Politics Foreign Affairs Culture Fellows Program

What Hill Do We Die On, Then?

If Kim Davis's cause is lost, which ones should religious conservatives see as worth defending?

I have said these past couple of days that as gay rights and the ideology at its heart continues to conquer our culture, I expect us small-o orthodox Christians to have to take a hard, sacrificial stand against the state and society, for the sake of religious liberty. Kim Davis’s situation, I’ve said, is not the hill to die on.

The reason for this is certainly contestable, but here it is, in a nutshell.

1. Kim Davis’s position is unwinnable. Nobody seriously expects her to get gay marriage overturned, or even to succeed in carving out a special zone of protection for public officials who, for reasons of conscience, refuse to carry out lawful decisions of the courts. Even if we believe that the Obergefell decision lacks moral legitimacy, there can be no doubt that as a matter of legal procedure, the Supreme Court’s decision is the law. Our side lost that battle decisively. Kim Davis’s stance, while it may be personally courageous, is going to result in another defeat, because it cannot be otherwise in our system. The only point of backing it is to flip the bird to the state and to the broader culture — something I have great sympathy for, but it’s a pointless gesture that can only hurt us in the battles to come.

2. This is because the cause of religious liberty will become synonymous in the public’s mind with a government official refusing to obey the law because it conflicts with her Christian beliefs. It matters a great deal that Kim Davis is an official of the state. By definition, her role is to execute the laws of the state. Many people, even many conservatives who may well oppose Obergefell, and who care about religious liberty, hold it to be unreasonable to expect state officials to reserve the right to decide which of those laws they will enforce. The political danger here is that when the public hears “religious liberty,” they will think about Kim Davis and her special pleading for a right that, if it existed, would mean anarchy. Angry Christians should consider how they would feel if “religious liberty” meant that a sharia-observant Muslim elected official refused to grant a building permit to a congregation for a new church because it conflicted with his religious beliefs. This is how many people in this post-Christian country — and it is that — see us re: Kim Davis.

3. The day is fast coming when we will have to fight big and important battles that have not yet been decided. When that happens, we will need the support of fair-minded Americans who may disagree with us on gay marriage, but who still, in some way, hold to the unfashionable belief that religious liberty really does matter. If we have wasted our already-diminishing political capital on vain protest gestures like Kim Davis’s stance, we are going to find it much harder to win the legal and political contests to come.

So, if Kim Davis isn’t a hill to die on, what is? It’s a fair question. Broadly speaking, my answer is this: when they start trying to tell us how to run our own religious institutions — churches, schools, hospitals, and the like — and trying to close them or otherwise destroy them for refusing to accept LGBT ideology. This is a bright red line — and it’s a fight in which we might yet win  meaningful victories, given the strong precedents in constitutional jurisprudence.

But court decisions do not come from some Platonic realm; judges are shaped by the same cultural forces that shape all of us. Many, many Americans — certainly those in the media, and other opinion-shaping institutions — see our stance as motivated solely by bigotry, and therefore morally illegitimate. These judges, and the elected representatives who appoint them, will lose the ability to understand why “bigotry” should be tolerated. Similarly, we are already losing many Christian institutions — like colleges and universities — who have embraced the new order, and who by their example, signal to judges and the wider culture that Christianity is compatible with affirming LGBT ideology. More and more, the small-o orthodox Christians are going to be seen as being weird, backwards holdouts.

It still might be okay, for a while; the courts might yet recognize our right to be weird and backwards, within our own spheres. But we know the intense malice with which this campaign has been waged, and will continue to be waged. I am under no illusions that the other side will ever like us if we simply be nice. I think that is a false comfort many conservative Christians, especially the young, hold, and I think experience will eventually strip them of that hope. What I’m talking about is shepherding our limited political resources in a strategic way, anticipating the battles ahead and conserving our ammunition to fight the ones we can win.

It is unromantic, I know. But the cause of protecting marriage in the law is lost; we religious conservatives have got to stop being so reactive, and start being proactive, preparing to play the long game. At this point, it’s not about winning the marriage fight. That’s over, and we were defeated decisively. Now, it’s all about protecting the liberty of our institutions in a post-Christian society. Cases like Kim Davis’s are all about fighting the last, lost war; engaging on that hopeless battlefield can only compromise our ability to fight effectively on the ones just ahead.

I would like to ask religious conservatives in my readership where you think the hill to die on is. Explain your answer.

UPDATE: Recall this post from April, based on my interview with “Nick,” a Christian political strategist working at a high level on religious liberty issues. Note that this is pre-Obergefell. Excerpts:

Nick said that religious conservatives have to face one hard, cold fact: Trying to win the cultural battle over the proper boundaries of human sexuality in the short term is impossible in the absence of another Great Awakening, which is not a political strategy.

“The best we can hope for is to lock in legal protections while we can – laws that allow us to live our own lives within a hostile culture,” he said.

