In the minds of many moderate American voters, and certainly the political class in Washington, the Republican Party has a big problem: Whenever it seems to have figured out a formula for success, uncomfortable debates over so-called social issues raised by party-base activists seem to get in the way. In 2012 and 2014, it was the Republican Party’s supposed fixation with contraception. More recently, the issue du jour has been gay marriage.
Buying into the theory that active engagement on these issues is a losing battle that will do more harm than good, the Republican leadership has tried to avoid these thorny issues without alienating its base, to little avail. In 2010, for example, Indiana Governor Mitch Daniels argued that Barack Obama’s successor in the White House “would have to call a truce on the so-called social issues.” The base never got over Daniels’s remark, and Daniels never mounted a presidential campaign.
With last year’s Supreme Court’s decision in Obergefell v. Hodges, some Republicans believe it is now finally possible to retreat from the marriage fight and achieve that long-desired, and politically salving, truce. Ohio Governor John Kasich has argued that “now that the issue of gay marriage is kind of off the table, we’re kind of down to one social issue,” a positive development that, he argues, leaves the party more room to address other concerns like childhood education, the environment, and infant mortality. Republican consultant John Feehery has written: “The Supreme Court has decided that everybody deserves a right to have a family, no matter what their sexual orientation. So be it. Let’s move on.”
Are they right? Have we reached Governor Daniel’s truce? Is it time to move on?
Alas, moving on is not so easy for some Americans. Moving on wasn’t an option for the Catholic Church a decade ago, when the Massachusetts Supreme Court imposed a new definition of marriage equating same-sex unions with those between husband and wife. After that decision, the Church was forced to abandon its adoption services due to laws requiring that it place kids with same-sex couples in contravention of its teachings. Moving on has not been an option for Aaron and Melissa Klein, the owners of an Oregon bakery who were forced under state anti-discrimination law to shut down their business because they could not in good conscience violate their Christian faith by participating in a same-sex wedding.
Looking ahead, moving on is not an option for religious schools all across the country. Note carefully that during the oral arguments in the Obergefell case, Solicitor General Don Verrilli openly acknowledged that those schools’ tax-exempt status might at some point be revoked if they refuse to endorse the redefinition of marriage. In response to questioning from Justice Alito anticipating that the government would analogize religious universities opposed to same-sex marriage to the case of Bob Jones University for the latter’s opposition to interracial dating, Verrilli admitted that “it’s certainly going to be an issue. I—I don’t deny that. I don’t deny that, Justice Alito.”
Verrilli’s comment must be taken seriously, for it illustrates a sharp and clearly developing logic in which the debate is shifting from one about the definition of marriage, and hence aspects of social policy, to one about freedom of conscience. As Ryan T. Anderson, author of Truth Overruled: The Future of Marriage and Religious Liberty, explains, “For years, the Left’s refrain has been that people who oppose same-sex marriage are just like people who opposed interracial marriage—and that the law should treat them as it treats racists.” The Federal government didn’t let racists “move on” in the Civil Rights era; it banned discrimination in public accommodations. It went after the tax-exempt status of private schools with racist policies. The question now, as posed by Anderson, is, “Will the defenders of marriage be treated like bigots? Will our society and our laws treat Americans who believe that marriage is the union of husband and wife as if they were the moral equivalent of racists?”
The answer, most conservatives believe, should be “no.” Anti-miscegenation laws were never about the meaning of marriage, and, some will be surprised to learn, they were not the historical norm. Rather, they were always artificial barriers to entry rooted not in any understanding of the nature of marriage but in the most indefensible sort of bigotry. The one-man, one-woman view of marriage, in contrast, was never designed to keep anyone out. It is not exclusionary. It is a basic definition founded on civilization’s long-standing understanding of the inherent complementarity of men and women. This definition of marriage, unlike bigotry, is rooted in a clear moral principle: All children deserve to be raised by a mother and a father.
That principle, unlike the racist motivations for anti-miscegenation laws, is something still worth championing, and not just for abstract moral-philosophical reasons. Despite some bizarre attempts to suggest otherwise, all the social science we have shows that socially sanctioned conjugal-defined marriage is the best basis for the raising of children.1
This is the conservative perspective. It has become, somewhat surprisingly, a controversial one these days, to be sure, and it’s one that supporters of same-sex marriage reject entirely. But at this stage of the debate, Americans who hold these views don’t expect those on the other side of the debate to be persuaded on the merits, at least in the short term. The Left has already won on marriage, after all, at the Supreme Court, and a constitutional amendment or Supreme Court reversal doesn’t seem to be in the cards for now. So what matters now is not so much whether the conservative perspective will win out but rather whether it will even be tolerated in polite society.
