Commentary Magazine


Topic: gay marriage

Three Ways Conservatives Can Move Forward After Last Week

1. Know Thine Enemy. The problem isn’t someone on Twitter who gloats about Obamacare and gay marriage and the triumph of left-liberalism. The problem isn’t even disgusting people who spit on a priest walking past the gay pride parade in Manhattan this weekend. The problem is governance by an unelected elite. Read More

1. Know Thine Enemy. The problem isn’t someone on Twitter who gloats about Obamacare and gay marriage and the triumph of left-liberalism. The problem isn’t even disgusting people who spit on a priest walking past the gay pride parade in Manhattan this weekend. The problem is governance by an unelected elite.

John Roberts ruled, effectively, that the IRS had the power to define Obamacare however it needed to in order for it to work. He is unelected, as are the IRS officials whom he so empowered (and the bureaucrats who will be empowered by this precedent in future cases). It was the notorious Jonathan Gruber of MIT whose imprudent public statements revealed Obamacare’s design was to force compliance at the state level and lie about it.

Similarly, in the case of gay marriage, a matter of cultural controversy was resolved, with the imperial words “it is so ordered,” by five unelected justices of the Supreme Court. The “right to gay marriage” has now become constitutional, something non-gay marriage never was. The change in prevailing views on gay marriage wasn’t happening quickly enough for the justices so they hastened it — in effect imposing a revolutionary change that could simply have been evolutionary if allowed to work its way over the next decade through an altered country.

I support gay marriage, but I don’t support this way of doing business. I support the death penalty, too, but that doesn’t mean I support posses stringing people up and hanging them. And even if I didn’t support gay marriage, I would find its legislative successes impossible to argue with, whereas Justice Kennedy’s ludicrously sentimental and lawless opinion can and will be argued over for decades.

2. Invoke basic American governing rules and the rule of law. What unites these policies, and certain strains of Obamaism, is the impatience with the democratic process and the rule of law. That was what liberated the president from the customary bounds of executive power when he announced he was imposing the rules of the Dream Act under the logic that because Congress wouldn’t make this law he so wanted he’d just make it himself. Conservatives can easily unite under the banner of the notion that we are a nation of laws and that we are being captained into lawless waters whose rocky shoals could entirely upend the ship of state.

3. The problem is Washington. What happened with the Confederate flag in South Carolina last week is a good example of how change can come about quickly and almost without controversy so long as Washington is not involved. When Washington gets involved, the battle lines harden, the money machines get cranking, and the system becomes sclerotic to benefit the players. Obamacare is a Washington tentacle. The Supreme Court’s imposition is a Washington tentacle. Keeping the focus on the Washington aspect of the problem is necessary to frame the difference between Right and Left.

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What Can Conservatives Do About the Gay Marriage Decision?

In the wake of Friday’s decision by the U.S. Supreme Court to recognize same-sex marriage as a constitutionally protected right, a lot of conservatives are fumbling for an effective response. So far, the results are far from encouraging. Understandably social conservatives feel marginalized. But the majority’s shaky legal reasoning rightly discourages even those on the right who have no strong feelings against gay marriage or actually support it. The willingness of Justice Anthony Kennedy and his four liberal colleagues to bypass both the legislative process and the verdict of voters (both of which were trending in the direction of the pro-gay marriage movement) in order to make new law with only a tenuous connection to constitutional principles strikes even libertarians who are pleased with the results of the decision as a dangerous usurpation of authority. But how can any political movement or party successfully fight on an issue where both popular culture and the political environment have both shifted against you? To listen to some prominent voices, the choices facing the right seem to boil down to impotent rage or sullen silence about the gay marriage decision. But here are four simple suggestions that offer Republicans a way out of what seems a lose-lose situation.

