Gay marriage won. Now comes the hard part: Protecting religious freedom.
Friday's Supreme Court decision declaring gay marriage a constitutional right doesn't seem to have inspired much ambivalence among politically informed Americans. Either it's a glorious triumph for equality and an irrefutable demonstration that the arc of history does indeed bend toward justice — or else it's a galling example of judicial overreach, the end of public Christianity in America, and the start of an era that will be marked by unprecedented persecution of traditionalist Christians.
Why can't it be both?
Indeed, it's possible to be painfully, wrenchingly divided about the Obergefell decision and its likely cultural and political consequences.
On the one hand, I'm thrilled for my many gay and lesbian friends who can now wed and enjoy the benefits and social acceptance of marriage in all 50 states. Unlike many of my more conservative friends, I think that the traditionalist side of the argument was lost years ago, that rapidly shifting public opinion on the issue meant that we were bound to get same-sex marriage on a national basis before long through the democratic process, and therefore that Justice Anthony Kennedy's sweeping majority opinion merely pushed us a bit in the direction we were already heading.
On the other hand, my instincts favor judicial restraint, and so part of me found Chief Justice John Roberts' eloquent, cautious, and measured dissent more persuasive than Kennedy's often moving but legally gaseous appeals to high moral ideals that he and the four Democratic-appointed justices consider to be self-evident, but that four of their colleagues, and millions of their fellow citizens, obviously do not. (I should also add that I found both Roberts' dissent and Kennedy's majority opinion infinitely more compelling than Justice Antonin Scalia's own rabid dissent, which was little more than a primal scream in print.)
On the third hand, I'm somewhat troubled by how quickly my more conservative friends moved to denounce the "judicial activism" of the decision, not realizing or particularly caring that precisely the same criticism could be lodged against Brown v. Board of Education (1954), which also used extraconstitutional moralizing (along with a truckload of questionably relevant social science) to overturn segregation in the South. If Brown was decided rightly, then there is clearly a precedent for occasional sweeping Supreme Court decisions that appeal to the Fourteenth Amendment to rectify long-standing injustices in American society.
On the fourth hand, I know where a good part of the resistance of my conservative friends is coming from. They're genuinely frightened that they're about to run afoul of anti-discrimination laws just by virtue of continuing to uphold age-old ideals of marriage. It's this fear that's inspired some of these friends to make what can sound at first like bizarre and self-pitying parallels to the persecution of Christians in pagan Rome and under communism. ("Back to the catacombs," declares one Facebook friend. Others talk of Christians being forced to "live as exiles" in their own country. Still others merely post ominous quotes from Solzhenitsyn and Havel on social media.)
The rhetoric might be overwrought, but these conservatives have a point. More than a point. They're right to be worried. Very worried. And all fair-minded, genuinely liberal Americans should be worried, too, about what Obergefell might portend for the American future.
Yes, I'm talking about religious freedom.
It's perfectly understandable for gay-rights activists and their liberal allies to turn their attention toward fighting workplace and other forms of discrimination. I wish them well in their efforts. But a parallel movement must accompany the continued struggle for gay rights. Every proposed expansion of state and federal anti-discrimination law to cover homosexuality must include explicit carve-outs regarding same-sex marriage for churches and religiously affiliated institutions, as well as for small businesses owned by conservative Christians.
Opponents of such carve-outs will likely respond to this demand with two different (and contradictory) claims.
First they will say that religious traditionalists should stop complaining because they're already covered by the First Amendment's protections for speech and religious free exercise.
But the scope of these protections is precisely what's going to be up for grabs over the coming weeks, months, and years. It's true: There's very little chance that the government will force a church to marry a gay or lesbian couple, or forbid a priest or pastor from preaching from the pulpit against same-sex marriage. (Though when I read a venomous screed like this, I feel certain that it won't be long before someone files a suit to try to beat back even these most fundamental freedoms.)
But what about when that priest or pastor, or a conservative member of the parish or congregation, leaves the doors of the church? Throughout American history, the First Amendment has been understood to permit these Christians to act in the world as moral representatives of their faith communities — to exercise their religion by forming and joining groups in civil society that are affiliated with their churches or advance their moral vision of the world. These might be private schools, colleges, and universities, or hospitals, soup kitchens, and other charities. They might be think tanks or lobbying firms. They might be businesses whose owners want to express their Christian faith (as they understand it) in their dealings with customers.
Most Americans will say, and the law before long will surely insist, that simply refusing to serve (or hire or rent) to a gay man or lesbian simply because of their orientation is unacceptable. That's the way it should be, the way it must be, in a liberal society.
But what about a conservative Christian college that seeks to conform to historic Christian teachings about sex and marriage? Should it be forced to allow same-sex married couples to live in married housing? Should the college lose federal funds for refusing? Lose its accreditation? Its tax-exempt status? Any one of these consequences could drive the college out of business, or force it to abandon the religious beliefs that define it.
And what about a small business owned and run by conservative Christians? Should it be forced to cater to a same-sex wedding, even when there are plenty of other local businesses that will happily provide the service?
I submit that if the government uses its coercive power to force conservative Christian colleges and other organizations — and conservative Christian business owners — to choose between survival and denying their religious convictions, it would mark a sea change in the country's historic attitude toward faith, signaling a shift away from the characteristically American ideal of religious pluralism and toward the far more draconian form of secularism (laïcité) that's dominated France since the French Revolution.
Think of a Muslim woman forced to remove her hijab in all public places — or an Orthodox Jew compelled to open his shop on the Sabbath. Instead of the historic American norm of allowing broad leeway for religious free exercise, conservative religious believers would, in effect, be forced to withdraw into their homes and churches, coerced into keeping their faith cordoned off in those purely private spaces. To call this un-American is the least that one could say about it.
And that brings us to the second thing that opponents of carve-outs for conservative Christians will say about such concerns — which is that these religious traditionalists should stop complaining because, as the moral equivalent of the unreconstructed racists who fought the dismantling of segregation in the Jim Crow South, they deserve every bit of harassment they will now have to endure.
This is the spirit of outraged denunciation that greeted passage of Indiana's Religious Freedom Restoration Act last spring — even though, as legal scholar Douglas Laycock pointed out at the time, such laws have thus far proven to be remarkably impotent at protecting conservative Christians from having to comply with anti-discrimination statutes. Now that gay marriage is an established right in all 50 states, the temptation will be all the greater for those who fought the good fight to vanquish their opponents from the field of cultural battle once and for all.
Indeed, it has already begun. It look less than 72 hours from the announcement of the Obergefell decision for the ACLU to declare that it will no longer defend clients who use the federal RFRA to claim that their First Amendment rights to religious free exercise have been violated — and for New York Times religion reporter Mark Oppenheimer to make the case in Time magazine for ending tax exemptions for religious institutions (including churches), a reform that would drive many of them out of business entirely.
Events must not continue to unfold like this. Conservative Christians are not the moral equivalent of a lynch mob. They are our fellow citizens, and the United States is their country, too. Many of them are good and decent people trying their best to uphold a vision of marriage they can trace back 2,000 years to the founder of their faith. Yes, this vision is incompatible with same-sex marriage. But free societies should not require as the price of admission to public life the conformity to a comprehensive moral outlook or ideology — and neither should they require the complete public suppression of theological commitments.
Let's show our conservative Christian neighbors that the justly deserved triumph of gay marriage doesn't require their unjustly suffered political persecution.