The Religious Right's Terms of Surrender

Rachel Ensign/Twitter (@RachelEnsignWSJ)

Last week's Supreme Court rulings striking down the Defense of Marriage Act and denying standing to California's Proposition 8 supporters have brought out the usual clown show of conservative religious leaders proclaiming the end of days. It's the standard stuff from the activist right: Here comes pedophilia, incest, polygamy, and bestiality. Christian florists will be dragged to jail for refusing to cater a same-sex wedding. School children will now be forced to simulate lesbian sex with their Barbies. Stirred to action by the decision, the Christian right has vowed to resist the spread of same-sex marriage nationwide, using civil disobedience if necessary. There's even talk of reviving the Federal Marriage Amendment, which would amend the U.S. Constitution to define marriage as being between a man and a woman.

But conservative intellectuals aren't expressing the same bravado as their activist counterparts. Like the 73 percent of Republicans who say gay marriage is "inevitable," thinkers on the right are conceding defeat, and considering what the future looks like for opponents of same-sex marriage. Here's conservative columnist Ross Douthat at The New York Times:

Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters—the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today.

Maggie Gallagher, founder and former president of the National Organization for Marriage (NOM)—the country's most powerful traditional-marriage group—expressed a similar sentiment in a conversation with the Prospect's E.J. Graff after the 2012 election. After passing constitutional amendments in 30 states banning same-sex marriage, in November voters in four states rejected similar amendments. Gallagher conceded that it was a turning point, and said wistfully that she hoped same-sex marriage would become, in the future, something reasonable people could disagree on—that opponents of gay unions would not be branded as bigots and shunned from public discourse. Think abortion—where you can be an upstanding member of society and still hold the minority view—not racial segregation, where a firm public consensus exists.

Douthat and Gallagher's pleas for pluralism will go unanswered. As I've written before, in the future opposition to marriage equality will indeed be the moral equivalent of racism, and whether or not this happens depends little on the magnanimity of gay-marriage supporters.

For one, you can't go to war with one idea and concede another. The argument from religious conservatives—both the activists and the intellectuals—was never that they should be free to perform and celebrate marriage in accordance with deeply held beliefs about human nature, gender, and divinity. Nor was it that the traditional view of marriage is entitled to cultural respect. It was an absolutist one: Either civil marriage excludes same-sex couples, or it is meaningless for everyone.

Key to understanding this view is the Orwellian term "religious liberty," a watchword whose meaning is a far cry from the "freedom of religion" guaranteed by the Constitution. Among Christian conservatives, "religious liberty" means having one's views codified as those of the state. This isn't just my uncharitable characterization. Current NOM President Brian Brown said precisely this a month ago:

The reality is, if you pass [gay marriage], you're undermining religious liberty … there isn't really a way to sort of carve out the rights of those of us who believe that marriage is the union of a man and a woman because the law undermines that belief.

Comedians love to poke fun at it, and it's baffling, but "my toys are ruined if I have to share" is really what it amounts to. The point is not that, after the dust settles, individual gay-marriage supporters will hold these extremist views against those who privately oppose same-sex marriage. It's that, three decades after conservative Christians jumped the Church-State divide with the Moral Majority and the Christian Coalition, opposition to same-sex marriage has become synonymous with this sort of religious absolutism.

Over cocktails after work, Douthat can get into a lengthy conversation with one of his liberal colleagues at the Times about how his views are different from those making the case on the front lines. But most exchanges about political issues don't work that way. If you tell someone under 30 you oppose gay marriage, the instant assumption is that you're a religious extremist. You won't get much further than the first few words. Given how this battle played out, the swell of support in favor of same-sex marriage will drive the extremists back across the line along with their nicer friends.

There is another reason opposition to same-sex marriage won't hold the cachet that opposition to abortion still enjoys. Public opinion on abortion has remained about where it was in 1973, largely because the question of where on the continuum from zygote to full-born child life, and therefore civil rights, begins is so difficult to answer—no less so because of advances in medical technology. As the Supreme Court ruling in Roe v. Wade acknowledged, there are many legitimate views, which is why the Justices refused to answer the question directly.

But there is no coherent case against civil marriage for gay couples. The only argument against same-sex marriage that holds water is the religious one. It may have been codified in our secular legal system, but the religious view of marriage was always on shaky ground; with religiosity plummeting and support for same-sex marriage skyrocketing, it was only a matter of time before public opinion turned against it too. As a former Catholic, I understand the religious view of marriage well. I used to stress to my catechism students that the union of man and woman in marriage wasn't just natural, but supernatural. In court the opponents of same-sex marriage have stressed the reproductive capabilities of heterosexual relationships, but theologically the bond between the sexes runs much deeper. "Male" and "female" aren't just biological designations, but deeply marked in human nature. Marriage joins them at a spiritual level. In nature the union can produce offspring, but this is merely a reflection of this deep spiritual compatibility, woven into the order of creation. As a symbol of the bond between Christ and the ark of salvation, the Church, the sacrament of marriage is also redemptive. If this is how you see marriage, it's easy to understand why the very idea of same-sex marriage seems ludicrous.