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In the wake of Friday’s decision by the U.S. Supreme Court to recognize same-sex marriage as a constitutionally protected right, a lot of conservatives are fumbling for an effective response. So far, the results are far from encouraging. Understandably social conservatives feel marginalized. But the majority’s shaky legal reasoning rightly discourages even those on the right who have no strong feelings against gay marriage or actually support it. The willingness of Justice Anthony Kennedy and his four liberal colleagues to bypass both the legislative process and the verdict of voters (both of which were trending in the direction of the pro-gay marriage movement) in order to make new law with only a tenuous connection to constitutional principles strikes even libertarians who are pleased with the results of the decision as a dangerous usurpation of authority. But how can any political movement or party successfully fight on an issue where both popular culture and the political environment have both shifted against you? To listen to some prominent voices, the choices facing the right seem to boil down to impotent rage or sullen silence about the gay marriage decision. But here are four simple suggestions that offer Republicans a way out of what seems a lose-lose situation.

First, don’t try to fight a battle you can’t win. Let’s face it, even if you think the gay marriage decision was an affront to your religious beliefs and/or your constitutional principles, there simply is no getting around the fact that most Americans seem to be well pleased with it. It’s true that a liberal popular culture echo chamber is orchestrating the way everything in the country seems to be bathed in rainbow hues the last few days. But if a critical mass of Americans hadn’t already come to the conclusion that treating the desire of two men or two women to have the state recognize their union as a marriage, the scrapping of traditional notions about the institution wouldn’t have succeeded. The plaintiffs in the case won because they appeared as ordinary citizens seeking equal rights rather than as radicals or revolutionaries. That is something that conservatives must accept. Any response to such an appeal that doesn’t sympathize with those sentiments and recognize their power is bound to come across as hard-hearted if not bigoted. Conservatives may be forgiven for not understanding how things could change so quickly but whereas support for gay marriage was restricted to the margins of our political life only a few years ago (isn’t that right former gay marriage opponents Barack Obama and Hillary Clinton?), it now commands the support of most voters. Any response to the decision that isn’t rooted in that fact is a formula for political disaster in terms

Second, don’t let this issue become a defining issue for 2016. Nevertheless, that is advice some presidential candidates will ignore and with good reason. Some, like Ted Cruz, Mike Huckabee, Bobby Jindal and Rick Santorum see anger about the decision as a way to get social conservative voters motivated to go out and vote. That may work for them in the primaries, but other Republicans should be wary about their citing the 2004 election as the reason why their anger on the issue should be the keynote of the GOP in 2016. It’s true that revulsion at the thought of changing the law to legalize gay marriage helped mobilize support for George W. Bush’s re-election campaign as conservatives turned out in numbers that exceeded their showing in the next two presidential campaigns. But while Republicans failed to energize their base in 2008 and 2012, sensible conservatives understand the ground has shifted on them since 2004. The GOP can win in 2016 but not by pushing the same buttons they used then. The economy and foreign policy after eight years of President Obama’s disastrous policies offer better options for winning issues. The next president doesn’t have to be a fan of the Supreme Court’s decision (and none of the Republicans are) and can back traditional marriage, but that can’t be a major theme of the campaign if the GOP is to win the independent votes they need to carry swing states.

Third, conservatives must defend, not fight the Constitution. The willingness of Bobby Jindal and Ted Cruz to talk about changing the way the high court is chosen or altering the tenure of the justices is red meat for the base but it is also the opposite of the tone conservatives should adopt. The same goes for Scott Walker’s talk about a constitutional amendment opposing the gay marriage decision.

Everybody gets angry at the Supreme Court and often with good reason. That is especially true after a week in which Chief Justice twisted himself into a pretzel in order to find a reason to keep ObamaCare operating and his fellow conservative Justice Anthony Kennedy adopted a tone in his gay marriage decision that made him seem more like a pop culture philosopher or advice columnist than a constitutional scholar.

But anyone who tries to alter the composition of the court by extreme measures always loses the argument. The Founders would not recognize the legal reasoning used at times by Roberts, Kennedy, and the four liberals who are always happy to accept their votes to form a majority. But the role of the judiciary in our constitutional system must be respected. Conservatives who start to sound like a latter-day version of those who wanted to impeach former Chief Justice Earl Warren because of his liberal decisions are marginalizing themselves.