To expel its proponents would be to cast out Rick Warren, “America’s most powerful religious leader,” according to Time. When President Obama announced that Warren would deliver the invocation at his first Inauguration, groups like People for the American Way objected on the grounds of his departure from “consistent mainstream values.” Seven years later, it’s hard to imagine a Hillary Clinton transition team, if there is one, disagreeing.
It would mean excluding from professional life people like Brendan Eich, the former CEO of Mozilla, who lost his job after his views on the definition of marriage were uncovered by same-sex marriage activists. Eich didn’t just avoid bringing his personal perspective on marriage into the workplace; he made an active effort to show solidarity with progressive-leaning employees, sponsoring a tech accelerator for “Underemployed, LGBTQ, [email protected], and African American populations” and preaching the language of tolerance and inclusion with Mozilla. None of it was enough, because Eich was “on the wrong side of history” when it came to marriage. He was forced to step down as CEO, and any Fortune 500 executive who steps out of line now risks a similar fate.
It would mean, as contemplated by Verilli, a new round of scrutiny for most private religious schools, despite the fact that tax-exempt religious charities are the bedrock of American civil society. Religious public employees will now be suspected, unless proven otherwise, of harboring ill intent toward gays and lesbians.
It would mean creating a culture that makes good people and institutions out to be evil, teaching our children that the friendly Catholic neighbors across the street are morally suspect, that the religious immigrant family warrants suspicion for bringing alien, socially conservative values into the community, that those bearing Bibles shouldn’t be trusted by Americans who believe in the gospel of tolerance.
Given marriage’s centrality to the religious teachings of so many of the faith communities that form the bedrock of American civil society, it’s hard to exaggerate the threat to religious freedom posed by the shifting mores that have been unleashed by changing attitudes on same-sex marriage. No matter one’s perspective on the marriage question itself, the threat that this issue will isolate people of faith in a country whose founding ideals made religion central to its self-understanding should give all of us pause.
This may not be the future that most proponents of same-sex marriage seek, but it’s one many American intellectual elites welcome. Their message is unambiguous: Good luck to believers if they hope to earn a living or pass their faith on to their kids. Participation in commercial, political, and civic life in America will hereafter be limited, if the Left gets its way, to those who accept the new orthodoxy. Or, as declared by Gawker writer Rich Juzwiak:
F— those people. F—their myopic ‘good will,’ f—their views on this issue that are anti-equality, f— their misguided sincerity, their deeply held beliefs, their refusal to see what’s right, their insistence on hiding behind some passages (and ignoring hundreds of others) from their beloved Bibles.
This kind of language may sound nastily apocalyptic to mainstream observers generally inclined to support same sex marriage. That’s because the stories of well-meaning Americans who have been under assault for living out their beliefs—the florists, the cake bakers, the pizza-shop owners—aren’t well known outside of conservative media. But these are the stories that are on conservatives’ minds when they hear President Obama acknowledge the need to “recognize different viewpoints, revere our deep commitment to religious freedom.”
Conservatives are convinced they know how this movie ends. Conservatives expect no olive branch extended to dissenters. There are wedding cakes to be baked, and Christians will bake them whether they want to or not—or lose their livelihood by refusing. As predicted by Justice Alito in his Obergefell dissent, “those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”
Even those who sought to ignore the political debate, who were comfortable with the state redefining marriage so long as they could maintain their own personal beliefs, will, in the words of Erick Erickson, publisher of the Resurgent, be made to care.2
With an American public largely unaware of the stakes of the fights to come over marriage and religious liberty, and a liberal elite eager to raise those stakes, much of the burden of educating the public has fallen on friends of religious liberty in elected office to shape public sentiment. But those efforts have so far prompted more backlash than understanding. Note, for example, the recent effort to pass a Religious Freedom Restoration Act (RFRA) in Indiana.
