The national debate may be settled soon, but what happens to the losing side?
It now seems certain that before too many years elapse, the Supreme Court will be forced to acknowledge the logic of its own jurisprudence on same-sex marriage and redefine marriage to include gay couples in all 50 states.
Once this happens, the national debate essentially will be finished, but the country will remain divided, with a substantial minority of Americans, most of them religious, still committed to the older view of marriage.
What then? One possibility is that this division will recede into the cultural background, with marriage joining the long list of topics on which Americans disagree without making a political issue out of it. In this scenario, religious conservatives would essentially be left to promote their view of wedlock within their own institutions, as a kind of dissenting subculture emphasizing gender differences and procreation, while the wider culture declares that love and commitment are enough to make a marriage. And where conflicts arise — in a case where, say, a Mormon caterer or a Catholic photographer objected to working at a same-sex wedding — gay-rights supporters would heed the advice of gay marriage’s intellectual progenitor, Andrew Sullivan, and let the dissenters opt out “in the name of their freedom — and ours.”
But there’s another possibility, in which the oft-invoked analogy between opposition to gay marriage and support for segregation in the 1960s South is pushed to its logical public-policy conclusion. In this scenario, the unwilling photographer or caterer would be treated like the proprietor of a segregated lunch counter and face fines or lose his business — which is the intent of recent legal actions against a wedding photographer in New Mexico, a florist in Washington state and a baker in Colorado.
Meanwhile, pressure would be brought to bear wherever the religious subculture brushed up against state power. Religious-affiliated adoption agencies would be closed if they declined to place children with same-sex couples. (This has happened in Massachusetts and Illinois.) Organizations and businesses that promoted the older definition of marriage would face constant procedural harassment, along the lines suggested by the mayors who battled with Chick-fil-A. Eventually, religious schools and colleges would receive the same treatment as racist holdouts like Bob Jones University, losing access to public funds and seeing their tax-exempt status revoked.
In the past, this constant-pressure scenario has seemed the less-likely one, since Americans are better at agreeing to disagree than the culture war would suggest. But it feels a little bit more likely after last week’s “debate” in Arizona, over a bill that was designed to clarify whether existing religious freedom protections can be invoked by defendants like the florist or the photographer.
If you don’t recognize my description of the bill, then you probably followed the press coverage, which was mendacious and hysterical — evincing no familiarity with the legal issues and endlessly parroting the line that the bill would institute “Jim Crow” for gays.
What makes this particularly instructive is that such bills have been seen in the past as a way for religious conservatives to negotiate surrender — to accept same-sex marriage’s inevitability, while carving out protections for dissent. But now, apparently, the official line is that you bigots don’t get to negotiate anymore.
Which has a certain bracing logic. If your only goal is ensuring that support for traditional marriage diminishes as rapidly as possible, applying constant pressure to religious individuals and institutions probably will do the job.
I am being descriptive here, rather than self-pitying. Christians had plenty of opportunities — thousands of years’ worth — to treat gay people with real charity, and far too often they chose intolerance. (And still do, in many instances and places.) So being marginalized, being sued, losing tax-exempt status — this will be uncomfortable, but we should keep perspective and remember our sins, and nobody should call it persecution.
It’s still important for the winning side to recognize its power. We are not really having an argument about same-sex marriage anymore, and on the evidence of Arizona, we’re not having a negotiation.
Instead, all that’s left is the timing of the final victory — and for the defeated to find out what settlement the victors will impose.
Ross Douthat’s column is distributed by the New York Times News Service.
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