From what he bizarrely frames as a conservative perspective, Joseph Curl has penned a Washington Times op-ed ripping the purportedly out-of-touch reaction by Republican presidential candidates to the Supreme Court’s same-sex marriage (SSM) ruling.
Mr. Curl takes Ted Cruz, Carly Fiorina, Bobby Jindal, Mike Huckabee, and Scott Walker to task over their harsh criticism of the ruling in Obergefell v. Hodges. A bare 5-4 majority of the justices compelled all fifty states to issue marriage licenses to same-sex couples. Thus have five unelected lawyers wrested control over the definition of marriage from the people of the states, to whom the Constitution commits it.
Curl says the candidates have embarrassed themselves. The only embarrassment, besides the decision itself, is Curl’s defense of it.
In lauding Obergefell, he equates state refusals to license SSM with anti-miscegenation laws. It is a frivolous analogy, yet one Curl sees as a showstopper: “First, let’s do one simple exercise: Substitute ‘interracial’ for ‘same-sex.’ Argument over.”
As Justice Clarence Thomas put it in his dissent, “The suggestion … that anti-miscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate.” Prohibitions on interracial marriage, Justice Thomas elaborated, trace directly to the “sordid history” of slavery and the post-Civil War white supremacy system. In stark contrast, the “traditional definition of marriage,” which has prevailed in every society that has recognized marriage throughout human history,
arose not out of a desire to shore up an invidious institution like slavery, but out of a desire to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world. [Citations and internal quotations omitted.]
In his dissent, Chief Justice John Roberts similarly explained that the repeal of racial restrictions on marriage “did not … work any transformation in the core structure of marriage as the union between a man and a woman.” SSM, to the contrary, radically alters the nature of the institution and the purpose for which it was established.
Curl’s supposed argument-ender never gets out of the starting block.
The columnist also blithely dismisses the notion that First Amendment religious freedom is under assault. As if the rest of us are too clueless to discern what he so clearly sees, Curl proclaims that the Court’s ruling has nothing to do with “marriage in a church – in the eyes of God.” “Religions,” he maintains, “will decide who they will marry[.]… The ruling means only that gays can get a license from the government” and receive other legal benefits (Social Security benefits, joint tax filing, hospital visitation, and adoption rights) on the same basis as traditional married couples.
Really? Even as it urged the Court to impose SSM on the states, the Obama administration acknowledged that such a ruling could have serious repercussions. At oral argument, in answer to a question posed by Justice Samuel Alito, the president’s solicitor general, Donald Verrilli, candidly conceded that the tax-exempt status of religious organizations could be denied if they fail to embrace SSM.
It is easy to see why. In the Weekly Standard, Adam White points out that Supreme Court precedent already holds that religious schools may forfeit their tax-exempt status for discrimination policies that run afoul of the Court’s construction of the Fourteenth Amendment. The Fourteenth Amendment, of course, is the principal source of the Court’s newly manufactured right to SSM. Thus Verrilli’s shot across the bow was logical and predictable.