This summer's Windsor decision from the Supreme Court overturned the Defense of Marriage Act, but it did not declare a constitutional right to gay marriage. Yet even Maggie Gallagher, the country's most tireless and high-profile opponent of same-sex marriage, now believes such an outcome is a foregone conclusion.
"It's clear that the courts are going to shut down the marriage debate and impose gay marriage uniformly," she says. "There is not yet a unified sense of where we go from here, except for this: there is an accelerating awareness that the consequence of marriage equality is going to be extremely negative for traditionalist Christians."
Interviews with legal scholars, activists, and other social and religious conservatives involved in the fight against same-sex marriage confirm this grim outlook. In the courts, and in the court of public opinion, the momentum towards same-sex marriage has been clear. A consensus is emerging on the right that the most important goal at this stage is not to stop gay marriage entirely but to secure as much liberty as possible for dissenting religious and social conservatives while there is still time.
To do so requires waking conservatives up to what may happen to them and their religious institutions if current trends continue — and Catholic bishops, say, come to be regarded as latter-day Bull Connors.
Will religious conservatives be seen as no better than racist bullies in the emerging settlement? Despite what you haven't heard — the news media's silence on religious liberty threats from same-sex marriage is deafening — this is not slippery-slope alarmism. The threat is real.
Robin Fretwell Wilson is a University of Illinois law professor and religious liberty expert. Though she takes no position on same-sex marriage, Wilson argues that religious freedom is enormously important in this fight.
"Everybody knows that [church] sanctuaries are going to be out of the reach of same-sex marriage laws," she says. "The whole fight is over religiously affiliated organizations and individuals who are in government employment or out in commerce."
Religious schools and charities could suffer penalties such as the loss of government funding or state credentials necessary to operate. They could also have their tax-exempt status taken from them.
The latter actually happened to a group of New Jersey Methodists in the 2007 Ocean Grove case. That state court decision held that the New Jersey government was permitted to withdraw a special tax exemption, tied to public access, from a church-owned pavilion that declined to host two gay commitment ceremonies. What happened next, says Wilson, set an ominous precedent.
"The local taxing authority then removed the local exemption for ad valorem taxes for the pavilion, and then billed them for back taxes," she says. "That tax benefit is one of the most substantial benefits religious groups receive from the government. Although the group had elected a local tax status tied to public access, if state and local governments use this as a guide for how to deal with religious organizations that don't accept same-sex marriage, that could be a big deal."
Individual religious believers also stand to lose their jobs or have their businesses take to court. Christian florists, photographers, and bakers have already been sued or punished under nondiscrimination law for refusing to provide wedding or commitment-ceremony services to gay couples. State courts in New Mexico have upheld a $6,000 fine levied against a wedding photographer who declined to shoot a lesbian commitment ceremony. Civil litigation underway in Colorado pits a gay couple against two Christian pastry chefs who refused to bake a cake to celebrate a wedding the pair held in Massachusetts.
In these cases, state nondiscrimination laws did not carve out religious liberty exceptions. Though many observers focus only on Supreme Court rulings, Wilson says instances like these highlight the importance of marriage battles in state legislatures.
"When same-sex marriage gets dropped out of the sky, it doesn't drop onto a blank slate, but into the existing substrate of state anti-discrimination laws," she explains.
This belies the claim by marriage-equality activists that same-sex marriage is merely a simple expansion of marriage rights and that no one who opposes it will suffer undue hardship.
But if gay activists understate the threat same-sex marriage poses to religious freedom, chicken-little traditionalists sometimes overstate their vulnerability.
Wilson points out that the courts have expressed support for what they deem reasonable accommodation of religious belief, even when that belief clashes with civil rights claims.
"The idea that this is all of a sudden some newfangled thing where we're having to think through for the very first time how religious organizations are having to deal with civil rights norms is just not true," says Wilson.
Wilson and others engaged in this debate have suggested detailed legislative remedies attempting to balance gay rights and religious liberty for the common good. She concedes, however, that the 1960s civil rights template is of limited use in thinking through religious liberty vis-à-vis homosexual rights. Those laws were written in a time in which no one could have imagined them being used to question the gender structure of marriage.
Until now, the debate has focused on the question, "What is marriage?" But henceforth it is coalescing around the question, "What is homosexuality?" Or, to be more specific: is homosexuality the same thing as race? The future of religious freedom depends on how the courts, and the country, answer that question.
To gay marriage supporters, homosexuality is, like race, a morally neutral condition. Opponents disagree, believing that because homosexuality, like heterosexuality, has to do with behavior, it cannot be separated from moral reflection. As Gallagher put it in a 2010 paper in Northwestern University's law journal, "Skin color does not give rise to a morality."
The problem for traditionalists is that the sexual revolution taught Americans to think of sexual desire as fundamental to one's identity. If this is true, then aside from extreme exceptions (e.g., pedophilia), stigmatizing desire, like stigmatizing race, denies a person's full humanity. To do so would be an act of blind animosity.
Though she appealed in that same law journal paper to the magnanimity of gay rights supporters, Gallagher acknowledged that their confidence that homosexuality is no different from race would make compromise morally indecent. Americans, she wrote, "do not draft legislative accommodations for irrational hatred."
This is largely why the Supreme Court majority struck down DOMA: the 5-4 majority saw it as motivated only by an unconstitutional desire to stigmatize and injure homosexuals. Though Chief Justice John Roberts's dissent highlighted the majority's explicit endorsement of the right of states to define marriage, Justice Antonin Scalia warned that this was only because his anti-DOMA colleagues didn't think they could get away with going further — for now.
