Political and religious leaders opposed to marriage equality have been ramping up the intensity of their rhetoric in the weeks leading up to the Supreme Court's imminent decision on the constitutionality of state laws banning same-sex couples from getting legally married. Some have warned of revolution and civil war if the Supreme Court recognizes that there is no gay exception to the Constitution's guarantee of fair and equal treatment under the law.
One recent salvo in this rhetorical campaign was a full page ad in the June 10 Washington Post in the form of an open letter to the Supreme Court. The headline read, “We ask you not to force us to choose between the state and the Laws of God.”
“We are Christians who love America and respect the rule of law,” the ad said, “However, we will not honor any decision by the Supreme Court which will force us to violate a clear biblical understanding of marriage as solely the union of one man and one woman.”
Similar statements can be found in the “Pledge in Solidarity to Defend Marriage” put together by the same people behind the Post ad. And it's not much different from language in the Manhattan Declaration, a 2009 manifesto written by former National Organization for Marriage chairman Robert George (right) and signed by an array of conservative religious leaders. The Declaration declares that its signers will not “bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.”
The Post ad suggested that a pro-equality ruling would “unleash religious persecution and discrimination against people of faith,” a statement that ignores the many people of faith who do support full equality for LGBT people. The ad was signed by a bunch of far-right anti-gay activists. Here's just a sampling:
- Jim Garlow, who recently pledged that the anti-gay right will become an “underground resistance movement”
- Samuel Rodriguez, right-wing Latino evangelical leader and global culture warrior who has called the marriage equality movement a “war on the biblical doctrine of marriage”
- James Dobson, founder of Focus on the Family, who said this year that gay marriage will be “the death knell of religious liberty in America” and could lead to civil war
- Elaine Donnelly, who led the fight to keep gays from being able to serve openly in the military and has sought to ban weddings for same-sex couples from military installations
- John Hagee, an apocalyptic preacher who calls gay-affirming pastors “counterfeit Christians” and warns that church-state separation “will prove suicidal for America”
- Harry Jackson, an anti-gay activist who led the failed fight against marriage equality in DC and has warned that “radical gay activists” are bringing America back to “the times of Hitler”
- Alan Keyes, a far-right political figure who wrote recently that a marriage equality ruling from the Supreme Court would be “a high crime and misdemeanor” and “just cause for war”
- Alveda King, a niece of Martin Luther King who declared gay marriage “impossible” and dismissed Coretta Scott King's support for marriage equality by saying “I've got his DNA. She doesn't…”
- Franklin Graham, son of Billy Graham, who recently made a big show of taking his money out of a pro-equality bank, saying God's judgment is “coming soon” thanks to support for LGBT equality
- Mat Staver, head of Liberty Counsel, who calls marriage equality a “satanic attack” that “ghettoizes Christianity” in the same way Nazi Germany dehumanized Jews
- Tim Wildmon who heads the anti-gay American Family Association, which placed its own ad in the Post in March, saying a pro-equality Court ruling would be a “a fist in the face of God Almighty.”
- Robert Jeffress, Dallas pastor and Rick Perry ally, who calls gay marriage “the greatest sign of the End Times” and warns gays will “make us all bow down and bless what God has called a perversion”
- Keith Fournier, a right-wing Catholic activist, who recently warned that gay marriage is ushering in anti-Christian discrimination and will lead to disaster
Let's put aside all the preening about Religious Right leaders' willingness to endure prison and martyrdom and consider what they're really after.
First, we can dispense with the notion that they're just looking for a “live and let live” world in which “Gays and lesbians have a right to live as they choose; they don't have the right to redefine marriage for all of us.” In fact, religious conservatives have opposed every advance in cultural acceptance and legal recognition of the equal rights and dignity of LGBT people, including efforts to protect us in laws targeting violent hate crimes, allow us to serve openly in the military, and prevent us from being discriminated against in the workplace.
