Ordered Liberty

No, GOP Candidates Did Not 'Embarrass' Themselves in Rebuking the Supreme Court’s Same-Sex Marriage Ruling

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.

Equally predictable are the ruinous legal fees soon to mount on religious believers and organizations that decline – based on doctrinal tenets rooted in millennia of human experience – to endorse SSM. Pace Mr. Curl, the problem is not that churches will be stripped of the power to decide whom they will marry; it is that their decision will be fraught with crushing consequences. Moreover, it is almost beside the point that religious organizations and believers may win some of the inevitable court challenges; the issue it is that the process is the penalty: legal fees, potential fines and damages, decertifications, and litigation insurance costs will be prohibitive. The specter of court and administrative proceedings will strong-arm conscientious objectors into compliance.

Make no mistake about where we are heading. To respect the First Amendment rights of religious believers and entities – to live and let live – does not deny the rights of gay couples. The latter will have plenty of providers willing (indeed, enthusiastic) to marry and, say, extend adoption services to them. But the Left is not after tolerance. The Left demands endorsement of its agenda and the eradication of dissenters.

Justice Kennedy, in a seemingly magnanimous nod to the benighted masses, assures religious believers that they may still “advocate” against SSM and “teach” their principles. But the First Amendment guarantee is actually free exercise of religion, not free advocacy or teaching. “Ominously,” Chief Justice Roberts notices, exercise “is not the word the majority uses.” The Roberts dissent continues:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to [SSM] – when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed [SSM]…. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Indeed … and the lack of comfort is not just over how free-exercise claims will ultimately fair. Believers will have to spend a king’s ransom to defend the rights the First Amendment is supposed to guarantee.

In denial about these very real perils, Curl serves up Beltway 101: No matter of principle – not freedom of conscience, not free expression, not democratic self-determination – is ever worth fighting for. However inadvertently, his “conservative” refrain comes straight from the Left’s songbook: to oppose SSM is to be “on the wrong side of history.”

In his telling, SSM – an upheaval reversing thousands of years of culture and tradition – is “the very definition of conservatism.” This, he writes, is because “conservatives decry government intrusion into the lives of Americans, and what could be more intrusive than government setting boundaries on – love?”

Mr. Curl has been reading too many dime novels or Anthony Kennedy opinions. The preservation of marriage as understood for millennia does not inhibit love at all. Nor does it preclude same-sex couples from enjoying many of the legal benefits attendant to marriage that various state laws have extended to domestic partnerships. And what is far more intrusive than Curl’s imaginary intrusion on “love” is the very real judicial usurpation of the American people’s right to democratic self-determination.

That usurpation is what has conservatives aghast, and it should also alarm millennials. Curl complains, to the contrary, that millennials must be overjoyed, and therefore that GOP candidates are undermining their prospects by deriding the Court’s decision. According to Curl, it was largely President Obama’s reversal from a posture of opposition to full-throated support for SSM that won him reelection in 2012, cinching the strong support of the 18-to-25-year-old demographic.

This is a simplistic analysis. Obama’s support from young voters was actually stronger in 2008, when he was pretending to be against SSM, than in 2012 when he swung to support for SSM. His volte-face was less a plea for millennial support than for reopening the stream of campaign funding from deep-pocketed gay supporters – it had dried up considerably over exasperation with Obama’s SSM gamesmanship.

Curl is right that, as a class, young voters perceive themselves to be more “progressive” than the broader population. But that just means they had several grounds other than the late-inning flip-flop on SSM for supporting Obama and eschewing his opposition. Does Curl really think that, were they mum or even supportive of the Supreme Court’s SSM ruling, GOP presidential candidates would suddenly be praised by university professors, pop culture icons, the media, and others who powerfully influence the young?

Presumably, he knows that would never happen. What would happen, though, if Republicans were to follow his advice is an exodus of the party’s base supporters. Without those backers, GOP candidates have no chance of electoral success.

Fortunately, there is a principled position that can have appeal across demographic groups. Competent GOP hopefuls should argue that millennials were winning the SSM debate in the only places it where should have been decided: the states, through the democratic process. The Supreme Court robbed them and the nation of the legitimacy that democratic outcomes earn: the acceptance that democracy’s losing factions grant because they have had their fair chance to persuade their fellow citizens.

Worse, Kennedy’s “substantive due process” rationale for the majority’s SSM ruling is the same theory on which the Court relied in its infamous Dred Scott ruling, endorsing the “property” rights of slave-owners and helping instigate the Civil War. Robed oligarchy is a knife that cuts both ways.

The frightening government intrusion on our lives is the Supreme Court’s denial of our fundamental right to self-determination, to govern ourselves. One cannot explain that without first grasping it. Mr. Curl appears not to.