Fourth, and most important, defend religious liberty. As many Republicans have learned on the issue of abortion. Attacking what most Americans think is reasonable — legal abortion in the first months of a pregnancy — isn’t a political winner. But seeking to halt late term abortions that strike an equally large majority as akin to infanticide is both reasonable and puts liberals in the position of having to defend the indefensible.

The same principle applies to gay marriage. Stopping gays from marrying is a political loser, but defending the rights of religious institutions, schools, and ordinary citizens to defend their religious principle that demand they either avoid involvement or sanction in such ceremonies is strong ground to defend. As I wrote last week, the court’s willingness to adopt such a broad conclusion about marriage at the Constitution puts believers in peril of being not just outliers but outlaws. Will schools that ban gay relationships or cohabiting or not recognize gay partners be branded as law-breakers and deprived of tax-exempt status? This issue came up in the oral arguments earlier this year before the court, and the statements of Solicitor General Donald Verrilli make it clear that no one and nothing is safe from the long arm of the law when it is arrayed against liberal orthodoxy, even a newly-minted one like that in favor of gay marriage.

The only thing preventing such an outrageous abuse of government power right now is the whim of the president and the Justice Department that could use the court’s decision in any way it likes. The challenge for the GOP is to stake out the moral high ground in which it can seek to limit the ability of big government liberals to bully those who aren’t interfering with the right of gays to marry but don’t wish to be co-opted by it. You don’t have to be opposed to gay marriage to recognize this threat just as you didn’t have to be against contraception to realize that compelling those who opposed it to pay for it against their will was an affront to religious freedom.

If conservatives stick to these principles, they may not be able to reverse something that most of their fellow citizens back. But they will limit the damage, both to the law and to their political chances in 2016.

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Religious Freedom Can’t Depend on a Whim

The U.S. Supreme Court will likely hand down a ruling in the coming days on whether state bans on same-sex marriage are unconstitutional. If, as expected, the court rules that there is a right to same-sex marriage, then this event will be rightly seen as a benchmark in the country’s legal and cultural history. The result will mark society’s full acceptance of gays rather than seeing them as a minority to be tolerated. Indeed, the culture has changed so much on this point that it is likely that a same-sex marriage decision will be seen as the court merely catching up with the times rather than it being a pacesetter. But the possible implications of such a decision reach beyond the question of allowing gay and lesbian couples to be married by the state. As the Court discussed during oral arguments in this case, a religious institution or school that was doctrinally opposed to same-sex marriage and forbade such living arrangements for their students and faculty, it might lose their tax-exempt status because of what would be seen as morally equivalent to racist codes. If so, and there is very good reason to think that it will be an issue, then what we are about to embark upon as a society is not just an era of acceptance for gays that the vast majority of Americans supports but also one of intolerance for religious conservatives.

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The U.S. Supreme Court will likely hand down a ruling in the coming days on whether state bans on same-sex marriage are unconstitutional. If, as expected, the court rules that there is a right to same-sex marriage, then this event will be rightly seen as a benchmark in the country’s legal and cultural history. The result will mark society’s full acceptance of gays rather than seeing them as a minority to be tolerated. Indeed, the culture has changed so much on this point that it is likely that a same-sex marriage decision will be seen as the court merely catching up with the times rather than it being a pacesetter. But the possible implications of such a decision reach beyond the question of allowing gay and lesbian couples to be married by the state. As the Court discussed during oral arguments in this case, a religious institution or school that was doctrinally opposed to same-sex marriage and forbade such living arrangements for their students and faculty, it might lose their tax-exempt status because of what would be seen as morally equivalent to racist codes. If so, and there is very good reason to think that it will be an issue, then what we are about to embark upon as a society is not just an era of acceptance for gays that the vast majority of Americans supports but also one of intolerance for religious conservatives.

