You readers know that religious liberty is a big issue for me, and that I am very concerned about what the new political, legal, and cultural order is going to mean for individual Christians and Christian institutions. I am also very concerned that Republican presidential candidates haven’t been talking about it much — and most recently, concerned that those who have started talking about it are doing so in a way that’s so unrealistic that it amounts to pandering.

Let me explain.

Scott Shackford at Reason blasts Ted Cruz and Marco Rubio for the way they’re going after social conservative voters on the issue. He points out that Cruz, who has been working this beat for a while now, and Rubio are telling Christian voters that they will work to roll back same-sex marriage, including the Obergefell ruling. The truth is, they will not do this, or if they try, they have no hope of succeeding.

There is no meaningful constituency for it. As a socially conservative Christian, I may not like it, but same-sex marriage is here to stay. Our side lost this battle in the culture war. We could not even get a Constitutional amendment to protect traditional marriage out of the Senate in 2005 and 2006, when most Americans still opposed gay marriage, and when we had Republicans running the Senate and in the White House. George W. Bush ran for re-election in part on protecting traditional marriage, but after he was returned to office, he spent zero political capital pushing for the Federal Marriage Amendment.

Neither will Cruz or Rubio, given how vastly more difficult it would be to get an FMA passed now, or to get through Congress a Supreme Court nominee who would overturn Obergefell. I’ve told you readers that Congressional Republicans aren’t going to touch any of this. I’m not predicting that; I know it, because I’ve been told this by sources on Capitol Hill. When Ted Cruz and Marco Rubio tell you otherwise, they are either lying to you, or lying to themselves.

And here’s the most frustrating thing about it, from Shackford:

This should have been or could have been an opportunity for conservatives to shift to a differentiation between how the government treats gay people as a legal matter and how private individuals treat gay people. As Elizabeth Nolan Brown noted after attending a summit about the future of LGBT activism, there is very little interest among these leaders in discerning between public and private discrimination. Unfortunately, it looks like conservatives aren’t willing to recognize the difference either. They want to tie demands for private individual expression of religious beliefs (by being able to decline to provide goods or services for gay weddings, for example) with the public issue of how the government treats same-sex couples.

It’s frustrating because this could have been an opportunity for the GOP to look at what comes next and figure out how conservative politics could adapt to a shift in legal recognition while still preserving individual liberty.

Yes, exactly. For background, read Shackford’s long piece in Reason talking about the emerging clash between gay rights and individual liberties favored by libertarians. Shackford, like many libertarians, favors gay marriage, but is troubled by the threat the gay civil rights movement is posing to religious and individual liberties. Excerpts:

Now that government discrimination is largely tamed, gay activists are going after private behavior, using the government as a bludgeon. After a long alliance with libertarians, the two camps could be settling into a new series of conflicts.

Libertarians and gay activists were aligned in the pursuit of ending government mistreatment, but libertarians draw a bright line between government behavior and private behavior, arguing that the removal of state force is the essential precondition for private tolerance. Many gay activists believe that government power is a critical tool for eliminating private misdeeds. What many activists see as righteous justice, libertarians see as inappropriate, heavy-handed coercion.

Now that gay marriage is a settled matter, it’s worth taking an inventory of political issues frequently raised within the LGBT activist community to see where the two groups’ values line up and where they conflict.

Among them:

Another major divide between libertarians and many gay activists—with the American Civil Liberties Union (ACLU) and state-level civil rights commissions coming down on the latter side—involves religious business owners who don’t want to provide their goods and services for gay weddings. We’re now seeing additional concerns that religious colleges could be punished for not accommodating gay couples, and some have floated the idea that churches that pursue such policies shouldn’t have nonprofit status anymore.

Another major divide between libertarians and many gay activists—with the American Civil Liberties Union (ACLU) and state-level civil rights commissions coming down on the latter side—involves religious business owners who don’t want to provide their goods and services for gay weddings. We’re now seeing additional concerns that religious colleges could be punished for not accommodating gay couples, and some have floated the idea that churches that pursue such policies shouldn’t have nonprofit status anymore.

