Op-ed: The next gay marriage battle

  • By Rich Lowry
  • Wednesday, July 1, 2015 6:01pm
  • Opinion

Everyone knows where the debate over gay marriage is going next. Now that the Supreme Court has imposed its edict on the land, the question is whether religious institutions and people of faith will still be permitted to act on moral beliefs that the court has portrayed as bigoted and deeply wounding.

In his long prose-poem about love masquerading as a judicial opinion, Justice Anthony Kennedy made a bow to these concerns. He cited the First Amendment for the proposition that religions and those that adhere to them “may continue to advocate with utmost sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” Gee, thanks, Mr. Justice.

This assurance is about as convincing as the rest of Kennedy’s airy majority opinion with little or no connection to the Constitution or law — which is to say, people of faith ought to brace for the worst.

Kennedy’s statement was carefully hedged to include only advocacy and teaching, a lawyerly wording that the other lawyers on the court were quick to pick up on. The First Amendment, Chief Justice John Roberts pointed out in his dissent, actually protects the freedom to exercise religion. That means people of faith acting on their beliefs, not merely advocating them or teaching them.

It’s easy to see the coming clash of moralities, one enjoying official favor, the other religious sanction. What Kennedy refers to as the “dignitary wounds” of the traditional definition of marriage are also inflicted by the private institutions and people who uphold that definition.

In oral arguments, Justice Samuel Alito asked Solicitor General Donald Verrilli whether, on the model of Bob Jones University a few decades ago when it banned interracial dating and marriage, a college that opposed same-sex marriage could be denied tax-exempt status. “It’s certainly going to be an issue,” Verrilli admitted. “I don’t deny that.”

At this juncture, most supporters of same-sex marriage do deny it, although they have a history of making whatever assurance seems necessary, before discarding it in due course. It used to be that prominent supporters of gay marriage pooh-poohed the idea of a judicial imposition of their view on the country. In the Supreme Court’s prior pro-gay-marriage decision, just two years ago, it said that domestic relations were exclusively a matter for the states — before turning around and throwing out state marriage laws not to its liking.

If supporters of same-sex marriage truly have no interest in punishing the exercise of religion they find objectionable, they can sign off on legislation to prevent it. Utah Sen. Mike Lee, a Republican, has a bill called the First Amendment Defense Act — yes, it’s come to that — protecting organizations from government retaliation over their opposition to gay marriage.

There is unlikely to be a rush on the left to endorse it, when the American Civil Liberties Union is heading in the opposite direction. It has just withdrawn its support for the Religious Freedom Restoration Act, on grounds that it can be used to protect organizations refusing to get on board with gay marriage. Already, there are a few calls to remove the tax exemption of churches, now opposed to what the Supreme Court has deemed a fundamental right.

These are only tea leaves. The move against religious groups will surely start small, with some isolated, unsympathetic Christian institution, and then grow until what once had been called unimaginable becomes mandatory.

The push for gay marriage is motivated by a moralistic zeal that sees only one point of view on the question as legitimate. If its supporters weren’t patient enough to see their cause through the inevitable fits and starts of the democratic process, they aren’t going to let procedural niceties stand in the way of an effort to bulldoze their way to a more thoroughgoing conformity on the issue. The gay-marriage debate isn’t over; it has merely entered a new phase.

Rich Lowry can be reached via e-mail: comments.lowry@nationalreview.com.

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