The Right Needs a New Strategy After Obergefell and Kim Davis
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As the high profile lock-up of a bureaucrat in Kentucky showed, same-sex marriage doesn’t occupy a third rail in American politics just yet. Kim Davis’s civil disobedience in Rowan County is the first flashpoint since the Supreme Court’s Obergefell v. Hodges decision in late June. In response to that decree for nationwide same-sex marriage, society became primed in the rainbow pattern of the gay pride movement. From individual Facebook pages and corporate Twitter accounts to the front portico of the White House, there was a cultural elevation of the decision as a contemporary civil rights milestone. But the reality has set in that although gay marriage may be settled law, it’s far from a settled political issue.

A look back at recent history points to this. Same-sex marriage has followed a steady path through its existence in the United States the last decade-and-a-half: mostly winning in court, mostly losing at the ballot box. In 2004, traditional marriage ran ahead of George W. Bush by an average of 13 percentage points of the vote in the twelve states where it was on the ballot. Four years later similar measures outpolled John McCain in Florida and California by 14 and 15 percentage points, respectively. Through 2012 the traditional marriage side won 30-3 in states that held referenda.

But why did same-sex marriage go from a 60-40 losing proposition in most national polling through 2010 and then start to capture a slim majority of support? The inflection point coincided with a series of judicial decisions to override state-level laws and constitutional provisions upholding traditional marriage. These judicial interventions are what gave nationwide gay marriage an aura of inevitability.

It’s easy to decry this as judicial activism run amok, but judges from Connecticut to Iowa to California were not acting independently of politicians. What began as a sideshow in Massachusetts in 2003 eventually morphed into a newfound right to marry when it became clear that the Republican Party would not muster an active opposition to same-sex marriage. After endorsing a constitutional amendment and scoring gains on the issue in his re-election campaign in 2004, President Bush spoke about it publicly just one more time. GOP leadership in Congress also refused to push for the amendment or for other measures promoting traditional marriage.

Even as same-sex marriage got rejected over and over again by voters at the state level, Republican abdication ensured that the consequences of those defeats did not matter nationally. Red states and blue states alike hardened their positions in favor of traditional marriage, but gay groups like Lambda Legal in tandem with the rest of the left waged an effective national argument and litigation strategy in the other direction due to the lack of a corresponding political opposition.

The question for the Supreme Court was never if but when it would mandate same-sex marriage. Obergefell arrived on a superstructure of related sexual rights for contraception, abortion, and sodomy that were the victories of left-wing litigation. The cases on contraception (Griswold v. Connecticut) and sodomy (Lawrence v. Texas) were contrived challenges to outdated and unenforced statutes.

The precursor event for Republican relinquishment on marriage is Lawrence, where Texas Attorney General John Cornyn refused to undertake the state’s defense while preparing a run for U.S. Senate and left a clueless district attorney to represent it in court. The Bush administration did not submit an amicus brief. Lawrence, like Obergefell also written by Justice Anthony Kennedy, framed gay sex as a healthy, pro-family activity that deserved the highest legal protection. Same-sex marriage was the next logical step (which Justice Antonin Scalia foresaw in his dissent).

Republicans’ reluctance to challenge that jurisprudence stems from their resistance to treating homosexuality as anything other than a normative good. Instead of scrutinizing the compatibility between homosexuality and marriage, they have chosen to merely defend traditional marriage on its own terms.

This turned out problematic for a legal argument that centered on the state’s interest in procreation. If same-sex households are just as suitable for children as opposite-sex ones, why did the government recognize only one of these two kinds of marriage? This is the trap that former Michigan Solicitor General and experienced Supreme Court practitioner John J. Bursch fell into in his oral argument on behalf of the states in Obergefell when he acknowledged that children would be better off raised by married gay couples than unmarried ones.

Even the most influential conservative intellectuals working on the issue, led by Heritage Foundation scholar Ryan T. Anderson, have embraced the strategy of exalting traditional marriage while saying little about same-sex relationships. On the road to Obergefell they fought a contest against the left over dueling visions of marriage — one derived from natural law, the other from the modern infatuation with emotionally based relationships. We shouldn’t be surprised who won.

Anderson devotes much of his new book following the ruling, Truth Overruled, to why traditional marriage advocates should demand new legal protections for their beliefs. This religious freedom campaign was ineffective leading up to Obergefell for a reason. In American politics the concept of equality tends to trump the First Amendment, and the left has already successfully framed marriage as a civil right. While there have been a handful of horror stories for wedding vendors Anderson cites — such as the impending $135,000 fine for an Oregon couple that declined to bake a cake for a same-sex wedding — they don’t amount to an argument against gay marriage per se or even a rationale for Congress to swoop to their defense. Neither does Davis’s jailing, as absurd as it is.

