The purpose of the legislation is to provide progressive activists with a cudgel to beat religious believers into submission.
The purpose of the legislation is to provide progressive activists with a cudgel to beat religious believers into submission.
I n principle, I don’t object to federal same-sex marriage legislation. I could not object more intensely, however, to the federal “Respect for Marriage Act” that Congress is about to enact.
If the legislation were merely about the merits of shoring up a federal entitlement to same-sex marriage through the appropriate route of federal legislation, I would lay my philosophical reservations aside. In the name of domestic tranquility regarding an issue on which my opposition is ambivalent while the pro-side is invested and passionate, I would accede. Alas, the legislation is not about enabling same-sex marriage. It is about extorting the progressive version of virtue, with emphasis on extortion.
It is just mind-boggling that a dozen Senate Republicans and 47 House GOP members could support, not same-sex marriage, but a progressive jihad to use the arduous legal process as a weapon against religious liberty. As the now-familiar saying goes, that’s how you end up with Trump . . . and how you consequently end up with a pink trickle when you were expecting a red wave.
Stipulated: I adhere to the traditional understanding of marriage, which is well explained in our editorial from earlier this week. To me, it is not a slight against gay people to observe that they do not fit this definition, no more than it would somehow be a slight to me that I can’t be a mother. Yes, I’m a good parent and love my children very much like my mother loves me; but I can never love them the same way my mother loves me because I’m not their mother and, for deeply human reasons that only begin with biology, it is a different kind of bond. My inclination is to celebrate the wonders of the natural order; where it excludes me, I have to try to understand why, not resent it.
Then there is the matter of language. I’ve construed “same-sex marriage” to be one of those many terms — e.g., “biological sex,” or “choice” in lieu of “abortion” — by which progressives seek to erode our traditions and our understanding of the natural order. My default position has been to reject such terms and the novel arrangements they portend. But for reasons I’ll come to shortly, I think on “same-sex marriage,” I’ve been too doctrinaire.
To be sure, I am never going to be convinced that a same-sex relationship — even a loving, committed, monogamous one — constitutes marriage as it has been properly understood for millennia. But I could be wrong. More to the point, in a tolerant, pluralistic society, it shouldn’t matter if I’m wrong. There is obviously a set of mutual benefits and obligations, commonly thought of as attendments of marriage. If the people’s elected representatives statutorily put committed gay couples on a legal par with married heterosexual couples when it comes to those benefits and obligations, I could be content with its doing so under the rubric of marriage. After all, I support ensuring that committed gay couples have these legal benefits and obligations. Sure, I’d prefer that they were granted under the heading of domestic partnership rather than marriage. But what it’s called is not that important to me; by contrast, gay couples, my fellow citizens, passionately desire to be recognized by law as married. Deferring to them does not harm me as long as I remain free to hold and express any religious or philosophical reservations I may have.
As I said, I’ve been too doctrinaire on same-sex marriage. That’s because I’m hyper-focused on the language game. The Left’s Kulturkampf offensives always start with language. Progressives have learned that once you successfully control the terms under which a debate is conducted, it’s checkmate — it may take some time, but victory and all it portends is inevitable. As a result, when the Left tries to change the way we describe traditional concepts, such as marriage, every instinct I have screams athwart!
But not all language games are the same. Take, for example, the term biological sex. Just as the culture war over marriage was lost the moment traditionalists agreed that it could or should be modified by words like traditional or heterosexual, so too has the Left mobilized to undermine our understanding of sex. That’s why you won’t hear me modifying, say, sex, male, or female with such adjectives as biological, cis, or endosex. I’m not going to help them. But just because the same language strategy is in play, we should not assume that it applies the same way to marriage as to sex.
Sex is a biological reality. Biology is an immutable fact. It is not state of mind. I was born male. I could no more be female than I could be seven feet tall. To chip away at sexual facts of the natural order, then, the Left first persuaded us to equate sex with gender, a more malleable concept. Gender is rooted, not in biological reality, but in grammar, in semantics, in assigning the sense of masculine, feminine, or even neuter to nouns — objects both animate and inanimate, places, concepts, and so on. This was a highly successful stratagem: Sex and gender have been used interchangeably for so long that today’s college students tend not to know the difference, and sex has largely disappeared from standardized forms. (By contrast, forever ago when I was in high school, if a form asked about “sex,” the occasional wisenheimer still answered “Sure!” rather than “male.”)
