The political outlook after Obergefell

By Phil Lawler ( bio - articles - email ) | Jun 29, 2015

Now what? Now that same-sex marriage is a reality throughout the US—or rather, the legal fiction of same-sex marriage is mandated in every state—what’s next?

It should be evident already that the Obergefell decision escalated, rather than concluded, a national debate. Just as the Roe v. Wade decision galvanized the pro-life movement, this indefensible ruling will energize thousands of defenders of marriage. But frankly, it is not clear—not to me, at least—what political strategy the pro-family movement should follow.

Call for a constitutional amendment? Impeach the Supreme Court justices? Those sounded plausible back in 1973, but today we should know better. In the absence of major changes in the political landscape, the prospects for a successful campaign to amend the Constitution or impeach the justices are nil.

Robert George, always a clear thinker on questions of law and morality, says that the Republican Party must find a latter-day Lincoln : someone who will regard the Obergefell decision as a usurpation of power and “refuse to treat and regard it as a binding and settled matter,” just as Lincoln refused to accept the Dred Scott decision. Yes, but George’s logic is not reassuring. Bear in mind that before Lincoln won a final victory over slavery, more than 600,000 soldiers died.

Ryan Anderson, whose stalwart public defense of marriage surely has earned him a right to suggest a future strategy, suggests that marriage defenders should learn from the successes of the pro-life movement, and focus on changing public attitudes rather than laws. Again, yes, but while American public opinion has gradually moved toward the pro-life position, abortion-on-demand remains the law of the land, and thousands of unborn children are still being slaughtered.

I do not mean to criticize these good men, and others, for their suggestions. I have no better alternatives to recommend. I only mean to emphasize that we face a long, uphill political battle, and it is not clear which route we should take as we begin.

How did we come to this pass? Ross Douthat of the New York Times is insightful as always. The gay-rights movement, he observes, has split on the question of marriage, with “conservative” homosexuals lobbying for same-sex marriage while “liberationists” contend that the institution of marriage should be disregarded. The “conservative” homosexuals won their goal with Obergefell, but their victory is largely due to the success that the “liberationists” have enjoyed in cultural battles, as evidenced by the decline in marriage rates, the rise in out-of-wedlock pregnancy, the acceptance of cohabitation. Douthat writes:

But in one of the ironies in which the arc of history specializes, while the conservative case for same-sex marriage triumphed in politics, the liberationist case against marriage’s centrality to human flourishing was winning in the wider culture.

If we wish to right the wrong that the Supreme Court has done, then, we must do more than change the law. We must change the culture. That’s no easy task, and again it is not obvious how we should begin.

For our political opponents, whose goal is to root out the Christian conception of marriage, there is no such uncertainty. Their next step, obviously, will be a campaign to whittle away at freedom of religious expression. Even before the Supreme Court decision was released, the ACLU announced that it would oppose religious-freedom legislation. Mere hours after the decision, a Time magazine essayist called for ending the tax exemption of religious institutions.

One remedy that many thoughtful Christians have proposed, to avoid a direct confrontation with state power, is for the Church to withdraw from the involvement in civil marriage. Let priests witness a sacramental marriage, these folks suggest, and let the town clerks sign the legal certificate—if indeed the couple wants to enter into what the state now recognizes as marriage. Do you notice here the influence of what Douthat calls “liberationist” thinking, in the willingness to disregard the legal status of marriage?

James Heaney makes a strong case against civil marriage, quoting Pope Leo XIII to support his argument that “state intrusion upon marriage is not to protect it, but to undermine it.” Sacramental marriage stands by itself, he reasons; the only proper job of the state is to enforce the marital contract. With the advent of no-fault divorce, the state stopped doing that. So Heaney concludes:

The State had one job in all this, and one job only, which it performed with its usual muddling competence: the State enforced the terms of the contract. When one or both spouses violated the contract, it stepped in to adjudicate, like any other contract. That’s all. The State did not define the contract, its powers to regulate or authorize the contract were severely limited and incidental to its entanglement with the established Church, and it sure as hell didn’t administer the contract.

It’s an interesting and persuasive argument. But in the course of a convincing rebuttal to a related proposal, canon lawyer Ed Peters argues that there is a category mistake involved. The Church has no business doing civil marriages, Peters agrees; but it’s the state, not the Church, that decides whether Christian marriages will receive legal recognition. Peters adds another point worth considering: if the state recognizes some unions that are not true marriages, how will it help matters to eliminate from state recognition all the unions that are true marriages?

Then Stella Morabito lowers the boom on the argument that Christians should no longer care about state recognition of their marriages:

Because once the state no longer has to recognize your marriage and family, the state no longer has to respect the existence of your marriage and family.

If the state does not recognize your marriage or your family, it may not recognize your rights to raise and educate your own children. Anyone who knows which way the wind is blowing should feel the chilling force of that argument. If the state already thinks that you have improper beliefs about marriage, and already believes that your children should be sheltered from such retrograde influences, the state may decide to take away your children. And if your union with your spouse is, from the state’s perspective, just like any other partnership of convenience, why shouldn’t the state assume the parental role?

Does that sound far-fetched? No more so, surely, than it would have sounded ten years ago to predict that homosexual marriage would be recognized by law throughout the US.