But in a secular democracy—and in court, where it matters—you have to make the case by skirting the surface, without referencing these deep spiritual truths. Of course the subtext has been there all along in the legal arguments about the "history and traditions of Western civilization." You can hear the echo—"In the beginning God created the heavens and the earth." When it came time to argue in Court why marriage should be restricted to heterosexual couples, the best opponents of same-sex marriage could do was bring up the point about reproduction, which leaves out the tens of thousands of couples who cannot reproduce, and those who are too old to.

Next, they tried to argue the flip side of the coin: That same-sex marriage would harm the institution, harm society, and harm children. These have long been consequences religious people assumed would come with breaking God's law, but they've never been borne out by any research. Growing up with two parents of the same sex doesn't harm children. Gay marriage doesn't lead to more crime. And the burden of proof is on the religious right to show how exactly it harms the the abstract notion of "the institution." After promising the trial court judge in the Prop. 8 case that they would present him with 23 ways in which allowing gay marriage would do just that, they presented no such evidence at trial. Wondering where the goods were, Justice Vaughn Walker asked Chuck Cooper, lead attorney for the proponents of Prop. 8, directly: What would be the harm of allowing gays and lesbians to marry? "My answer is, I don't know," Cooper relied. "I don't know." Religious conservatives have failed to make the secular case against same-sex marriage because, quite simply, there isn't one.

Where does all this leave religious conservatives? Out of politics, where these views belong. 

Follow the author on Twitter @gabrielarana

Comments

The current controversy IRONICALLY harks back to a time when ONE of these absolutist religious groups was being PERSECUTED BY ALL THE OTHERS: the debate on statehood for Utah. The FULL FAITH AND CREDIT clause in Article 4 has traditionally been understood as including the requirement that every state recognize marriages and divorces (both being court decisions at the level of civil law) of all the other states. No underage couple who elopes to a state with a lower minimum and gets married there can be considered "not married" by their home state; and the same goes for divorces (or did, when every state had more or less strict laws requiring a courtroom fight).

When the Mormon-run territory of Deseret wanted to become a state, other states feared they would bring polygamy into the rest of the nation via the FFAC clause; Brigham Young's son and his harem of 20 wives could move to California, where they would have to be recognized as an exception to California's marriage law; OR a Californian could move to Utah, buy a dozen virgins, marry them in Utah, and bring them home to California. This "nightmare" (to most non-Mormons) was avoided when Utah's territorial government, at the direction of a new "revelation" to the Church President, banned polygamy.

If DOMA had never passed, every state that recognized gay marriage set up those couples to move to other states and force their marriages to be recognized there. DOMA made a Federal exception to FFAC,and now that it is overthrown, common sense would dictate that FFAC requires non-gay-marriage states to RECOGNIZE gay marriages performed in gay marriage states; but those states WOULD be legally able to restrict the legal solemnization of gay weddings IN their jurisduction.

The problem with the "religious liberty" argument (like "states' rights") is that it is presented as the "right" of an organized GROUP (in states' rights belief, the state) to interfere with the rights of other individuals (in states' rights belief, black people) who do not BELONG to, nor ACCEPT, the group's theology (the First Amendment has no legal problem with a religion disapproving of something its members might be tempted to do, such as play cards or dance, or to punish them by NON-COERCIVELY urging them to perform penance or leave the group). This is seen in the objections to birth control coverage for non-Catholic employees of Catholic-run non-religious enterprises such as schools and hospitals. I don't mean to pick on Catholics here, it's just that they are the oldest church that made these restrictions OFFICIAL. Many groups such as the SBC and the AOG are becoming "Catholic" with regard to both abortion AND birth control lately. By not offering insurance that covers birth control, they are interfering with the rights of their employees who do not subscribe to their religious doctrine.

ThinkingDem:

Almost everything you say about Full Faith and Credit and marriage is incorrect. While FFAC does require each state to recognize each other's divorces (because they are judicial proceedings), the FFAC has never been held to apply to marriages (which are licenses, in the constitutional sense).

If you think about this, it makes sense. The Lovings' marriage in Loving v. Virginia was upheld, not on FFAC, but equal protection. FFAC did nothing to protect people from miscegenation laws when they crossed state lines. Section 2 of DOMA, which says that no state needs to recognize another's marriage simply restates law as it was before DOMA. And indeed, if marriages really were subject constitution protection under FFAC, a simple statute could not overrule the Constitution.

It's been a while since I studied it, but there are some basic principles.

In reality, the recognition of out-of-state marriages has traditionally been a patchwork of different laws and policies. Traditionally, states relied on common law notions of comity (if you recognize our marriages, we'll recognize yours) but with some public policy limitations (we'll recognize your marriage, unless they are first cousins, because first cousins can’t marry in our state). This was very litigated in the past when marriage laws differed much more from state to state than they do now – common law marriage, age of consent, degree of kinship.

