Where does the country go from here?  My take: The arrival of gay marriage is remarkable in the United States for a number of reasons. It has come faster than anyone, even many of its proponents, expected thanks to a complete and total acceptance of the moral imperative of this cause by our cultural and political elite; it has come without a full working over of the consequences of same sex unions in the context of how they impact freedom of speech, religion, and association; and it has come largely, and disappointingly, through unrepresentative and meandering rulings of the courts. This last one reached its apex with Anthony Kennedy’s bizarre “due process + equal protection = I get what I want” ruling from the Supreme Court.

On an issue that is this divisive, and takes on this much importance, it is essential that a Supreme Court decision offer a serious legal reasoning of why our constitutional understanding of liberty includes the right to marry who you wish, and why there is no compelling interest for government to prevent such unions. It is particularly important that this reasoning be strong and well-defended given that wide pluralities of Americans, even as they support gay marriage, thought the court should not declare it as a constitutional right.

Unfortunately, Kennedy wrote no such thing, instead offering little more than a mushy love letter to the idea of gay marriage. As Peter Lawler notes, his decision includes such anti-libertarian lines as “Marriage responds to the universal fear that a lonely person might call out only to find no one there”.  The accurate word for this is “piffle”, an “I’ve fallen and I can’t get up” justification for same sex unions. Many legal minds, conservative and libertarian alike, are expressing the view today of “good result, terrible reasoning”, and they are right. It would have been much better if Justice Kennedy had just quoted from the entirety of Ilya Shapiro’s Obergefell v. Hodges amicus brief, and written at the end: “This!”

The due process argument for gay marriage has always struck me as very weak, much weaker than the equal protection argument, a position Ilya Somin shares, and the weakness of the former is highlighted repeatedly in Justice Thomas’s critique.  But of course those who have strongly advocated for the institution of gay marriage by any means necessary care little how the court arrived at the decision, so long as it was the *right* decision.

The fallout is coming swiftly. At Time, where Henry Luce wrote of the centrality of religion in America’s public life, already Mark Oppenheimer is calling for ending the tax exemption for churches.  “Rather than try to rescue tax-exempt status for organizations that dissent from settled public policy on matters of race or sexuality, we need to take a more radical step. It’s time to abolish, or greatly diminish, their tax-exempt statuses.”  Ending these tax exemptions – particularly for small churches – means ending the church itself. Denny Burk:  “Never mind that the average base salary of a full-time senior pastor ranges from 33,000 dollars to 70,000 dollars. Never mind that ministers do pay income taxes. Never mind that it is absurd to suggest not paying taxes is a subsidy. Never mind that exemptions do function to keep church and state out of one another’s business. That doesn’t fit the fictional narrative activists wish to advance—that these churches don’t deserve to have their “subsidy” continued in light of their intolerable views on sexuality. No, the real intent of removing tax-exempt status is to cripple the institutions that continue their dissent from the sexual revolution.” Personally, I think the assault on schools will come first, and so does the New York Times.

And this assault will have plenty of cheerleaders. Mollie Hemingway:  “Perhaps when the media complete their marches in pride parades and finish their breathless coverage of a rainbow-spackled White House and are done changing their logos to rainbow flags, they can take a few minutes to glance at these dissents, each of which express grave concerns about religious freedom and the rule of law. And time’s a-wastin’. In the few hours since Obergefell was passed, media outlets have published op-eds in support of polygamy, against religious freedom laws, and against tax exemptions for churches. Who could have anticipated that?”

The problem with gay marriage is not gay marriage. People of the same sex getting married will not destroy America. But it will impact America in serious ways that have ramifications for people well outside the scope of these unions – and not just the baker, photographer, florist or gazebo owner who have been highlighted to this point as the victims of overly litigious bureaucrats seeking bigots to destroy. The consequences of this decision will most rapidly be felt by religious schools and non-profits, as those who once fought for civil liberties for all will turn on those whose liberties they find to be inconvenient. Already the ACLU has announced they will no longer defend federal religious freedom laws they once fought for vociferously, because they now believe the freedom to practice one’s religion amounts to nothing more than a freedom to discriminate.  Civil liberty is now a right wing issue, and will be for the foreseeable future.

In such context, there is a very pressing need for all who believe in civil and religious liberty, despite their disagreements about marriage, to unite against the civil liberty hypocrites and the cultural and corporate elite in defense of our First Amendment freedoms. Gay marriage does not require the use and abuse of government power to trample our right to speak, associate, and practice our religion, but the aims of the secular left and the victim-hunting social justice warriors do require such overreach. These rights are essential. They are what makes us America. And they deserve defending by all who believe in the freedom to think, associate, speak, and believe.

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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