As the New York Times reports, liberal legal scholars were extremely displeased with Solicitor General Donald Verrilli’s answer when Justice Samuel Alito posed the following question to him:

“In the Bob Jones case,” Justice Samuel A. Alito Jr. said, referring to the 1983 Supreme Court decision, “the court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?”

Solicitor General Donald B. Verrilli Jr., representing the Obama administration, said that was possible. “I don’t think I can answer that question without knowing more specifics,” he said, “but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is going to be an issue.”

Yes, it is, and it is not one that liberals are comfortable answering honestly at the moment. One response tried at one and the same time to quiet such concerns while also highlighting the rather sketchy notion of religious freedom that underlies liberal discourse on the issue:

Douglas Laycock, a law professor at the University of Virginia, said Mr. Verrilli’s response to Justice Alito was ill-considered. “Church leaders are worried about this,” he said, particularly because “there is a certain obvious logic” to Justice Alito’s question.

But he added that it was unimaginable that any administration of either party would try to deny a tax exemption anytime soon to a religious institution based on its views on homosexuality. “When gay rights looks like race does today, where you have a handful of crackpots still resisting,” he said, “you might see an administration picking a fight.”

Religious institutions shouldn’t be calmed by such a prediction. It may be that even the Obama administration would not seek to lift the tax-exempt status of Catholic, Mormon, evangelical or even Orthodox Jewish institutions over their rules about gay relationships. But that is merely a momentary pause. The furious reaction from the mainstream liberal media to the debate over the Indiana Religious Freedom Restoration Act should have alerted us to the fact that granting legal protection for gay couples to marry wasn’t the sole objective of its advocates. If a religious baker can be hounded out of business because he doesn’t wish to be part of gay wedding, then the time is not far off when respected religious institutions may similarly be labeled as no better than a racist who opposes relations between whites and blacks. If the only thing preventing that is fashion rather than a firm legal principle, then no church, synagogue or mosque, or related school or institution is safe from being proscribed on account of the principles of their faith.

It must be asserted that you don’t have to oppose gay marriage to be deeply concerned about this very real possibility. Indeed, those who wish for a transformation of our society into one in which such marriages are commonplace would do well to seek to ensure that this change is accompanied by legal protections for believers lest gay rights be turned into an inquisition in which the believers are hauled into the dock for their faith.

Can we have gay marriage while also ensuring religious freedom? The answer to that is an obvious yes. Religious freedom statutes must be passed and upheld that will protect the right of believers and their institutions to practice their faith openly without discrimination by a government that now also protects the rights of gays to marry. That is a good argument for RFRA statutes and/or gay marriage laws in the states that will protect both gays and conservative believers. If not, what the Supreme Court will be doing will be to launch is into a bitter culture war in which the freedom of all to believe as they like will be called into question. The right to religious freedom guaranteed by the First Amendment is not supposed to be subject to the whim of the government of the day or even what is considered acceptable to popular culture at any given moment.

Liberals scoff when conservatives say religious freedom is in peril, but the far-reaching nature of a potential court decision on gay marriage illustrates that this is no far-fetched scenario. We are approaching the moment when a great many religious institutions are going to be forced to choose between their faith and the need for government aid or relief from taxes. That is a question no American faith, no matter how out of touch it may be with the zeitgeist, should ever be forced to answer.

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Rubio’s Warning on Faith Wasn’t a Gaffe

As far as the many on the left are concerned, Senator Marco Rubio’s comments about the possible implications of the acceptance of gay marriage makes more opposition research about the 2016 Republican presidential contender unnecessary. By telling an interviewer for the Christian Broadcast Network that he believed that “we are at the water’s edge of the argument that mainstream Christian teaching is hate speech,” he supplied liberals with the sort of fodder they used to confirm their stereotypes about rabid, scare-mongering conservatives. If Rubio becomes the Republican nominee, expect this quote to be constantly thrown in his face as confirmation of his bigotry against gays. But while no one can halt the left-wing hate machine from operating in this fashion, it’s important to state now before the quote becomes the stuff of left-wing legend, that not only was it not a gaffe, it was a reasonable statement of fact that serious people on the left, as well as the right, should ponder in its entirely.

