In this week’s Weekly Standard, Adam J. White has an excellent article arguing that “the future of religious liberty in America is tied inextricably to the future of administrative and judicial power in America.” The relationship is essentially an inverse one, as “minority factions that succeed in capturing either administrative or judicial power … leverag[e] it against religious minorities that stand in the way of their policy agenda.” The Obama administration is of course a major part of White’s case. He documents its “tendency to encroach upon the space that our country normally reserves for religion, conscience, and community.”

As White observes, the “legislative tendency toward compromise and accommodation” is absent from the administrative and judicial processes. The battle over the redefinition of marriage nicely illustrates the point:

[B]y attempting to resolve these issues in courts rather than in legislatures and public referenda, same-sex marriage proponents changed dramatically the very character of the debate. In legislatures or referenda, arguments for and against same-sex marriage must be calibrated to convince the unconvinced, the undecided voters or outright converts. Proponents of same-sex marriage thus argue extending marriage to same-sex couples will benefit society, not harm it. Its opponents argue the reverse. To prevail in those public forums, same-sex marriage’s proponents must grapple seriously with tradition, religion, and other sources of public values, while its proponents must grapple just as seriously with cultural change and changing notions of equality. In courts, by contrast, proponents of same-sex marriage must argue that their opponents are not merely wrong but irrational, if not altogether hateful—and thus that religion is not merely wrong but irrational, if not altogether hateful.

White also sketches a (somewhat) hopeful scenario in which Justice Kennedy, concerned about “government officials’ outright animus” against religious believers, would “help to lay the groundwork to ensure that religious minorities are not forced to support same-sex marriage, or contraceptive mandates, or other impositions, in violation of their religious beliefs.”