Indeed, Chief Justice John Roberts emphasized the limits of the majority’s opinion. He made clear that neither the holding nor its logic required redefining state marriage laws. And Justice Alito made clear the actual constitutional status of marriage laws.
Alito framed the debate as a contest between two visions of marriage — what he calls the “conjugal” and “consent-based” views. Alito cited my book, What Is Marriage? Man and Woman: A Defense, as an example of the conjugal view of marriage: a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life.” He cited Jonathan Rauch as a proponent of the consent-based idea that marriage is a commitment marked by emotional union.
Alito explained that the Constitution is silent on which of these substantive visions of marriage is correct. And, so, Alito said, the Court should defer to democratic debate.
At the same time, we should be clear-eyed about what’s coming next. The courts seem intent on disregarding the democratic process and usurping authority away from citizens and their representatives. But the Court will be less likely to usurp the authority of citizens if it is obvious that citizens are engaged in this democratic debate and care about the future of marriage. This is what Justice Scalia predicted: The Court will do whatever it thinks it can get away with. And as recent events in the lower federal courts suggest, judges seem to think they can get away with a lot.
We must, therefore, rally in support of our constitutional authority to pass laws defining marriage truthfully. We must make clear that Court-imposed same-sex marriage via a Roe v. Wade–style decision will not settle the marriage debate any better than it has settled the abortion debate.
TWO. Defend Our Form of Government and Our Liberties
Whatever happens at the Court will cause less damage if we vigorously advance the arguments for a classically liberal form of limited government and highlight the importance of religious liberty. Even if the Court were to one day redefine marriage, governmental recognition of same-sex relationships as marriages need not and should not require any third party to recognize a same-sex relationship as a marriage. Protecting religious liberty and the rights of conscience does not infringe on anyone’s sexual freedoms.
Indeed, a regime of free association, free contracts, free speech, and free exercise of religion should protect citizens’ rights to live according to their beliefs about marriage. And yet, a growing number of incidents show that the redefinition of marriage and state policies on sexual orientation have created a climate of intolerance, intimidation, and even government coercion for citizens who believe that marriage is the union of a man and woman and that sexual relations are properly reserved for marriage. State laws that create special privileges based on sexual orientation and gender identity (dubbed SOGI) are being used to trump fundamental civil liberties such as freedom of speech and the free exercise of religion.
Under such laws, family businesses — especially photographers, bakers, florists, and others involved in the wedding industry — have been hauled into court because they declined to provide services for a same-sex ceremony in violation of their religious beliefs.
Conservatives, indeed all Americans, must work to prevent the passage of such laws and to call our fellow citizens to embrace the best of the classically liberal form of government. Although Americans are free to live how we choose, we should not use government to penalize those who think and act differently.
Private actors should be free to make reasonable judgments and distinctions — including reasonable moral judgments and distinctions — in their economic activities. Not every florist need provide wedding arrangements for every ceremony. Not every photographer need capture every first kiss. Competitive markets can best harmonize a range of values that citizens hold. And there is no need for government to try to force every photographer and every florist to participate in every marriage-related event.
Likewise, we must help our neighbors see the importance of religious liberty in particular. Protecting religious liberty and the rights of conscience fosters a more diverse civil sphere. Tolerance is essential to promoting peaceful coexistence even amid disagreement.
When he “evolved” on the issue, President Obama insisted that the debate about marriage was a legitimate one and reasonable people of good will were on both sides. Obama explained that supporters of marriage as we’ve always understood it “are not coming at it from a mean-spirited perspective” but “because they care about families.” He added that “a bunch of ’em are friends of mine . . . you know, people who I deeply respect.” And yet, in a growing number of incidents, government hasn’t respected the beliefs of Americans.
Respecting religious liberty for all those in the marketplace is particularly important. After all, as first lady Michelle Obama put it, religious faith “isn’t just about showing up on Sunday for a good sermon and good music and a good meal. It’s about what we do Monday through Saturday as well.”
In addition to blocking bad policy, such as SOGI provisions, policymakers should pursue good policy. Policy at the federal level should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. Policy should prohibit the government from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation, or contracting.
States need similar policy protections, starting with broad, across-the-board protections provided by state-level Religious Freedom Restoration Acts (RFRAs). States must protect the rights of Americans and the associations they form — both non-profit and for-profit — to speak and act in the public square.