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As far as the many on the left are concerned, Senator Marco Rubio’s comments about the possible implications of the acceptance of gay marriage makes more opposition research about the 2016 Republican presidential contender unnecessary. By telling an interviewer for the Christian Broadcast Network that he believed that “we are at the water’s edge of the argument that mainstream Christian teaching is hate speech,” he supplied liberals with the sort of fodder they used to confirm their stereotypes about rabid, scare-mongering conservatives. If Rubio becomes the Republican nominee, expect this quote to be constantly thrown in his face as confirmation of his bigotry against gays. But while no one can halt the left-wing hate machine from operating in this fashion, it’s important to state now before the quote becomes the stuff of left-wing legend, that not only was it not a gaffe, it was a reasonable statement of fact that serious people on the left, as well as the right, should ponder in its entirely.

Let’s start by conceding, as Rubio clearly does, that the culture of the country has shifted on gay marriage. Where only a few years ago, even liberal Democrats like Barack Obama and Hillary Clinton were opposing it, now acceptance of it is on its way to becoming close to a consensus issue. But the question Rubio raises is not a frivolous one or scaremongering.

As we saw with the massive overreaction to the debate over Indiana’s passage of its own version of the federal Religious Freedom Restoration Act, the culture shift did not stop at mere approval of gay marriages. The opprobrium being hurled at isolated individual store owners who state their religious-based opposition to the concept even if they are willing to provide service and courtesy to those with whom they disagree, is a dangerous sign. We have gone in almost a blink of an eye from such views being mainstream to them being marginalized.

That isn’t the problem. The problem is if those who stick to their religious beliefs about social issues stop being treated as a minority whose views deserve respect to one in which they are, as Rubio says, being treated as no longer deserving legal protection.

As we saw with the debate over the Hobby Lobby case, one didn’t have to agree with opponents of birth control or abortion-inducing drugs to realize that when we compel people to subsidize practices that violate their beliefs we are promoting a new cribbed view of the First Amendment that undermines the concept of religious liberty. If such views are only permissible inside a church or the home but no longer in the public square, then what we will only have is liberty for religious beliefs that are popular and none for those that are not.

Critics of Rubio mock his fears by pointing to the fact that Massachusetts has had gay marriage for years without anyone shutting down Catholic churches in the Bay state. That’s true, but Catholic charities have been driven out of adoption services. If we get to the point where clergy that will not perform gay marriages are viewed as practicing discrimination — something that is no longer unimaginable — then faiths that dissent on the practice will begin to be subjected to the sort of official discrimination that will give the lie to any talk of live and let live.

It would be wrong for anyone to pretend that we are at such a point now. Indeed, as Santorum noted, we are at “the water’s edge” of viewing such traditional beliefs as beyond the pale, is a reasoned debate by which we can accept the will of the majority on gay marriage while leaving room in the public square for those who believe this contradicts their faith and values.

Is that possible? To judge by the mob mentality that forced Brendan Eich out of his CEO job at Mozilla and the way Indiana was ostracized after its RFRA was passed, maybe not. Liberals don’t want to just win the culture war, as their treatment of stray Christian bakers and photographers who dissent on gay marriage indicates, they are not interested in taking prisoners.

That’s a trend that should scare all people of faith, as well as those who do not believe. Though Rubio will take a beating on this from the left and be cheered by social conservatives, his thoughtful and unprejudiced approach to the issue actually stands up to scrutiny in a way that ought to serve to start a productive discussion about how intolerance can come from the left as easily as the right. The illiberal and nature of the attack on religious conservatives ought to give pause to many on the left who once rightly condemned the marginalization of those on their side of such issues. Perhaps by demonstrating, at least to those who are willing to listen rather than merely engage in ad hominem attacks, that this is about freedom rather than bigotry, the senator has given us a chance to have a reasonable discussion about an issue on which tolerance and reason has always been in short supply.