Robert George, co-author of the Manhattan Declaration and a founder of the National Organization for Marriage, wrote the legal brief filed by Focus on the Family and the Family Research Council in the Lawrence v Texas case, defending state laws that made gay people de facto criminals. NOM's current chairman John Eastman said just this month that he hopes Uganda quickly puts its notorious anti-gay law back into force, a law that included penalties of life in prison for repeat offenders. Other right-wing religious leaders have traveled the globe, from South America to the Caribbean, from Uganda to Russia, Eastern Europe to Central Asia, to support laws that make gay people into criminals for living as they choose, sometimes even for advocating on behalf of LGBT people.
Back here in the U.S., conservative evangelical leaders and their allies at the U.S. Conference of Catholic Bishops falsely portray LGBT equality and religious liberty as fundamentally incompatible, a zero-sum game. That's their justification for opposing civil unions as well as marriage equality – even for opposing laws to protect people from being fired just for being gay.
The reality is that religious liberty has continued to flourish, and our religious landscape has grown more diverse, in the decades that public attitudes toward gay people have shifted dramatically toward equality. There has been no effort to require clergy to marry mixed faith couples if their faith prohibits it, and nobody wants to force any church or priest to marry or give their religious blessing to same-sex couples.
Next, let's consider whether all this line-in-the-sand drawing is really about the supposed need for clergy, organizations, and business owners to enforce their religious beliefs about marriage in the public arena. The Catholic Church does not give its religious blessing to marriages involving people who have previously been married and divorced, unless the previous marriage is religiously “annulled.” But Catholic organizations are not loudly advocating for the right of a Catholic business owner to treat opposite-sex couples differently based on whether or not their marriages have the church's blessing.
Similarly, many evangelical leaders say marriage is meant to be between one man and one woman “for life.” Yet in spite of the biblical passage in which Jesus says that a man who divorces his wife, for any reason other than sexual immorality, and marries another woman is committing adultery, there is no clamor from Religious Right leaders celebrating discrimination against people in second and third marriages.
It is clear that a different standard is being applied to same-sex couples. But anti-gay prejudice — animus is the legal term – is not an acceptable basis for discrimination, even if it is grounded in religious belief.
Now, there's a reason Religious Right leaders are trying to make the conversation around marriage be about the grandmotherly florist who was fined when she declined to provide flowers for a gay couple's wedding, or the conversation about contraception about the Little Sisters of the Poor, who say they don't want to facilitate abortion. It's an effort associate the Right's agenda with a “live and let live” ideal that is appealing to many Americans, regardless of religion or politics.
But here's the problem: Once you establish the principle – as Supreme Court conservatives did in their Hobby Lobby decision last year – that business owners as well as individuals and organizations should be able to ignore laws that somehow offend their religious beliefs, you have to figure out how far people will be allowed to run with it. It is not yet clear where the justices will draw the line.
That kind of line-drawing is often challenging when dealing with questions about how the government can accommodate religion without government impermissibly favoring it. Religious denominations and houses of worship have the greatest level of protection against government interference; courts and legislatures wrestle with the status of religiously affiliated nonprofits. Until Hobby Lobby, the Court had never ruled that a for-profit corporation could “exercise religion” in a way that is protected by the Religious Freedom Restoration Act, but now that door has been opened, it is not clear what kinds of anti-LGBT discrimination it could permit.
Anti-equality religious and political leaders have made it clear that they will continue to oppose marriage equality even in the face of a Supreme Court ruling striking down state marriage bans. Some are calling for massive resistance and urging state leaders to refuse to comply with a pro-equality Supreme Court ruling. Professors Douglas NeJaime and Reva B. Siegel have argued in the Yale Law Journal that in such a situation, in which there is a well-organized movement dedicated to pushing the religious exemption further and further, an accommodation may actually be more likely to extend the culture war conflict than resolve it.
It is worth addressing generally fair-minded people who don't understand why the gay rights movement won't just be happy with a marriage win and let a few people with religious objections “opt out.” Some people may think it's no big deal for gay couples to find another florist or baker. For one thing, that approach discounts the humiliation of being turned away from a business, a violation of human dignity that was a motivating force behind laws banning racial discrimination in public accommodation. And it may not be such a small obstacle in smaller, conservative, religiously homogenous communities, where discrimination may flourish if it is invited by law and encouraged by local religious leaders.