That's why some leading traditional-marriage activists insist that the movement must continue to press arguments on the marriage question itself, even as religious liberty takes center stage in their political and policy strategizing.
The Heritage Foundation's Ryan T.Anderson is one of the top theoreticians of the traditional-marriage movement. Anderson has become a high-profile advocate of applying natural law thinking to the marriage debate. His view, in short, is that traditional marriage recognizes anthropological truths about human nature and therefore is critical to building stable societies in which to rear children. Accepting same-sex marriage, he says, requires a philosophical shift that erodes the solid ground on which traditional marriage stands.
"The other side's lead talking point is that opposing gay marriage is the same as racial bigotry," he says. "If this goes unresponded to, it will be no surprise if a majority of Americans eventually decide that they're right. We're not there yet, but if that happens, the religious liberty protections we are able to lock in now will be very fragile."
Both Congress and the Supreme Court are sensitive to political reality. Anderson says the court's refusal to constitutionalize gay marriage in its two rulings this term indicates that the justices are not willing to get out too far ahead of the country on this issue.
"Justice Scalia's dissent said it's just a matter of time until the other shoe drops," Anderson says. "If it looks like the pro-marriage people have given up, the Supreme Court will be more likely to move quickly in usurping authority from citizens and redefining marriage for the entire country. If Congress thinks we've surrendered, they will conclude that there's no point in extending religious liberty to bigots."
In Washington, a prominent religious conservative lobbyist sees Democrats increasingly energized around advancing gay rights, and Republicans "scared of the entire issue."
"They'll talk about these things behind closed doors and wonder where they are leading, but it's only a small group that's prepared to do anything about it right now," says Russell Moore, the new head of the Southern Baptist Convention's Ethics and Religious Liberty Commission.
Moore, a 42-year-old pastor and theologian, has drawn favorable notice for taking a nuanced approach to culture-war issues. He sees his task as not only communicating grassroots Evangelical concerns to political elites but also helping grassroots Evangelicals understand how radically circumstances have changed.
"The problem is that Evangelicals have taken a God-and-country, Moral Majority stance for so long, one that assumes the rest of the culture shares our values, and that it's only small groups of elites out there who are out of step," Moore says.
"I tell them you have to understand the mindset of the other side," he continues. "They see this as the equivalent of the civil rights movement. If the Christian definition of marriage becomes the equivalent of KKK ideology, then religious liberty will be very hard to defend."
This is why both the Windsor ruling and the 2003 Lawrence v. Texas ruling that overturned anti-sodomy laws portend so much ill for marriage traditionalists. Twice in the last decade, the Supreme Court found that laws restricting gay rights were based entirely on animus and served no rational purpose. If the justices apply this reasoning to the core of marriage law, religious conservatives may well find little asylum outside the walls of their churches.
Hence the urgency of marriage activists on religious liberty. Though same-sex marriage is almost certainly the wave of the future, the country isn't there yet. In states where marriage equality is still under contention, traditionalists could take advantage of this divide to negotiate a settlement that both sides can live with — one that protects both religious institutions and religious individuals. Time is on the gay-rights side, but its more pragmatic leaders may be persuaded that achieving basic marriage equality now is worth granting substantial protections to religious dissenters.
This is hard to do in a culture where religious conservatives are increasingly demonized for their beliefs about homosexuality. And not just religious conservatives. In August, Dartmouth withdrew its job offer to African Anglican bishop hired to run a campus spirituality and ethics center because of his past opposition to gay rights. Though Bishop James Tengatenga, a widely respected and effective advocate for peace and reconciliation in his native Malawi, had since evolved into a gay-supporting liberal Anglican, the fact that he hadn't always been one cost him his job.
Granted, a New Hampshire liberal arts college is not America. But stories like this help vindicate the hardline view of Princeton's Robert George that there is "no chance of persuading [gay-marriage proponents] that they should respect, or permit the law to respect, the conscience rights of those with whom they disagree."
Equal Employment Opportunity Commission chairman and gay-rights advocate Chai Feldblum agrees with George. The former Georgetown law professor has written sympathetically about religious concerns, but he concludes that the clash between gay rights and religious liberty is a "zero-sum" affair. People who don't see that are fooling themselves, she contends.
So, with the front in the gay-marriage culture war shifting to religious liberty, where do traditionalists stand?
George writes that they have to win this battle entirely or be crushed everywhere, as segregationists were, and for the same reason: their views will be deemed too abhorrent to be tolerated. On this view, preserving religious liberty cannot be separated from preserving traditional marriage.
Wilson, a religious-liberty scholar, believes that there is room for compromise at the state level to protect religious liberty, and there are good prudential reasons for both sides to do so — but time is running out for the faithful to make deals in state legislatures.
Anderson, the think-tank philosopher, contends that the battle over the meaning of marriage is increasingly difficult but can be won. In any case, he says, it must be waged to prevent an eventual rout for religious liberty.
And Gallagher, the activist, no longer believes winning — that is, stopping gay marriage — is possible but insists, like Anderson, that conservatives cannot afford to surrender and accept their opponents' judgment of them as bigots and haters.
"Refusing despair is a powerful political weapon. If we don't keep fighting, we are not going to be tolerated," says Gallagher. In Windsor's wake, she is working to build legal and political institutions to help traditionalists endure coming hardships.
"The question we have to face is this: did the Supreme Court give us Roe v. Wade, or Brown v. Board?" she says. "If it's Roe, we lose, but our views of marriage will still be respectable. But if we let it be Brown, we're in big trouble."