If we do that we can fight to a draw on the cultural argument over whether Judeo-Christian sexual ethics are akin to segregation, but we will not win the argument if we’re seen as arguing that it’s okay to discriminate against gays and lesbians.

Everybody knows that the Supreme Court is almost certainly going to constitutionalize same-sex marriage this term. For religious freedom this is bad news. “And the bad news is about to get worse,” he said.

“My read — and this isn’t just conjecture, but based on conversations with leaders on the other side – is that assuming that the marriage case in SCOTUS goes against us, the next step from the other side is what they call something like a ‘Campaign for Full Equality,’ to give full civil rights protections to LGBT people.”

That is, to make it where no discrimination based on LGBT status is permitted — at all. Twenty-eight states now lack these laws, including most of the presidential swing states. The smart LGBT strategists are likely two years into planning this next stage, and that’s exactly what I would do if I were them. These are serious and capable political operatives.

The business community is already on their side.


The strategist said that after years of working in the legal and political arena on this issue, he has concluded that orthodox Christians and others on the religious liberty side need to decide which expressions of religious liberty they most want to protect, and which ones they will not jeopardize the highest priority protections for. It’s one thing to protect a big company from having to pay for abortion-causing drugs, but you’re not going to be able to give them the “religious right” to fire their gay employees. And it’s a right they’re not asking for, even in private.

“We have a whole list of things we want to protect – religious schools, adoption agencies, licensure in the workplace, and so on,” he said. “And we have a list of things that none of us want to protect, like a restaurant owner that sees a gay couple having dinner in his place and throws them out because he hates gays. We are going to have to let that kind of thing go, to let gays and lesbians know that we’re serious about shielding them from things like that.”

Nick said that this is hard for many on the religious right to understand — and he is highly sympathetic to that struggle. Many leaders believe that giving in on any point is conceding the argument to the LGBT side. This, he said, is completely unrealistic from a political point of view. If the public comes to believe that protecting religious liberty requires letting the most obnoxious people have their way, then they won’t support it.

“Our side has to understand that there is a sense in which there are exercises of religious liberty harder to protect than others,” he said. “We need to get that it’s not a sell-out to settle for gradualism, the way the pro-life movement has done. The important thing to understand is that we would be ceding ground that we’ve already lost to gain ground that we stand to win.”

I asked Nick what he thinks is the most important thing for religious conservatives to understand now, but that they’re not grasping. He returned to the practical politics of the present moment.

“One of the strange things about the Supreme Court case that gave rise to RFRA in the first place is that it made religious liberty a matter of politics,” he said. “In 1993, when the federal RFRA was passed, we weren’t yet a post-Christian culture. Now most Christian conservatives get that we’re a post-Christian culture. But most of them don’t understand that religious liberty is a matter of politics.

“If you want religious liberty, you have to enact it legislatively,” he continued. “Even the people who are the best and the brightest on our side by and large don’t have any experience doing politics beyond the public messaging side. That’s not a criticism: people do the jobs they were hired to do. But the technical political skills gap on our side in trying to pass stuff is huge. If we traded political machines with our opponents but kept that issues the same, we’d be rolling to victory.”

Pragmatism is the name of the game, he said.

“In an all-or-nothing contest, we’re going to lose. We are badly outmatched. We don’t have the tactical skills to beat the other side, we don’t have a media that’s committed to being fair. We don’t have the money to remotely match their resources, and increasingly, we don’t have the culture with us, at least not on the views of sexuality that are in dispute.”

I told him that people like me get outdone with the GOP for going wobbly, but that Prof. Kingsfield’s point about how the Republicans may be fair-weather friends, but they’re all we have, has made me reconsider.

“Look, the very fact that we’re going to have same-sex marriage in this country means that some religious liberty is going to be lost,” he said. “Religious liberty is a triage issue to some degree. Kingsfield is right. The kind of Republican who gets elected to statewide office is somebody who can raise a lot of money and pick and choose his or her fights carefully. If even Mike Pence, who was one of the most socially conservative members in Congress, and who had a reputation as a very serious Christian, if even he goes wobbly, then we’re going to have factor in how hard our position is to protect.”

The bottom line is this: if you think every hill is worth dying on, you will make it far less likely that you will be able to live on one anywhere.

UPDATE: “Nick” got in touch this afternoon, and pointed out how smart the other side is strategically. He writes:

Every history of the Civil Rights movement demonstrates that people on the front lines of the conflict were carefully vetted. Rosa Parks was selected among hundreds (or thousands) of equal or greater outrages because she was hard to impeach. If Ms. Parks had been an awkward-looking triple divorcee, the Montgomery Bus Boycott might have never achieved escape velocity. Compare Kim Davis to Jim Obergefell, a man who was chosen (among thousands of potential willing plaintiffs) because his story was as sympathetic as possible.

See what I mean about the gap in political team strength?