After the 2008 election, I wrote a Dallas Morning News column (now behind the paywall) in which I contended that social and religious conservatives had lost the argument over same-sex marriage, and that we would be smarter to retreat behind defensible borders.
By that I meant the following:
1) We should understand that this was not an argument we were going to win, in part because the elites, especially in the media, were dead-set against us, but mostly because SSM makes sense given how most people today, especially younger Americans, think about marriage and sexuality. In short, they believe marriage and sexuality has no intrinsic value, that it only has expressive value. In other words, sex and marriage are seen primarily, and perhaps entirely, as an expression of emotions partners have for one another.
For traditionalists — and remember that this was virtually everybody until very, very recently — it’s not that same-sex couples do not and cannot love each other; obviously they can, and do. It’s that their love cannot be marriage, in the same way the mail carrier cannot be Napoleon. It’s possible to explain this, and it has been explained by smart trads, but by this point, doing so is useless. If gay people did not exist, the culture would still have reached this conclusion about the meaning of sex and marriage. If it had not, we wouldn’t have the divorce culture. But because the culture has already accepted that this is what sex means, and this is what marriage means, it is perfectly logical that gay folks would want to participate in it, and that many people, especially those younger people raised post-Sexual Revolution, would see no rational basis for denying them.
On my most charitable days, I tell myself that this is why the cultural left, and even younger adults on the right, call trads “bigots”: because they cannot understand how anyone in his or her right mind could disagree with them. Therefore, disagreement can only be a sign of irrational prejudice and bad character.
Besides, even more consequential to this debate than the shift in sexual and marital mores, we have become a culture in which the pursuit of happiness is valued far more than the pursuit of virtue. Specifically, the pursuit of individual happiness is more important than the pursuit of communal virtue. This is what social conservatives have had to argue against, and it has been a losing proposition. Support for privileging traditional marriage is collapsing so quickly because the cultural revolution of the postwar period washed away the philosophical and psychological foundations for traditional marriage. The point I wanted my fellow social conservatives to grasp is that this is not a winnable argument.
2) The Republican Party is not going to do anything significant to protect traditional marriage. The high water mark of anti-SSM feeling was the 2004 election. In its aftermath, Sen. Rick Santorum and other social conservatives once again brought forth a Federal Marriage Amendment to the Constitution. It never made it out of the Senate, and despite campaigning on supporting it, and mild public statements supporting it, President Bush never really got behind it. If, in the wake of Bush’s re-election, with Republican control of both houses of Congress, this amendment couldn’t even make it out to the states for deliberation, because the GOP wouldn’t prioritize it — well, that was the handwriting on the wall. The Republicans were happy to run opposed to gay marriage, but when they had the only truly meaningful opportunity to stop it, they balked.
3) SSM opponents would do well to abandon the fight against SSM, and instead focus on the threat SSM poses to religious liberty — this, while there is still the prospect of energizing a majority of people to protect religious liberty.
Though it is repeatedly, even hysterically, denied by SSM proponents, SSM is a clear threat to religious liberty. It is virtually impossible to argue about this with SSM backers, because they insist religious liberty begins and ends with preachers being able to voice opposition to homosexuality, and having the right to refuse to marry gay couples in their houses of worship. This is a straw man, and always has been. The thing to read is this 2006 piece surveying prominent legal scholars, including some who favor SSM, explaining why there is an irresolvable clash between gay civil rights and religious liberty. Something’s got to give.
Nobody, least of all journalists, wants to hear it, but the clash is built into our legal framework. Marriage touches all kinds of laws. Anthony Picarello, general counsel of the Becket Fund For Religious Liberty (which defends religious liberty cases involving all religions) said of same-sex marriage:
“The impact will be severe and pervasive,” Picarello says flatly. “This is going to affect every aspect of church-state relations.” Recent years, he predicts, will be looked back on as a time of relative peace between church and state, one where people had the luxury of litigating cases about things like the Ten Commandments in courthouses. In times of relative peace, says Picarello, people don’t even notice that “the church is surrounded on all sides by the state; that church and state butt up against each other. The boundaries are usually peaceful, so it’s easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter.”