RFRAs aren’t a new concept. When the 1990 Supreme Court decision in Employment Division v. Smith, a case regarding state laws prohibiting religious consumption of peyote by Native American state employees, lowered the burden on the Federal government to justify laws infringing on Americans’ religious beliefs, the Right and the Left rallied together to call for a legislative remedy. Ted Kennedy and the American Civil Liberties Union joined with Orrin Hatch and the Christian Legal Society to pass the federal RFRA, which restored the Court’s previous requirement that the Federal government demonstrate a compelling state interest when interfering with religious practices. Upon signing the legislation, President Clinton defended its strengthening of First Amendment, warning Americans of the dangers of
a climate in this country in which some people believe that they are embarrassed to say that they advocate a course of action simply because they believe it is the right thing to do, because they believe it is dictated by their faith, by what they discern to be, with their best efforts, the will of God. I submit to you today, my fellow Americans, that we can stand that kind of debate in this country.
Because of their long history and bipartisan support, it was natural that Republicans would turn to RFRAs as a remedy to defend believers of the conjugal view of marriage in the wake of the Supreme Court’s Obergefell decision. But with RFRAs now positioned as an obstacle to rather than an instrument of the Left’s social agenda, religious liberty was shown by the Indiana episode to be a consensus issue no longer.
Echoing Clinton, Indiana Governor Mike Pence noted in signing his state’s RFRA that “the Constitution of the United States and the Indiana Constitution both provide strong recognition of the freedom of religion but today many people of faith feel their religious liberty is under attack by government action.” That he was forced to preempt a backlash in his signing statement—assuring opponents that this bill “is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it”—was itself a sign of how much had changed in the decades since the Federal RFRA’s passage.
Even before Pence signed the bill, critics pounced. The ACLU urged the Governor to veto it, a prelude to its later reversal of support for the Federal RFRA it had once championed. Explaining that reversal, the organization’s deputy legal director wrote in the Washington Post,
While the RFRA may serve as a shield to protect Singh [a Sikh whom the ACLU had supported in seeking legal protections against military restrictions on beards and turbans], it is now often used as a sword to discriminate against women, gay and transgender people and others. Efforts of this nature will likely only increase should the Supreme Court rule—as is expected—that same-sex couples have the freedom to marry.
In other words, RFRA was acceptable when the mores of believers weren’t unacceptable to the cultural elite, but with elite norms shifting, the range of religious claims the Left will tolerate has narrowed. With mainstream religious teaching on marriage now understood as discrimination, the choice between the church of secularism and religious liberty isn’t much of a choice at all to traditional left-wing defenders of civil rights.
The backlash in Indiana was fierce. National same-sex marriage proponents fomented a local uprising, rallying thousands of protesters to the Indiana state house. The Indiana business community, sensing a public relations opportunity, threatened boycotts. Republican legislators grew weak-kneed, and Pence relented, eventually signing an amendment to the law that gutted its protections for the religious against state conscription into participation in same-sex marriages.
This was a setback for religious liberty from a legal standpoint. But more worrisome for the project of promoting a thoughtful conversation about how the principles of the liberal society would contend with shifting attitudes on marriage was that the incident prompted a social backlash against people of faith in the state. One local television reporter, eager to root out bigoted business owners, walked into a small pizza parlor and asked its owners if they would be willing to cater a same-sex wedding. When the owners admitted that they would be comfortable serving all comers but that participating in a ceremony violating their beliefs would be a bridge too far, they were widely painted as bigots on social media and reduced to comedic fodder for late-night talk show hosts—and even for the President during his remarks at the White House Correspondents’ Association Dinner. The attention wasn’t funny for the business owners though; with death threats flooding in, they were forced to close shop for more than a week.
The pizza shop proprietors had not even been accused of any actual discrimination. Their crime was merely giving the “wrong” answer to a hypothetical question about catering weddings (a service they weren’t even accustomed to providing). It seems clear that many other believers will face ever-increasing stakes in the post-Indiana landscape.
Republicans, ostensibly the party of social conservatism, are not well positioned to advance the argument for tolerance of dissent from the new cultural orthodoxy. That is partly because it’s an argument the party’s political professionals don’t want to make. According to a 2013 National Journal poll of Republican political “insiders,” 75 percent indicated that Republicans should support gay marriage or avoid the issue. And even those who recognize that the debate over freedom of conscience is inevitable are engaging only begrudgingly. Former RNC spokesman and Romney campaign senior adviser Kevin Sheridan warned recently of the downside of the debate over religious liberty, “I think it’s foolish, but I think they want to beat this drum. So yeah, good luck to them.”
These party professionals constitute the lifeblood of Republican campaigns; they are the operatives who deliver the messages dictated by both the most socially conservative politicians and those less conservative. When they are not on board with a conservative cause, it simply will not feature prominently in Republican politics.
