When the Supreme Court ruled in favor of same-sex marriage in June, the conventional wisdom was that social conservatives would shift from fighting against redefining marriage to fighting for religious liberty.
A good example of what that strategic shift might look like could be found in a speech Sen. Mike Lee, R-Utah, delivered even before the high court decision came down. Lee said he didn’t believe gay marriage was “a constitutional requirement, or a federal prerogative, or even good policy for that matter.” But he acknowledged his viewpoints were no longer carrying the day.
“Sometimes in a democracy,” he said, “the other side wins.” Lee instead advised social conservatives to learn from the example of the liberals who had beaten them on marriage in order to better defend religious freedom.
“We should never lose sight of the fact that the marriage equality movement is succeeding not by focusing on marriage, but by focusing on equality,” Lee argued. “Political conservatives and religious traditionalists may not like how the gay marriage debate is going. But it is no small thing that the gay marriage movement has succeeded in recent years only by adopting our principles — of tolerance, diversity, and equal opportunity.”
The Kim Davis saga suggests Lee’s argument isn’t carrying the day. Much of the Republican presidential field has rallied to the embattled Kentucky clerk’s defense, with Mike Huckabee going so far as to declare he’d be willing to go to jail in her place.
Pivoting from marriage to religious liberty was always going to be easier said than done. For social conservatives, the “other side” didn’t win through democracy. Although public opinion was moving swiftly in favor of gay marriage, the Supreme Court moved even faster, speeding up and perhaps short-circuiting a process that would have happened more slowly through legislation and popular referendum.
Supreme Court decisions haven’t always settled arguments for social conservatives. In fact, the modern religious right was largely the product of losses at the nation’s highest court on issues ranging from school prayer to abortion. Even many conservatives who support gay marriage were skeptical Obergefell was really rooted in the Constitution.
At the same time, social liberals were always likely to see a bait-and-switch in religious liberty arguments from social conservatives. It wasn’t long ago that the people who now want their freedom of conscience respect had instead preferred that their beliefs about marriage be written into law.
Mike Lee’s speech implied that a successful defense of religious liberty would require a reluctant acceptance of defeat on marriage. “Soon, it seems likely that America’s public square will fully welcome married, same-sex couples — not as victims or revolutionaries, but simply as equals,” he said.
“To truly succeed, we must be gracious, and civil, and solicitous,” he added. “Not only to preserve our own freedom, but the equal freedom, too, of those who disagree with us, those who are — though we may sometimes be tempted to forget — our brothers and sisters and friends, just the same.”
Many social conservatives don’t accept that the legal and political fight over marriage is over. Thus, many social liberals regard arguments over religious liberty as a backdoor way to continue those fights. They’re not always wrong.
Neither are social conservatives always wrong to say that the arguments for tolerance and liberty that served gay marriage proponents when they were still losing have in some cases gone by the wayside since they started winning. Bakers, florists and photographers — who unlike Kim Davis operate in a competitive marketplace that can produce win-win outcomes for both same-sex couples and same-sex marriage opponents — are at risk of losing their businesses and life savings for following a definition of marriage that was required of top-tier Democratic presidential candidates as recently as 2008.
At the same time, our country’s well-documented history of racial injustice has left us ill-equipped to argue for liberty whenever discrimination is being alleged, no matter how different the circumstance are.
Then add in the fact that Republicans are about as opposed to same-sex marriage as the country was as a whole when Bill Clinton signed the federal Defense of Marriage Act into law, with Hillary’s blessing and Joe Biden’s vote. The bottom line: You’re set up for a continued debate, even if the party’s youngest members are on the opposite side.
These are the political conditions leading the GOP presidential field to sound more like Kim Davis, a Democrat, than Mike Lee, a Republican.