The truth of all this will be made apparent to everyone when SSM becomes constitutionalized, and religious organizations and religiously devout employers are compelled to offer benefits to their gay employees and their spouses, or face government sanction, including loss of tax-exempt status. For many churches, charities, and religious organizations operating on tiny financial margins, that tax-exempt status means the difference between existing and not existing.
I was not at the time, and still am not, a lawyer, but I wrote in 2008 that social conservatives ought to be putting their money, their strategizing, and their public activism behind building some kind of legal firewall to protect religious liberty once SSM becomes the law of the land. It was my guess that most Americans who favor SSM don’t want to punish churches and religious charities who disagree. We should appeal to them while they still exist.
(Incidentally, by no means do I believe this irenic view is held by all pro-SSM folks. For some, it is not enough that gay couples gain the right to marry; religious “bigots” must be made to suffer, as payback. You hear this week that conservatives could have had peace with the SSM movement if only they had granted civil unions a few years ago, but they refused. Anybody who believes that revisionist nonsense need only look at California, where gay couples had civil unions, and all the legal benefits of marriage, without calling it marriage. That wasn’t good enough. They wanted it all, because to deny it all would be to give some quarter to Bigotry, and we can’t have that.)
The bottom line is that we are fast reaching a place in which before the law, churches that adhere to traditional religious teaching on homosexuality in practice will have the same status under federal civil rights laws as racist churches. Religious conservatives may argue that discrimination against homosexuals is not the same thing as racial discrimination, because there is, in Jewish, Christian, and Islamic teaching, a moral aspect to sexual behavior that is not present in race — they can argue this, and they would be correct, but nobody cares, because the culture in general is coming to accept that there is no particular moral status inherent in homosexual behavior. Nor, for that matter, in most heterosexual behavior.
This is what it means to live in a post-Christian culture. We may wail and moan and gnash our teeth, but we had better get used to it.
In short, I argued in 2008 that social conservatives ought to take sober stock of the battlefield, and use the time we had to carve out some living space for ourselves in the America that was fast coming into being. For this, Maggie Gallagher, who really has been brave and tireless in fighting for traditional marriage, called me a defeatist. I can understand why she felt that way at the time, but what she called defeatism looks today, in 2012, like realism. For the first time ever, three states have legalized same-sex marriage. This is the wave of the future. The people who most strongly oppose SSM are literally dying off. Social conservatives like to tell ourselves that young people will become more socially conservative as they get older, and maybe that’s true. But I see no reason to believe that they will change their mind on same-sex marriage, even if they become more socially conservative in their habits. The fact is, gay marriage is becoming a normal part of bourgeois life. If young people do get more socially conservative as they age, that will likely express itself not in an embrace of traditional views on marriage, but rather in a sense that their gay friends really ought to settle down and marry their partner and lead a more stable, respectable life.
What does this mean going forward? Religious and social conservatives cannot abandon what we believe to be true. What we can do — what we must do — is stop trying to turn back a tide that started rushing in half a century ago, and instead figure out how to ride it without being swamped or drowned by it. Our best legal minds need to figure out the best possible, and best possible, legal protections for religious liberty in the coming environment. Our most able socially conservative politicians need to start talking all the time about religious liberty in relation to same-sex marriage, and not in an alarmist way (“We’ve got to stop gay marriage before they destroy our churches!”) but in a sober, realistic way that opens the door to possible political compromise with Democrats of good will.
It may already be too late for that. Any attempt by moderate Democrats to compromise on religious liberty will be denounced by many liberals as selling out to bigotry. And for all I know, it really will be impossible, under the US constitutional framework, to carve out meaningful exceptions for religious liberty within civil rights law.