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The Left Frets: What If the Supreme Court Recognizes the Dignity of Christians?

A nagging question I’ve had while watching local businesses sued into oblivion for the Christian thoughtcrimes of their proprietors is: What will it take for liberals to finally have second thoughts about the way in which gay marriage is being legalized? Few dispute that it will be fully legalized, and probably soon, and probably by the Supreme Court. But would liberals, once assured of total victory, have any pangs of conscience about salting the earth behind them? No, it turns out–but we have finally discovered something that makes them nervous about the recognition of a right to same-sex marriage: the possibility that conservatives, especially Christians, might somehow benefit as well.

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A nagging question I’ve had while watching local businesses sued into oblivion for the Christian thoughtcrimes of their proprietors is: What will it take for liberals to finally have second thoughts about the way in which gay marriage is being legalized? Few dispute that it will be fully legalized, and probably soon, and probably by the Supreme Court. But would liberals, once assured of total victory, have any pangs of conscience about salting the earth behind them? No, it turns out–but we have finally discovered something that makes them nervous about the recognition of a right to same-sex marriage: the possibility that conservatives, especially Christians, might somehow benefit as well.

Along those lines, there is something deeply disturbing about Jeffrey Rosen’s otherwise insightful piece in the Atlantic on how the justices during oral arguments this week seemed supportive of the idea of there being a right to dignity, and that this dignity is being withheld from gay couples seeking to marry. It’s a smart essay in many ways, since Rosen picks up on something not many supporters of same-sex marriage pay attention to: the importance of the method and the reasoning by which gay marriage is ultimately recognized by the state.

Most supporters of gay marriage have held to an any-means-necessary outlook. Rather than trying to convince the rest of the public to catch up to the sudden majority in favor of gay marriage, they have been using mob McCarthyism to ruin the lives of those with whom they disagree, while also pressing the courts for a gay-marriage version of Roe v. Wade; that is, a court decision that would hand the left a victory but guarantee the issue would be polarizing and its adoption nondemocratic.

Gay marriage itself is on course for overwhelming acceptance. The only question is whether its legal establishment will be the beginning or the end of it as a contentious political issue. Liberals prefer it to be the beginning of a long fight.

That might not seem to matter all that much, but in fact it matters a great deal to the minority who oppose gay marriage. Were liberals to pursue the establishment of gay marriage in such a way as to prevent a Roe situation and thus end an acrimonious process, they would be incentivizing opponents to cooperate in their own ideological or religious defeat. But if religious Americans are made to understand that this is only the beginning of the fight, then they would be hugely mistaken to acquiesce. The message from the left is that once their premise is accepted, dissenting voices will be rooted out ruthlessly and with the full force of the state behind the witch hunt.

Which brings us to what is finally making the left nervous: any ruling that would legalize gay marriage but would also curb their ability to carry out those witch hunts. Rosen discusses potential swing justice Anthony Kennedy’s attachment to the dignity of the those before the court:

Justice Kennedy invoked the word “dignity” five times in the oral arguments; and other lawyers invoked it 16 times. It was central to the opening statements of Solicitor General Don Verrilli. “The opportunity to marry is integral to human dignity,” he began. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.” It was also one of the first words uttered by the plaintiff’s lawyer, Mary L. Bonuato. “If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class,” she said, “the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”

Rosen gives us some jurisprudential and historical context on dignity, and concedes “the indignity and stigma that bans on same sex marriage impose on the right of LGBT citizens to define their own identities and to claim the benefits of equal citizenship.” But, he cautions, “constitutionalizing that injury with broad abstractions like dignity may lead to results in the future that liberals come to regret.”