Inexorably, once sex became gender, it was a short hop to the perception that male and female, rather than objective natural conditions, were concepts just as adaptable as the application to nouns of the perception that they are masculine, feminine, or neuter (or should I say nonbinary?). Before you knew it, we were immersed in a seemingly endless menu of gender options — which I’d call ridiculous . . . except that many of the notions I used to laugh off as ridiculous are now mandates, enforced by the Stalinist ostracism known as cancellation.
To deny that a man can be a woman, a boy a girl, and vice versa, is to observe reality and affirm the natural order. That is sufficiently obvious that the Left must pivot to its ever-ready tactics of demagoguery and ad hominem: We who cling to biological facts are “haters,” “bigots” who deny people their “choices” and “dignity.” But no one has a choice about how he or she is born. And no one is denying human dignity. I have deep sympathy for people who are confused about their sex (I won’t call it their “gender identity”). I feel for anyone who is delusional, particularly about basic reality. It is a tragic way to live. But when we get down to “what is to be done?” it is these people who need help and understanding; the overwhelming majority of people on the planet should not be expected to distort the natural order just because a negligible subset won’t or can’t accept it.
But marriage is saliently different from sex in this regard.
Yes, marriage has a traditional understanding based on millennia of human experience. That experience should not be cast aside in favor of an innovation — same-sex marriage — with which we have comparatively little experience. But unlike sex, marriage is not a remorseless biological fact. It is a social construct — a fundamental one, to be sure, a building block for flourishing human society. But it is a construct all the same. Social constructs can and do evolve as society’s understanding changes. Thus have conventions about marriage altered over time: Modern societies tend to have very different standards regarding, for example, consent, age, degrees of consanguinity, and bigamy than did earlier ones.
To my mind, evolving standards on these matters do not alter the essence of the marital institution — a union based on sexual complementarity for the promotion of procreation and the raising of children in a family, with its mutual ties of love and duty. But if we are going to emphasize the natural order, how can we ignore that homosexuality has been part of the human condition since there have been humans? Given the fraught politics of the subject, it is hard to measure with precision how common it is — I suspect it’s in the less than the 5 percent range, and likely markedly less. No “gay gene” has been identified, but millennia of experience teach us that homosexuality is a natural state, though far from a normative one. That being the case, gay couples ought to have as much right as the rest of us do to pursue happiness.
Should that mean marriage, at least in the eyes of the law? Well, in a tolerant, pluralistic society, why shouldn’t it?
In such a society, my religious liberty and freedom of conscience would be guaranteed. If I hold a belief that marriage is rooted in religious and cultural principles that exclude gay couples, the state may not coerce me to abandon my belief and violate my conscience. The state is simply saying that, for purposes of the civil recognition of marriage (that is, its legal benefits and obligations), a gay couple who join in a committed, monogamous relationship should be treated equally to other couples whose joinder the state recognizes as formal marriage. It would cost me nothing to respect that, regardless of whether I disagree with the philosophical underpinnings. In a tolerant, pluralistic society, I could accept the society’s political decision to recognize gay marriage, and the society would accept my right to adhere to the traditional understanding of marriage. There is plenty of room for everyone to be content, to live and let live.
But here we come to the misleadingly titled Respect for Marriage Act currently under consideration. It does not strive for tolerance and domestic tranquility. To the contrary, and no matter Congress’s pretensions about ensuring the federal right to same-sex marriage that five Supreme Court justices lawlessly mandated in Obergefell v. Hodges (2015), the purpose of the legislation is to provide progressive activists with a cudgel to beat religious believers into submission. If that were not the case, Congress would readily have adopted the amendment offered by Senator Mike Lee (R., Utah). Personally, I’d have gone further than Senator Lee in protecting religious liberty, but that’s easy for me to say, and his amendment was clearly a meaningful step forward.