But the Republican Party is not merely dragging its feet; some elements within it are actively undermining the argument for freedom of conscience. One amicus brief in Obergefell peddling the comparison between the conjugal view of marriage and other “previously unexamined societal assumptions” like separate-but-equal and anti-miscegenation laws counted among its signatories such A-list Republican insiders as Alex Castellanos, Ana Navarro, and Ron Kaufman. When even the supposed allies of social conservatives endorse the fundamental premise on which the argument for illiberalism depends—that opposition to the redefinition of marriage is akin to racism—it becomes very hard for freedom-of-conscience advocates to get much of a hearing, much less robust advocacy, within the Republican Party.
This is not to say that the entirety of the Republican elite class consists of social liberals; far from it. But even those who do identify as socially conservative can no longer be counted on to mount a defense of religious liberty. As Peter Spiliakos articulates the problem:
One way to understand the often ineffective, and sometimes just plain odd recent behavior of the Republican consultant class is to think of them not as hired guns, but as part of a wider elite Republican culture that also includes donors, Washington political aides, former elected office holders and lobbyists (the last three groups overlap to a very large extent). This culture shapes how these consultants believe campaigns should be run….
They are concerned less with governing (policy) and more concerned with how campaigns are conducted and what issues are emphasized…. The campaign priorities emerge from an elite culture (a center-right elite culture) that prioritizes economic issues and views the social issues as a distraction or a necessary evil. This is not just about dollars and cents. It is about how priorities emerge within a culture. This is a culture where it was widely believed that endlessly repeating “you built that” had some kind of talismanic power over the electorate.
Against such a culture, it is not enough for social conservatives to have majority support within the Republican Party or to win the intellectual argument; that does not buy much more than a head-pat and public commitments that politicians will appoint judges who will not engage in the sort of activism that has brought us to this point.
That Republican politicians have positioned themselves as the champions of corporate America further compounds the problem. When Angie’s List and the NCAA boycotted the State of Indiana for its RFRA, they had more in common than ideology: Both are beneficiaries of massive taxpayer subsidies. The subsidies had not made them subservient to the state’s political leaders; quite the opposite. Indiana politicians had invested too many hundreds of millions of taxpayer dollars in Lucas Oil Stadium to have the NCAA snub the venue over the RFRA controversy. They had invested too much political capital in crafting an $18 million package of subsidies for Angie’s List to let the company take its business out of state. When the pressure came from these and other businesses, Indiana’s Republican leaders proved that in their relationships with corporate America they were the supplicants, not the patrons.
But the deepest problem facing Republicans who do want to defend religious liberty is one of policy: In the post-Indiana landscape, RFRAs frame the problem precisely the wrong way for Republicans to mount any effort to persuade. There is a better way.
RFRAs are important, and they are good policy. But the problems with them are twofold.
First, RFRAs are designed to force courts to engage in a balancing test in assessing religious liberty claims against generally applicable statutes. That set-up merely kicks the conflict between religious freedom and the progressive agenda of coercion in the service of the sexual revolution to the judiciary; it doesn’t actually resolve the conflict in favor of religious liberty. Given the Supreme Court’s receptive attitude toward arguments analogizing defenders of marriage to racists, the judiciary may prove unsympathetic to religious claims under RFRA on marriage.
More importantly, in light of Obergefell, RFRAs raise questions that put their intent in the worst possible light. If religious believers are seeking exemptions from generally applicable laws, what sorts of laws are those? Anti-discrimination laws? Why would religious believers want a “right to discriminate”?
A more effective framing of this debate would flip those questions on their head. The proposed First Amendment Defense Act (FADA) represents a good first step in that effort. The protection it offers, in contrast to RFRA’s balancing test, is simple: a guarantee that the government will not discriminate against Americans for holding the view that marriage is a conjugal and monogamous union.
FADA’s first advantage is that, unlike RFRAs, it takes this issue back from the most non-democratic branch of American government and puts it into the hands of elected legislatures by enacting an affirmative protection for conscience. This is the sort of reasonable accommodation that is best reached democratically, before issues like this ever reach the courts. The courts are ill suited to making such prudential political judgments and in any case are not given the obligation to do so by the Constitution.
Moreover, by taking affirmative action on religious liberty rather than kicking the question to the courts, FADA helps Republicans solve their political problem. Rather than raising questions that put the onus on believers to justify their concern, it flips the rhetorical dynamic by simply saying that the government may not discriminate against people who hold traditional views about marriage. Why would government want to do that?
