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Published: 19 December 2012 10:04 PM
However the Supreme Court rules on gay marriage this term, we social and religious conservatives should not fool ourselves: We have lost this fight at the cultural level, and there is no reason to believe that we will prevail in the legal arena. Sorry, folks, but there it is. Wishing it were otherwise does not make it so.
Even if the Supreme Court does not now declare same-sex marriage a constitutional right, the popular momentum favoring marriage rights for gay couples is undeniable. If the high court refuses to constitutionalize gay marriage, it’s only a matter of time before most states achieve it through legislative means or popular referendum.
Young people, even those who favor the GOP, generally don’t mind gay marriage. And why should they? Same-sex marriage makes logical sense given the premises about sex, marriage and individual autonomy that most Americans today accept as normative. The Sexual Revolution is over. Our side lost.
The best conservatives can hope for is that the high court will carve out strong and significant protections for religious liberty. This is a much bigger deal than most Americans realize.
In debating same-sex marriage over the past few years, I have been struck by how few people understand its religious liberty implications. Even many conservatives seem to be like the talk-radio host Glenn Beck: under the impression that the issue is whether or not the government will be able to compel churches, synagogues and mosques to marry gay couples, or quit preaching against homosexuality.
Thanks to the First Amendment, it’s not going to happen. But beyond those narrow bounds, it’s all up in the air.
Religion is not only what you say and believe; it’s also what you do. The activities of religious organizations — including charities and schools — that do not accept same-sex marriage will almost certainly be circumscribed in significant ways. From running afoul of public accommodations laws to the potential loss of tax-exempt status — a devastating prospect for many churches and religious charities, which operate on tiny margins — traditionalists and their institutions could find themselves hard-pressed by laws treating anti-gay discrimination as legally equivalent to racial discrimination.
In the 1983 Bob Jones University decision, the Supreme Court ruled that the Internal Revenue Service could revoke the tax-exempt status of a private religious school if the government determined that the institution’s racially discriminatory policies interfered with a compelling public interest — in this case, combating racism.
Would the Bob Jones logic be used against religious institutions that discriminated against same-sex couples? It is unclear how this will play out in the courts, but given that younger Americans both accept gay marriage in large numbers and are becoming more secular than their parents and grandparents, it appears only a matter of time before the social consensus, which often leads the legal consensus, presses religious traditionalists against the wall.
It’s a safe bet that most of the orthodox faithful would be willing to withstand the opprobrium of society as long as they can continue to practice their religion as they wish. That’s why conservatives must hope that the high court will find a way to create a legal catacomb in which the orthodox can take refuge.
The media don’t want to face this issue either. For one thing, they rarely get religion and may not understand the concern. For another, they have taken sides in this struggle and recognize that it does not help the gay rights cause to have people thinking about the full legal implications of granting homosexuality constitutionally protected status.
Cardinal Francis George of Chicago, reflecting on the rising tide of secularist aggression, recently said that while he expects to die in his bed, “my successor will die in prison and his successor will die a martyr in the public square.” There is more going on here than a simple question of equal rights for gay Americans. When people deny that religious liberty is not a meaningful issue in the gay marriage debate, do not believe them.
Rod Dreher is a senior editor at The American Conservative and may be contacted at email@example.com.