Democrats claim they want to protect same-sex marriage in statutory law. In truth, it doesn’t need protection. The Left’s claim that Justice Clarence Thomas’s concurrence in the recent Dobbs abortion ruling sounds the death knell for other substantive-due-process excesses (e.g., same-sex marriage, contraception) is false. But let’s put that aside. After all, there is nothing wrong in principle with enacting a statutory right in order to shore up or improve on a constitutional protection. If that were all the Respect for Marriage Act did, especially under circumstances where Obergefell is not actually going to be overruled, it would not be worth fighting over.
Of course, if that’s all there were to it, the Left wouldn’t want it so badly. Democrats want the Respect for Marriage Act because it is a potent weapon against religious liberty, camouflaged in lofty rhetoric about dignity and benign intentions. The Lee amendment would guard against that possibility. It would have made clear that people who do not embrace same-sex marriage out of religious conviction could not be pressured by government to act against their consciences. It would have assured that institutions — groups of people — who do not recognize same-sex marriage in their activities or ministries would not be punished by the loss of their tax-exempt status and other legal benefits.
This would be commonsense deference to the bedrock constitutional right of religious liberty. The only plausible rationale for rejecting it is that proponents of the Respect for Marriage Act precisely intend for it to be deployed as a litigation weapon. For the Left, it is not enough to tolerate same-sex marriage; you are to laud and celebrate it — or else.
The legislation is Masterpiece Cakeshop writ large. Remember: The activists who’ve hounded the culinary artist Jack Phillips for year after year did not actually need him to design their wedding cakes. There were scores of bakeries that would have done a fine job at a fair price, and been happy to get the business. Jack Phillips was targeted because he lives by traditional religious beliefs that progressive activists find repulsive. He was chosen not because a gay couple was unable to find a baker who would make the cake, but because he was the baker they knew would refuse to make the cake. He was not singled out because of his animus against gay people — indeed, he harbored no ill will, just a traditional religious conviction about the marriage rite. He was singled out because of the activists’ animus against him, because he dared to elevate his convictions over their conception of “virtue.”
Astonishingly, rather than joining Lee to prevent the coming jihad against believers, a dozen Republican senators have approved a provision that is not only an illusory protection of religious liberty, but is itself an assault on religious liberty.
It would hold “nonprofit religious organizations” harmless for declining to participate in the “solemnization or celebration” of a same-sex marriage. This aids and abets the secular Left’s decades-long campaign to rewrite the First Amendment. For those many Republicans who appear to have forgotten, this constitutional guarantee provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” That is, it makes religious liberty an individual right. The right is not limited to formal organizations that self-identify as religious. It belongs to every one of us. Explicitly, it is a prohibition on Congress — meaning it is not our burden to defend our beliefs; lawmakers are forbidden to infringe them. Yet such infringement is what catalyzes the Respect for Marriage Act.
Principally, moreover, the Left’s attacks in this regard are neither directed at such religious entities as churches, synagogues, and mosques, nor limited to the “solemnization” of same-sex marriage (i.e., participation in the formal ceremony). They are exploitations of government power against individual believers — mainly small-business operators who decline to violate their consciences in the promotion of gay marriage. And to the extent that secular progressives target faith-based institutions, it is to undermine their capacity to deliver such crucial social services as adoption, foster care, and medical treatment.
The Respect for Marriage Act ought to be rebranded the Annihilation of Religious Liberty Act. If you are a Republican (or anyone else for that matter) and you support this legislation, that is what you are supporting. And when you come pleading for our support, we should never forget.
I would be more than willing to set aside my reservations about same-sex marriage in deference to same-sex couples’ passionate desire to enshrine in legitimate statutory law the assurance that they enjoy the same tax, inheritance, and other legal benefits enjoyed by married couples. If our society had simply decided to confer on such same-sex couples the civil-law status of marriage, I would withdraw my objection and live contentedly with that outcome, as we agree to do in a diverse republic once democratic procedures have been observed.
That is not what the Respect for Marriage Act is about. It is, instead, a scheme to use the legal system — in all its steep burdens, prohibitive expense, and drawn-out anxiety — against religious believers. It is just another progressive artifice to make the process the penalty.