government demanded an exception to the rule in Frothingham.

Special emphasis was placed by the majority in Flast on the evil of using any government funds whatsoever to support religion. Authority for this proposition was found in James Madison’s Memorial and Remonstrance: “The same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all other cases whatsoever.” In his concurring opinion in Flast, Justice Douglas, in language characteristic of the time, cited “notorious” and “mounting federal aid to schools” as well as the risk that any money given to parents of parochial school children would be given directly to “the priest.”

The 2007 Hein decision did not explicitly overrule Flast but formally only limited Flast to taxpayer establishment clause challenges to acts of Congress, distinguishing the White House Office as a part of the executive branch. But, as Jusice Scalia wrote in concurrence, Flast had essentially been overruled. Souter’s dissent in Hein hearkens back to the Flast era, insisting that religion is special, that individual conscience must be protected by a high wall of separation, and that James Madison ought to still rule: “favoritism for religion,” says Souter, “‘sends the . . . message to . . . nonadherents’ that they are outsiders, not full members of the political community.”

Souter’s is increasingly a minority voice. We are all religious now. As a leading architect of integrating spirituality into medicine says, “our belief [is] that there is a spiritual dimension in every person’s life, even in those who deny that there is.”

Hein and Nicholson fit into a line of recent cases interpreting the establishment clause that move away from the high separationism of the mid-twentieth century towards what we might call a post-pluralistic acknowledgment of religion. While this is seen as establishment by some, by others it is seen as a benign establishment, permissible because no longer tainted by religious bigotry.

One way of reading the two clauses of the First Amendment to the U.S. Constitution, historically, has been to understand the free exercise clause as protecting individual conscience and the establishment clause as protecting citizens from a government dictated by clerics. Historically in the U.S. that understanding was founded in a particularly Protestant understanding of religion. Religion which was internal, chosen and believed—religion that is about conscience—could be free without threat to the public order. Other kinds of religion, in the U.S. this has meant Mormons, Jehovah’s Witnesses, Native Americans, Jew and Catholics, primarily, was often unacceptable and policed as illegal acts or as threats of establishment. But the ideology of equality and the analogy to race, as well as the conforming, more or less, of foreign religions to protestant forms, has made such a crabbed anthropology progressively less credible. Now religion includes everybody, even those without religion, and the First Amendment religion clauses have become an anachronism.

The response of the Supreme Court has been, by and large, to get itself out of the business of deciding what religion is. With the free exercise clause, that means that laws must be neutral and universal, not discriminatory. No judicial exemptions will be given to those with religious motivations for their actions. With respect to the establishment clause, it means that no particular disability is laid on religious institutions in their dealings with the government, just because they are religious.

A new abstraction of religion has developed to accommodate this new situation, one that is particularly evident in the delivery of health care. It is dependent on the belief that, in the words of a leading scholar of pastoral theology, “both the symbolic truth of traditional religious language and the truth of philosophical and scientific critiques of religious language [can] be held together in a conjunctive style of faith.” (George Fitchett, Assessing Spiritual Needs: A Guide for Caregivers).

The Court seems to be in the mood to countenance such an approach, notwithstanding the insistent demand from those such as FFRF, echoing many critics in religious studies, who see such a position as covertly theological. There is still excluded religion under such a legal regime, of course, but the arbiter is no longer the court. Religion has been neutralized and naturalized—de-constitutionalized, formally. It is the individual chaplain who determines what constitutes spiritual health. And politics, not the Constitution, that determines whether he should be given a job.