Consider the anti-abortion movement as a cautionary tale.
Shortly after the Supreme Court's ruling in Roe v Wade, laws were passed to allow doctors who had religious objections to performing abortions to refuse to do so without experiencing negative professional consequences. There has been little opposition to such laws. But over the past few decades, at the urging of anti-abortion activists, the scope of that kind of religious exemption has been expanded wildly to include people ever-further removed from the actual abortion procedure, and expanded to include even marginal participation in the provision of contraception. In emergency situations these accommodation could come at high cost, including the life of a patient.
Exemptions have been extended to or claimed by nurses who don't want to provide care to women after an abortion, pharmacists who don't want to dispense a morning-after pill prescribed by a woman's doctor, even a bus driver who refused to take a woman to a Planned Parenthood facility because he said he suspected she was going for an abortion.
NeJaime and Siegel describe these as “complicity-based conscience claims” – claims that are about refusing to do anything that might make one complicit in any way with another person's behavior that one deems sinful. They note that the concept of complicity has been extended to allow health care providers not to even inform patients that some potential care or information has been withheld from them based on the religious beliefs of an individual or the policies of an institution.
The resistance to complying with the requirement under the Affordable Care Act that insurance plans cover contraception takes the notion of complicity to almost surreal lengths. Just days after the Hobby Lobby decision, the Court's conservatives sided provisionally with religious conservatives who are arguing that it is a burden on their religious freedom even to inform the government that they are refusing to provide contraceptive coverage, because that would trigger the process by which the coverage would be provided by others. Cases revolving around the simple act of informing the government of an objection are working their way back toward the Supreme Court.
Similarly, some advocates for broad religious exemptions argue that organizations taking taxpayer dollars to provide social services to victims of human trafficking or women who have been victims of rape as a weapon of war should be able to ignore government rules about providing those women with access to the full range of health care they may need. Some groups are saying it would violate their religious freedom even to notify the government when they refuse to provide information or care – such as emergency contraception for teens that have been sexually abused by their traffickers. But keep the public dollars flowing our way!
Given what we know about the intensity of the anti-gay movement's opposition to marriage equality, it is not hard to imagine how far that movement could run with the principle that religious beliefs about “traditional” marriage are a legitimate basis for discriminating against same-sex couples. They themselves have claimed as a model the (dismayingly successful) 40-year campaign since Roe v Wade to restrict women's access to reproductive health care. In the words of the Heritage Foundation's Ryan Anderson, “Everything the pro-life movement did needs to happen again, but on this new frontier of marriage.”
Where will a similarly aggressive campaign against marriage equality lead? There is a new law in North Carolina allowing magistrates to refuse to marry same-sex couples. A new law in Michigan allows adoption agencies functioning with government money to refuse to place children with same-sex couples.
Will corporations be allowed to refuse to hire someone married to a same-sex spouse based on the beliefs of the people who run the company? Will Catholic hospitals, which play an increasingly significant role in our health care system, be able to refuse to recognize same-sex spouses in medical emergencies?
The progress that LGBT people have made toward full equality has been remarkable. In my lifetime, the federal government had a formal policy to fire “sex perverts” and prevent them from getting federal jobs. In my lifetime, state laws criminalizing same-sex relationships were used to fire people from government jobs and even take parents' children away from them. Even today, in a majority of the states, gay and lesbian people have no protection against being fired for who they are – or who they marry, even if the Supreme Court makes it illegal to keep those weddings from taking place. In all too many places, a company could fire an employee who marries a same-sex partner, the way Catholic schools across the country have been doing.
The good news is that Americans are increasingly opposed to anti-gay discrimination. Most of the laws that were proposed this year to legalize anti-gay discrimination on the basis of religious belief failed – often thanks to the pro-equality voices of business and religious leaders as well as the hard work of LGBT people and their friends and families and our advocacy organizations.
Most informed observers think the Supreme Court will rule in favor of marriage equality. If that's what happens, it will be a historic victory and cause for celebration. But as the signers of the recent Washington Post ad have made clear, it will not be the end of the struggle.
Peter Montgomery is a Senior Fellow at People For the American Way. This article also appeared on Huffington Post