The case for religious liberty in the face of a rapidly emerging, elite-driven cultural consensus about the redefinition for marriage is not easy to advance. One side of the debate has mastered the language of civil rights. With America’s first freedom under assault, friends of religious liberty need urgent remedial training in that language themselves.
For public-spirited citizens, that training is impossible without knowledge of the concrete harm that the dissolution of religious protections will create for well-meaning men and women of faith who maintain their view that marriage is a union of man and woman. Given media elites’ attitudes on this question, such knowledge would have been impossible to come by in another age. But today’s victims of the assault on religious liberty need not become plaintiffs in high-profile lawsuits to draw attention from sympathetic fellow citizens. The emergence of alternative media outlets offers victims of the new assault on religion a platform to get the word out. These victims need not suffer the government’s ire in silence, and all of us, whatever our views, can benefit in our understanding of the problem from knowledge of their stories.
Our political leaders must sharpen their arguments as well. It will not do for them to wait until the next media-created controversy to dig in their heels when asked for their perspective on the question. They should seek out low-stakes opportunities to test-drive their arguments, develop clear records of principled support for religious liberty, and set precedents for those at other levels and in other branches of government to follow suit.
This is something they will, sadly, be loath to do. In 2015, for example, Congress had a time-limited opportunity under the Home Rule Act to weigh in on religious liberty through its authority to override legislation passed by the District of Columbia government violating religious schools’ conscience rights. Rather than weigh in, Congress demurred, doing its best to finger-point and to avoid blame from activists members who, they assumed, were too uninformed to cut through the excuses. Senator Ron Johnson, Chairman of the relevant Senate committee, insisted that he opposed the bills but that success would be more achievable during the appropriations process—even though appropriations legislation is subject to a higher vote threshold. Meanwhile, House leaders dragged their feet on the issue by pointing to the Senate, arguing that, absent a Senate vote, a House vote would do little good.
While the House was eventually shamed into action on one of the bills, the Senate stood on the sidelines. Opportunities like this represent just what the party needs, as evidenced by the messaging mess in Indiana: a low-stakes test drive of important arguments to give lawmakers the rhetorical skills necessary to succeed in debates of higher consequence.
However much politicians want to avoid this fight, it is not one they can wish away. The alternative is not the status quo, but a slippery slope leading to the end of religious liberty as we know it. For all the Left’s insistence that opportunistic conservatives have for years been picking a battle over marriage for cynical political advantage, this is simply not true. Conservatives never sought a debate over marriage; rather, it has been the self-styled progressive Left that has labored relentlessly to move the goalposts. What at least some conservatives have long recognized, however, is that these questions cannot be ignored; the slippery slopes all too often derided by critics are very real.
It is worth recalling that, back in 1997, Andrew Sullivan insisted that, “whatever your assumptions about liberal judges, the right to marry and the right to adopt are logically, politically, and legally separate issues.” Even if he sincerely believed that almost twenty years ago, he nevertheless has proved to be quite wrong. The underlying false principles on which the judicial redefinition of marriage depends—that objections to redefinition are irrational unless rooted in animus—dictate what occurred in the first state to legalize same-sex marriage: the expulsion of the Catholic Church from the adoption business in Massachusetts.
This battle is coming soon to communities all across America. Churchgoers are asking themselves if their wedding halls will be forced by the government to host same-sex weddings and receptions. School administrators are re-evaluating curricula out of concern for their tax-exempt status. Purveyors of wedding services who see their businesses as extensions of their church communities are now questioning their choice of vocation. This is not the America our founders passed down to us. Who can fail to notice the irony that to lose this struggle is to spite the spirits of those who crossed the ocean to found this society, and whose lived beliefs infused it with the virtues that have allowed America to become, on balance, both good and great?
Social conservatives knew years ago that the redefinition of marriage would be the first of several dominoes to fall. But they must not now concede total defeat because they have lost on one question before the Supreme Court. The nation remains divided on marriage, and the Left seeks to force on all the views held by some. It is still within the power of social conservatives to repair our pluralistic fabric by embracing a true diversity of opinion on this important issue and protecting those whose views have fallen out of favor in elite circles. That can happen, however, only if political leaders are willing to take on this debate. Evidently, we the people nowadays must force this task on them.
1One such bizarre attempt is Richard Beck, We Believe the Children (PublicAffairs, 2015), which argues, somehow, that the traditional family is the worst way to raise children.
2Erickson describes the process by which the left’s cultural assault will encounter even those who have no interest in the politics of same-sex marriage in You Will Be Made to Care (Regnery, 2016).