For opposite sex marriage, some of the states may still follow the common law analysis in some instances. But New York, for example, recognizes other state's marriages by statute. Even before New York had marriage equality, it recognized other states' valid same sex marriages. Thirty states have state constitutional provisions barring recognition of other states' same sex marriages, but which probably don’t change the laws on recognition of opposite sex marriages.

Some marriages are recognized for limited purposes as a matter of equity (a marriage between an older man and a 14-year-old girl that is valid in South Carolina might be recognized by another state only for limited purposes -- protecting the rights of the girl, but not imposing burdens on her).

I was unaware that states had been "dissing" out of state weddings for so long. I do remember that eloping across a state line used to be the thing to do if Mom and Dad refused permission. Lots of young couples in Florida (at least northern Florida) used to elope to border towns in Georgia to get married, and as far as I know, Florida never annulled their marriages, even between returning and becoming old enough under Florida law.

And I do remember that in the history books, Congress did delay the admission of Utah to the Union primarily because of the FEAR that other states would be forced under the FFAC clause to recognize Utah "harems" if they should move outside their state -- or that Mormons in other states would elope to Utah, get married, and return with a few new wives. Maybe they didn't have anything to worry about, but the "ick" factor was in play.

We may have to wait for a test case in which a gay couple moves to a state that does not allow gay marriage and demands some benefit under that state's law (such as filing a state tax return jointly, adoption, or custody of a minor child born to a previous heterosexual marriage), then appeals their refusal. Incidentally, now that DOMA is dead, gay couple CAN file a federal joint return (and if they choose not to, the feds would NOT allow them to file singly, only "married filing separately," but a non-gay-marriage state that says the state return MUST be filed using the same status as the federal return. If these states forbid joint state returns, but require the same filing status on federal and state returns, such a couple would be forced to file their federal returns as single, and since DOMA has been struck down, they could go to federal court and say the state is interfering with their legal benefits from the feds, and possibly strike down that portion of the state's income tax law, AT LEAST. Or the feds could actually interpret the FFAC clause as applying to marriage also. After all, no other contract requires two people to pledge their contract in front of a JUDGE (or the clergy of the couple's choice, who is thus acting as a judge for this purpose).

I wrote a long response, and the commenting system keeps saying 'Your submission contains invalid characters and will not be accepted'?

I just have plain text! I've moved it through a plain text editor, removed all formatting, etc., and keep getting the error message. I'm baffled.

Thinking Dem, it is desirable that all of us do our homework before making broad claims on blogs. As noted by others, your entire opening post was simply fallacious, since FFAC never applied fully to marriages. Volokh Conspiracy (conservative libertarians, but often quite smart) has had lots of discussion on the topic, with legally-trained posters and commenters.

States have had considerable leeway on accepting out-of-state marriages that they themselves would not license -- the real sticky issue has been 1st cousin marriages more than age, though. And I do know of a gay couple who adopted a child in New Jersey who had been born in North Carolina, and who then successfully sued North Carolina to issue a revised adoptee's birth certificate showing them, not the birth mother, as the parents -- probably on FFAC grounds, though I didn't follow the details. So FFAC is important for the many issues of family law, though not for marriages themselves. It's going to be messy, for sure.

As for polygamy: well, despite right-wingers' and evangelicals' constant references to it, I'm not aware of any suits or movements to have states recognize polygamous marriage; and since DOMA is a Federal case decided primarily on Federalism grounds, I can't see the Federal courts forcing the issue. If Utah did use, say, a referendum to change their state constitution to allow polygamy, however, it would be interesting to see whether DOMA logic required Federal recognition. But that would be the result of religious people getting what they wanted, not 'godless liberals' undermining faith, wouldn't it?

An adoption is usually in the form of a court decree, and is consequently entitled to recognition under the Full Faith and Credit Clause.

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Hopefully oblivion is what's next.

I agree with Arana on the marriage equality issue, of course, but I have to disagree with him about the idea that “religiosity” is “plummeting,” and that “religiosity” is necessarily inverse to support for gay marriage. While it is true that mainstream Christian churches have reported membership declines in recent years, other churches (including some fundamentalist churches, for better or for worse) are growing. There are even megachurches that are liberal and growing, as argued in this article:
http://www.examiner.com/article/what-nyc-churches-are-growing
There’s also a half-empty/half-full aspect to church statistics that liberals don’t always appreciate. We hear constantly about the 25% of millenials that don’t go to church regularly, but it’s rarely mentioned that that statistic means that 75% do go.

Moreover, it’s worth mentioning that devotion to Christianity does not have to equal opposition to gay marriage, and increasingly, it doesn’t. The pro-gay side in Maine, Maryland and Minnesota won partly because of religious outreach. Furthermore, polls show increasing levels of support among Christian voters, including one amazing statistic we should all celebrate–majority support among white evangelicals under 30:
http://www.washingtonpost.com/blogs/on-faith/wp/2013/06/27/after-doma-the-fading-future-of-religious-opposition-to-same-sex-marriage/

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