It’s hard to write coherently about a Supreme Court decision while fighting back tears. I’m old enough to remember exactly where I was when Bowers v. Hardwick came down in 1986 and proclaimed that states could arrest gay people in our homes for the crime of loving each other (and that our claims to the contrary were “at best facetious”). From there to marriage in not even 30 years!
Will there be a backlash? A “frontlash”? What are the political and social implications? My own circuits are too overwhelmed to sort through it all, but here are a few preliminary thoughts.
The conservative marriage narrative has won. The Supreme Court could have found for same-sex marriage on left-liberal, “anything goes” grounds that if people love each other, they should be entitled to marry. Or it could have gone with a libertarian argument, finding that the state should not be prejudging interpersonal relationships at all. Both schools of thought have their defenders.
Instead, writing for the majority, Justice Anthony Kennedy grounded his decision in the social value of marriage. The gay petitioners seek the “profound commitment” of marriage, and same-sex marriage is important precisely because “marriage is a keystone of our social order” that “safeguards children and families.”
Of course, Kennedy nods also to the importance of “individual autonomy” (choosing who you marry) and the importance of intimacy. But his decision, far from being a flight from family values, embraces them. “Marriage remains a building block of our national community,” the majority’s decision says. That’s exactly what pro-family conservatives have been saying for years—and it’s a message that gay Americans have come to embrace.
There’s a lot here that conservatives can build on. Friday’s decision drives home the powerful cultural message that marriage is an opportunity everyone should have. At a time when, increasingly, marriage is slipping out of reach of those without college degrees, this is an important and potentially unifying message. (For more on that, see this statement on “Marriage Opportunity,” signed by more than 100 people from across the political spectrum.)
Wholesale backlash seems unlikely. I called a couple of social conservatives whose judgment I respect, and who are well plugged-in, and asked how this decision would go down. Both said that they did not foresee a widespread campaign of pitched, anti-abortion-style resistance on the right. Cultural conservatives, they said, understand that the court’s ruling is the embodiment of a much larger change in public opinion—not, as Justice Antonin Scalia said, in as irresponsible a piece of judicial rhetoric as I’ve ever seen, a “judicial putsch.” (This from a justice who only a day earlier had smacked his lips at the prospect of demolishing Obamacare over a drafting error.)
Religious liberty advocates need to show restraint. Kennedy, in his decision, did his best to reassure religious folks who fear they’ll be forced, against the dictates of faith or conscience, to endorse, participate in, or recognize same-sex marriages. But some confrontational lines are already being drawn. The more conservative batch of Republican presidential candidates were quick to declare battle stations. Louisiana Gov. Bobby Jindal issued what sounded like a declaration of war. “This decision will pave the way for an all out assault against the religious freedom rights of Christians who disagree with this decision.”
We can hope—pray?—that his belligerent tone does not prevail. It’s clear, though, that many less inflammatory conservatives who oppose gay marriage are worried about whether they’ll be able to teach their own traditions to their kids or continue to run faith-based organizations according to, say, Catholic principles.
I believe that there are lots of good policy options that can reasonably balance religious conscience with gay rights. Events in Utah recently proved the point. But the cause of religious liberty won’t be served by stirring up fear. Jindal-style, polarizing rhetoric will be unhelpful to finding real accommodations, and they’ll stain the cause of religious liberty—a good and noble cause—with the tar of intolerance.
Gay-rights advocates, like me, shouldn’t overreach. Our antagonists have already built a trap by casting us as bullies determined to forcibly squelch all opposition to gay marriage (or gay anything). We gay-rights advocates need to avoid walking into that trap by seeming to want to bulldoze all opposition. Marriage equality swept all before it in the Supreme Court. But 40 percent of Americans, including majorities in many states, remain unconvinced, and that’s a lot of people.
A few weeks ago, a Christian journalist I know confided that he’s not on board with gay marriage—not hard against it, but not for it, either—but that he won’t discuss the subject at all with his kids. Why not? He’s afraid they’ll say something that will get them into trouble at school. That kind of climate of fear is bad for everyone.
This is not just a matter of political expedience. Gay people know too much already about being unable to live our lives according to our identities and beliefs; we’re the last ones who should be pushing anyone else into a closet.