Why might that be the case? Because of the dystopian future this could create: what if the courts decide that–gasp–conservatives also have dignity? Imagine the terrifying world in which conservatives are treated with dignity:

If dignity is defined so elastically, then conservatives (sic) judges might invoke it to strike down not only gun-control laws, but also other progressive legislation. Libertarian groups invoked the “sweet-mystery-of-life” my (sic) language in Casey to argue that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance. In the future, cigarette smokers might argue that anti-smoking bans violate their ability to create an individual identity. And conservative Christian wedding photographers could claim that anti-discrimination laws compelling them to photograph gay weddings violate their dignity and ability to define themselves as conservative Christians.

And there it is. If the court recognizes a right to dignity, liberals will be forced to reckon with a situation in which conservative Christians are equal under the law. And that means they have dignity too.

To judge by the reaction, this might be a step too far for the left. But it’s instructive nonetheless because Rosen’s piece grapples with what happens when the winning team sets precedent: with great power comes great responsibility. Liberals may want to argue that people have a right to be treated with dignity by the state, and therefore gay couples’ right to marry should be anchored in constitutional law. But how comfortable are they with the idea that Christians are people too?

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Liberal Thought Police Bully Gay Conservative

Liberals have transformed the debate about gay marriage in recent years from one about the definition of marriage to one about intolerance. That shift seems to have won general acceptance throughout the country and even the courts. But as we saw in the forced resignation of the CEO of Mozilla for his contribution to California’s Proposition 8 campaign and in the reaction to the passage of a Religious Freedom Restoration Act in Indiana, the cutting edge of the issue now is not so much to rally support for a cause that has already won its case in the court of public opinion but to silence opponents. The latest example of the left’s impulse to mob rule comes in an even more ironic form. A gay businessman who hosted an event for Senator Ted Cruz has been so abused by fellow gays and other liberals for the crime of allowing a conservative presidential candidate a hearing at his home that he has now been forced to publicly abase himself and apologize lest the hotels he owns be boycotted by the same gay community to which he caters. Once again, despite their claims that religious conservatives seek to persecute them, the only people being bullied or silenced on this issue lately are the few who dare to either question the newly minted liberal consensus about gay marriage or even offer a platform to those who do.

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Liberals have transformed the debate about gay marriage in recent years from one about the definition of marriage to one about intolerance. That shift seems to have won general acceptance throughout the country and even the courts. But as we saw in the forced resignation of the CEO of Mozilla for his contribution to California’s Proposition 8 campaign and in the reaction to the passage of a Religious Freedom Restoration Act in Indiana, the cutting edge of the issue now is not so much to rally support for a cause that has already won its case in the court of public opinion but to silence opponents. The latest example of the left’s impulse to mob rule comes in an even more ironic form. A gay businessman who hosted an event for Senator Ted Cruz has been so abused by fellow gays and other liberals for the crime of allowing a conservative presidential candidate a hearing at his home that he has now been forced to publicly abase himself and apologize lest the hotels he owns be boycotted by the same gay community to which he caters. Once again, despite their claims that religious conservatives seek to persecute them, the only people being bullied or silenced on this issue lately are the few who dare to either question the newly minted liberal consensus about gay marriage or even offer a platform to those who do.

The statement issued by Ian Reisner in an effort to get the gay community to call of the dogs on their boycott effort reads like something a victim of a Communist regime’s “reeducation” labor camp might be forced to recite. According to the New York Times Reisner issued the following statement:

I am shaken to my bones by the e-mails, texts, postings and phone calls of the past few days. I made a terrible mistake.”

I was ignorant, naive and much too quick in accepting a request to co-host a dinner with Cruz at my home without taking the time to completely understand all of his positions on gay rights.

I’ve spent the past 24 hours reviewing videos of Cruz’ statements on gay marriage and I am shocked and angry. I sincerely apologize for hurting the gay community and so many of our friends, family, allies, customers and employees. I will try my best to make up for my poor judgment. Again, I am deeply sorry.