But we have to try. What else is there? Republicans can’t join the SSM crusade without alienating us social conservatives, who constitute a huge portion of their base. Choosing to remain silent on the issue is cowardly and stupid, if only because it allows the liberal, pro-gay narrative that all we are is troglodytic bigots to go unchallenged. Now is the time for creative reappraisal of our position, and the most prudent way to advocate for our interests within a changed, and rapidly changing, political and social context.
There are practical political benefits from this exercise too, benefits that go beyond the SSM issue. I fear that strong socially conservative Republican leaders like Bobby Jindal, my own governor, may be fatally compromised at the national level precisely because they have been so strong on the gay marriage issue. If Republicans like Jindal spend the next few years thinking and talking about the issue in terms of religious liberty, and in terms of the need to find a live-and-let-live compromise that maximizes religious liberty within a marriage-law culture that accepts SSM, then this might neutralize the issue as something that can be used against them. To be clear, I’m not talking about Republican pols adopting this strategy as a cosmetic approach; they would have to be sincere, because I see no realistic possibility that the country is going to come around to the socially conservative position on same-sex marriage.
To put it another way, at the political level, social conservatives are going to have to start thinking and talking about gay marriage in a libertarian way. As a general matter, the way you succeed in American politics is by framing issues in terms of expanding liberty. This is not how conservative traditionalists (versus libertarians) think, but if we are going to protect our churches and religious institutions, we are going to have to start approaching SSM in this way. This is not a matter of sleight of hand; it really is true. The expansion of gay civil rights inevitably means a retraction of religious liberty rights for tens of millions of Americans who belong to and practice traditional Abrahamic religion. The media doesn’t talk about this, for obvious reasons, but there’s no reason why Republican politicians shouldn’t talk about it. Highlight the illiberality of SSM proponents who demand that religious folks give up a significant degree of their liberties. The dominant narrative — the only narrative — in American public discourse today is that gay people only want the same liberties that others have, and that conservatives, especially religious conservatives, want to deny them liberty. Republican politicians must start talking about the other side of the liberty story, and position themselves as being the more liberty-minded, in that they are willing to forge a strong and meaningful compromise. Even if that compromise proves elusive, at least it will change the image of conservative Republicans as implacably opposed to SSM, by shifting them to a position of conditional acceptance. We social conservatives don’t have to like SSM, but we are fooling ourselves if we don’t recognize that it is inevitable in post-Christian America, and we had better figure out the best possible arrangement to protect ourselves and our institutions while there is still time.
If you disagree, then tell me: What else is there? If you have a better idea, let’s hear it, because what we’ve been doing is not working.
(Note to readers: I’m going on a deep-sea fishing trip later today, and won’t be back till Friday night. If you don’t see your comment posted for a while, don’t assume I’ve banned it; I may not have had a chance to see it yet. OTOH, maybe I won’t post it; the SSM topic tends to bring out the worst in commenters. Note well that I’m not going to post comments from readers who simply rehash the same arguments, or sling the same insults. If you have a thoughtful critique, for or against what I say here, then let’s hear it. If you just want to rant or be snarky and abusive, spare yourself the exertion of typing, because I’m not going to post it.)
UPDATE: I’ll be leaving within the hour, but let me spare at least some of you commenters some trouble. If you plan to assert any of the following straw men, or base your comment on them, I’m not going to post your remark the next time I have access to the Internet:
1) that the “religious liberty” at issue is only about churches etc. being forced to marry same-sex couples or having their right to preach curtailed;
2) that there will not and cannot be any meaningful restriction of religious liberty from the progress of gay civil rights;
3) that there is no rational theological basis for religious traditionalists to oppose gay rights (I mean this mostly for intra-Christian argumentation)
These straw men are dogmatically asserted over and over and over, and nothing anybody says to the contrary makes a lick of difference. I’m tired of it.