The free speech defense against same-sex marriage easily passes for pretentious victimization. A widely mocked viral video made by CatholicVote, “Not Alone,” of traditional marriage believers proclaiming themselves anxious about professing their beliefs (which includes the George Costanza-esque refrain “I have friends who are gay!”) demonstrated this. It has the effect of further marginalizing whatever is left of the political concept of traditional marriage in the public’s mind. If special rules have to be set up to protect traditional marriage advocates for their beliefs (or keep them out of jail), what kind of losers are they?

How can conservatives move public opinion back in the other direction on gay marriage? They must be willing to challenge the left’s main argument that same-sex relationships are a facsimile of traditional marriage. Leading gay cultural voices like Dan Savage who advocate various forms of open marriage are squarely at odds with the plaintiffs’ pitch to the Supreme Court that they want the same things as any married couple. Furthermore, a National Institute of Mental Health-backed study on HIV risks for gay couple found that approximately half live in an open relationship. Anderson in his book mentions that social scientists have believed same-sex relationships to be inherently less stable than opposite-sex ones due to long-known sex qualities: men tend to be more promiscuous than women and women tend to be more driven by emotional satisfaction. Each tendency replicated in a relationship adds strain to it.

Twice in his opinion Justice Kennedy referred to homosexuality as being “immutable,” another component of the normative good consideration that has never been challenged by conservatives. When asked, Republicans from George W. Bush on down have tended to say that they don’t know if homosexuality is a choice or a predisposition — a perfectly reasonable answer. Of course, predisposition is not the same thing as immutability. Kennedy could have figured this out on his own from the court’s petitioners who had left traditional marriages and were now suing for same-sex marriage rights, or the preponderance of evidence that many of the children raised by same-sex couples arrived along with one of them from a traditional marriage. But not having this case against immutability brought to his attention in the political discourse ensured Kennedy and company wouldn’t be prompted to consider it. The presumption of immutability became another reason to confer a civil right on same-sex relationships.

The most compelling of the amicus curiae in Obergefell were the briefs submitted by the adult children raised in same-sex households. Heather Barwick and Katy Faust pointed out that such arrangements necessarily separate children from their mother, father, or both parents. “If it is undisputed social science that children suffer when they are abandoned by their biological parents and then adopted, when their parents divorce, when one parent dies, or when they are donor-conceived, then how can it be possible that they are miraculously turning out ‘equally well’ when raised in same-sex-headed households?” they write. Same-sex marriage acquires children by one of those four methods, and in the process stakes the couple’s right to children above the child’s right to their own parents.

Because liberalism is an ideology, it won’t stop at same-sex marriage any more than it stopped at constitutional rights for abortion and sodomy. Although the Obergefell decision strained to impart the context of “two persons,” there is nothing in its jurisprudence to rule out polygamy. As Fredrik deBoer argued in Politico, “People are living in group relationships today. The question is not whether they will continue on in those relationships. The question is whether we will grant to them the same basic recognition we grant to other adults: that love makes marriage, and that the right to marry is exactly that, a right.” Substitute “gay” for “group” and you could mistake this for Anthony Kennedy’s prose.

If Republicans are willing to make arguments challenging same-sex marriage itself, rather than just “defending traditional marriage,” they could restart the effort to return the definition of marriage from the courts to the states. Ted Cruz and Scott Walker have endorsed a constitutional amendment to do that, while Jeb Bush and Marco Rubio say that instead we need to accept the ruling while protecting religious liberties and in future nominating good judges (as if that always works out). One thing Republican voters have certainly gleaned from the last decade is that if a candidate will not talk about the marriage issue they will not do anything about it in office. Therefore the 2016 GOP presidential nomination could hinge on whether or not the winner has a plan to fight same-sex marriage in the wake of Obergefell.

There’s evidence that more than just disgruntled Republican voters are looking for such a plan. Polls by Gallup and the Associated Press after the decision show a dip in support for same-sex marriage. Most interesting is the Washington Post-ABC News finding that 63 percent of Americans are uncomfortable with the country’s overall direction on social issues. This includes 68 percent of independents and 43 percent of Democrats.

It shouldn’t be news to the Republican Party that voters weren’t won over by the Supreme Court, corporate America, Hollywood, and other elites on gay marriage. The key to channeling that uneasiness into political success will be making arguments that voters largely have yet to hear — namely, that same-sex relationships are not complementary to traditional marriages, and do not contain the promise to improve upon them. If one or more Republican presidential candidate is willing to say that, the debate may well resume in a manner favorable to conservatives. That path offers much more promise than making a martyr out of a lone county clerk does.

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