The freedom to choose with whom to associate is a fundamental human right. The ability to engage freely in commerce is another one. As such, libertarians have always defended the ability of religious businesses and individuals to say “no thanks” to potential customers.

This is not just about faith. Religion happens to be the framework for this debate because the people who want to discriminate against gay customers are doing so while citing their religious beliefs. But any regulation that inhibits individuals’ right to choose with whom they trade or do business needs to be treated as suspect. To justify restrictions on this freedom, the government has to prove that inaction would produce a significant amount of harm.

That’s obviously not the case when it comes to the provision of marketplace goods. Nobody has presented a credible argument that gay couples are unable to buy wedding cakes or hire photographers. There is no actual “harm”—at worst, just inconvenience and insult.

When Mark Silverstein, ACLU legal director in Colorado, helped a gay couple sue a bakery that had declined to provide them a wedding cake, he asked: “If a business owner is allowed to simply cite personal beliefs as a basis for turning away same-sex couples, then what stops a doctor from denying medical care to the child of same-sex parents or a police officer from refusing to defend a church or a synagogue?” The proper response is that cops are prevented from discriminating by law, and doctors by professional oath. But beyond that, we have little reason to believe that most people want to discriminate against gay, lesbian, or transgender customers. The burden created by those who do is remarkably small and can be remedied without government intervention.

There was a time—and it was not so long ago—when many businesses and individuals who supported gay rights felt the need to contribute to the cause as secretly as possible so as to avoid adverse reactions from their straight customers. Flipping the switch on who gets punished for their beliefs, especially when the penalties are administered by the always-domineering state, is not justice.

Read the whole thing. Shackford, a gay libertarian, also talks about workplace discrimination, adoption, trans rights, and bullying in school. He concludes that now that government-sanctioned discrimination is ending, “I’d much rather see my peers embrace a world where we are all equally free to decide the terms by which we deal with each other, not one where we seize the same government powers that were once used to abuse us and use them to pummel our ideological opponents.”

What I wish my own side would understand is that what Shackford and those like him offer is the best that social conservatives can hope for today. Aligning with libertarians on this issue is the best way to protect churches, religious schools, parachurch organizations and other religious institutions from the government and gay rights organizations out to crush opponents. We have to hope that despite what the loudest voices on the left say, there are enough Americans who want to leave religious groups alone to run their organizations as they see fit, and who recognize the bullying of gay rights activists as a threat to the common good. This is all we have left. 

The only defensible battle line left to social and religious conservatives is exactly where Shackford identifies it: at the divide between how the government treats gays and private expression of religious belief. Republican politicians who take the Cruz and Rubio approach are not serious, and should not be taken as serious by Christian voters. Talk to the conservative Christians who are working deep in the movement to protect religious liberty in the new order, and you’ll hear a very different story than what Cruz and Rubio and the professional religious conservatives (always eager to raise more money and increase their status within the Republican Party) are telling voters in the pews.

As you know, I believe that we religious traditionalists should take the Benedict Option, which is a strategic withdrawal into our churches and local communities, thickening our religious belief and practice and strengthening our ties to each other — this, for the sake of creating institutions and communities that will be strong enough to endure the long post-Christian night. In order to create the private space to be left alone, we have to engage politically. There’s no doubt about it. But we have to engage with strategic intelligence, and not satisfy ourselves with sacrificing our achievable liberties for a lost cause.

This is not Wilberforce Option-style acquiescence, but rather an attempt to use politics and the law to shore up defenses around private spaces and the First Amendment. Even if it overturning Obergefell were possible — a very long shot! — doing so would only temporarily halt same-sex marriage in some states, and the fight to obtain that goal would be so destructive that it would devastate any goodwill towards conservative Christians.

Cruz, Rubio, and these other Christian conservative political generals are fighting the last war. Whether they are doing so cynically or with misguided sincerity, I cannot say. I don’t know their hearts or their minds. What I do know is that they are wrong: the gay marriage cause has been definitively lost. I also know that libertarians are right that the threat to religious liberty is real. We traditionalist Christians have neither the time, nor the money, nor the political capital to waste on lost causes, when there remain some that we might yet gain.