The Supreme Court is expected to rule that defining marriage to be only between one man and one woman denies equal protection under the law and is therefore unconstitutional. The court could even rule that opposition to same-sex rights is generally discriminatory under the civil rights laws. That will be the law—and that is that.
Those with religious objections will be expected to forget about it and get on with their lives. But will they be able to do so?
When Barronelle Stutzman, the Southern Baptist owner of Arlene’s Flowers, was asked to cater a gay wedding in Washington state, she held hands with the customer, pleaded she could not religiously attend such a function, and referred the customer to three other florists. Still, she was fined $1,000 for discrimination and the American Civil Liberties Union lawyers demanded such high legal fees that the business went bankrupt. The florist was still ordered to perform these services she found religiously objectionable for any future such weddings.
Photographer Elaine Huguenin politely declined to photo a gay wedding and was ordered to appear before the New Mexico Human Rights Commission even though a replacement photographer had been hired. The Commission ruled that the Religious Freedom Restoration Act exemption for religion did not apply to any business open to the public and the state supreme court concurred. In a unanimous verdict the court ruled: “When Elane Photography refused to photograph a same-sex commitment ceremony, it violated the [New Mexico Human Rights Act] in the same way as if it had refused to photograph a wedding between people of different races.” The cost for such discrimination was $6,637.94 in fines and attorneys’ fees.
In 2013 Oregon, Aaron and Melissa Klein asked to be excused from baking a cake for a lesbian wedding as being against their Christian beliefs and were threatened with a $135,000 anti-discrimination fine for “emotional distress” inflicted on the gay couple. When the Klines went on the “crowdfunding” web GoFundMe, they raised much of the fine but were denied further blog space by GoFundMe after complaints of discrimination. In a Colorado case its commission ordered a baker with religious objections to cater a gay wedding, with one commission member proposing “reeducation” to cleanse the baker and his staff of their “despicable” discriminatory language implying gay inequality.
So, the choice for those with religious concerns may be between violating their religious beliefs and being fined and ordered to comply in any event. The response of the most important institutions opposing this possibility—headed by the influential Family Research Council—is to insist upon a religious exception to discrimination charges based upon the First Amendment right to “free exercise of religion.” Yet, the presumption in such cases would still be against discrimination, requiring a special religious exemption, which in a secular legal (as opposed to legislative) culture might seem unwarranted. The probable Democratic presidential nominee Hillary Clinton seems suspicious of such an exemption. In a speech to the “Women in the World Summit” she argued that “deep-seated cultural codes, religious beliefs and structural biases have to be changed” for women to have free access to their rights, specifically criticizing the family firm Hobby Lobby for refusing contraception coverage to its employees on religious grounds.
Recognizing the limits of appeals to religious rights to those indisposed to them, religious leaders led by James Dobson and Franklin Graham responded with a Pledge in Solidarity to Defend Marriage proclaiming,
Experience and history have shown us that if the government redefines marriage to grant a legal equivalency to same-sex couples, that same government will then enforce such an action with the police power of the State. This will bring about an inevitable collision with religious freedom and conscience rights. The precedent established will leave no room for any limitation on what can constitute such a redefined notion of marriage or human sexuality. We cannot and will not allow this to occur on our watch.
The signers pledged “obedience to our Creator when the State directly conflicts with higher law” in redefining marriage and rights, reflecting back to Martin Luther King’s “civil disobedience,” refusing to obey unjust laws that are “out of harmony with the moral law.” It is true, as critic James Poulos notes, that such an appeal by religious conservatives will be seen as ideological and partisan unlike King’s appeal to universal conscience; but he assumes the goal would be to change public opinion. Such a strategy would more follow Charles Murray’s recommended course of action against excessive economic regulation, to clog the administrative machinery of government and force the authorities to concede, which come to think of it was also a large part of King’s success.
Federalism could be a resource too. Texas State Rep. Cecil Bell introduced a bill to prohibit state and local officials from using state funds “to issue, enforce, or recognize a marriage license … for a union other than a union between one man and one woman.” The gay group Equality Texas claimed the bill sought “to subvert any ruling this summer by the U.S. Supreme Court” and could at least tie the issue in litigation for years. The end of its legislative session stalled the bill but the sponsor claimed he had majority support and would be back next session to try again.
Facing a U.S. court order finding Alabama’s law defining marriage as a union between a man and a woman unconstitutional, the state’s Supreme Court Chief Justice Roy Moore ordered probate judges under his supervision not to issue marriage licenses to same-sex couples. The federal court modified its order to apply to state judicial officials but the matter is still under higher level judicial review. In May, its state senate even passed a bill 22-3 to end licenses for marriage entirely, which would become simple contracts filed with its probate offices.
Such actions are not without some popular support. The Associate Press recently found that 57 percent of Americans would allow businesses with religious objections to refuse to serve gay weddings, even though the public was evenly split on favoring or opposing gay marriage and on whether the Supreme Court should rule that gays have a national constitutional right to marriage. An earlier poll by the Christian research firm LifeWay was surprised in its national poll that 59 percent said marriage should not be “defined and regulated by the state” at all and 49 percent said “religious weddings should not be connected to the state’s definition and recognition of marriage.”
It looks like gay rights will reprise the abortion issue. The Supreme Court will probably declare a constitutional right to same sex marriage and this will encourage gay rights supporters to enforce and expand discrimination against these new rights. But opponents will be invigorated too, winning some victories locally, with more conservative states limiting the effect of the national decisions on marriage and discrimination as they have on abortion. Over the years the latter strategy has had enormous success in limiting the original Roe v Wade abortion decision and even in changing national public opinion on its legitimacy.
The next phase of the culture wars will result in some very interesting political changes.
Donald Devine is senior scholar at the Fund for American Studies, the author of America’s Way Back: Reclaiming Freedom, Tradition, and Constitution, and was Ronald Reagan’s director of the U.S. Office of Personnel Management during his first term.