In yesterday’s oral arguments in Obergefell v. Hodges (better known as the “gay-marriage case”), the solicitor general of the United States committed a classic “Kinsley gaffe”: He accidentally told the truth. Normally, in any argument about the next legal step of the sexual revolution, the accusation or even implication that there’s a slippery slope is grounds for outrage. Not only shouldn’t we explore the legal implications of expanding the definition of marriage, the very attempt is homophobic. Pay no attention to the man behind the curtain.
Yesterday, however, the solicitor general tugged at that curtain, revealing the Jacobin behind — a nonviolent version, of course, but a Jacobin nonetheless. It turns out that the sexual revolution — like the French Revolution — demands “de-Christianization.”
JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?
GENERAL VERRILLI: You know, I I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.
The exempt purposes set forth in section 501(c)(3) are charitable, religious, educational, scientific, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; advancement of religion; advancement of education or science; erecting or maintaining public buildings, monuments, or works; lessening the burdens of government; lessening neighborhood tensions; eliminating prejudice and discrimination; defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.
The Bob Jones case, however, held that even if an entity fell within enumerated statutory categories — i.e., both religious and educational — the IRS could still lawfully withhold the tax exemption if the entity did not “serve a public purpose” and was “contrary to established public policy.” In other words, if the IRS could make a supportable finding that the tax-exempt entity was — in essence — harmful to civil society, it could withhold the exemption no matter the designated purpose of the organization. In Bob Jones, the Court found that explicit racial discrimination (bans on interracial relationships) meant that the college was not truly “charitable” and thus could not receive an exemption.
But it’s worse than mere opposition. As the French revolutionaries learned, you can’t replace something with nothing. Thus, the revolutionary ideals themselves must be rendered sacred. In France, that meant the Cult of Reason or — if you weren’t willing to kick faith entirely to the curb — the Cult of the Supreme Being. Here, we’ve created the Cult of Sexual Autonomy, and this is its statement of faith from Justice Anthony Kennedy, the swing vote in Obergefell: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Members of the Supreme Court are not philosopher-kings, and it’s safe to say that millions upon millions of citizens do not believe that such radical individualism is at the “heart of liberty.” Indeed, one of the great accomplishments of the American Revolution was the creation of a state that allowed people of all faiths, of no faith, and of radically divergent views of liberty to carve out a place in a new nation, sustain their own thriving communities of shared purpose, and live largely free of concern that the state would move to suppress or silence your faith and viewpoint.
In 1983, in the Bob Jones case, the Supreme Court made a limited exception to that general principle — as part of the ongoing attempt to eradicate the vestiges of our nation’s greatest moral error and its greatest physical crisis. To even begin to compare orthodox beliefs about marriage to the legacy of chattel slavery, Jim Crow, and a ruinous Civil War is to utterly take leave of any sense of moral proportion.
But the Jacobin advances the revolution by any means — and through any reasoning — necessary. To the Jacobin, you are either a revolutionary or an enemy, and no lesser light than the federal government’s chief constitutional advocate has now raised the specter of a legal regime far worse than “separation of church and state.” For the sexual revolutionaries, it’s the state against the church.
— David French is an attorney and a staff writer at National Review.