Reisner is apparently a conservative on issues other than gay marriage and seems to have thought Cruz’s economic and foreign-policy stands amenable to his worldview. In particular, the hotelier is a big supporter of Israel, which happens to be one of the most gay-friendly countries in the world. But the Texas senator’s belief that states should be allowed to make up his or her own minds about allowing gay marriage and his evangelical beliefs place him beyond the pale for liberal gays. Thus, to the liberal thought police, anyone who hosts Cruz or presumably anyone who holds opinions or religious convictions that were shared by both President Obama or Hillary Clinton only a couple of years ago must be publicly humiliated and forced to recant lest they be exposed to economic boycotts.

You don’t have to oppose gay marriage to be disgusted by this incident.

Gays have every right to express their views about Cruz or anyone else. But their point is not just to pursue their campaign for gay marriage but to silence opponents. The bullying of Reisner is an attempt to send a message to gays and others than no other issue, not the future of the country’s economy or the security of Israel, can be allowed to interfere with efforts to not just defeat religious conservative efforts to oppose gay marriage but also to make it impossible for anyone to try to defend their own views about the issue.

Whether or not you agree with Cruz, the spectacle of Reisner’s apology for daring to think he could back a candidate in spite of their differences on gay marriage bodes ill for any effort to preserve a tone of civility in our political culture. Indeed, his statement seems to bear a greater resemblance to a victim of the Spanish Inquisition issuing a ritual recantation of heresy in order to avoid being burned at the stake.

The irony of so-called liberals, who routinely denounce conservatives for being both intolerant and debasing the political culture with incivility, orchestrating such an intolerant and undemocratic response to an individual’s behavior is lost on the left. Free speech for me but not for thee is now liberal orthodoxy. So, too, is their effort to shame anyone who doesn’t agree with them on gay marriage or even associates with anyone who dissents. As we saw with Mozilla and Indiana, mob rule is ugly but often effective, especially in the corporate world. That may comfort some gays, but it should cause all of us, whether we are gay or straight, religious or irreligious, who support democracy to tremble.

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Dress Codes and the Naked Public Square

In some ways, the left’s overt hostility to religious liberty, as evidenced by the mob-shaming of defenders of basic and once-bipartisan religious freedom protections, is less dangerous than the erosions of liberty that fly under the radar. These usually take the form of advocating for freedom, though it’s an Orwellian game all the more disconcerting for its effectiveness, as evidenced by two recent stories–one on dress codes and the other on the unseen battles of the gay marriage debate.

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In some ways, the left’s overt hostility to religious liberty, as evidenced by the mob-shaming of defenders of basic and once-bipartisan religious freedom protections, is less dangerous than the erosions of liberty that fly under the radar. These usually take the form of advocating for freedom, though it’s an Orwellian game all the more disconcerting for its effectiveness, as evidenced by two recent stories–one on dress codes and the other on the unseen battles of the gay marriage debate.

Over at National Review, Katherine Timpf notes the latest in an ongoing story: the attempt to label school dress codes as part of “rape culture.” This particular incident has to do with a female student at Orangefield County High School in California who was sent home for wearing a shirt over knee-length leggings. But the issue isn’t new, and the branding of dress codes as “rape culture,” as strange as it may sound, is fairly mainstream in American liberalism today.

The idea is that it’s wrong to tell girls to dress in ways that would be less distracting to boys because teenage boys should just keep their eyes on the blackboard. (Teenage boys being famous for their studious self-control in the name of overthrowing an oppressive patriarchal order.) But of course, as Timpf writes, it doesn’t have to be an either/or proposition: you can tell girls to dress appropriately while also telling boys to be respectful. (And, by the way, you should tell boys to be respectful.) Additionally, condemning dress codes as stigmatizing is one thing; blaming them for sexual violence is quite another.

And yet the left has made this leap. In 2013, a blog at the Center for American Progress’s ThinkProgress included the following paragraph:

When most Americans think about “rape culture,” they may think about the Steubenville boys’ defense arguing that an unconscious girl consented to her sexual assault because she “didn’t say no,” the school administrators who choose to protect their star athletes over those boys’ rape victims, or the bullying that led multiple victims of sexual assault to take their own lives. While those incidences of victim-blaming are certainly symptoms of a deeply-rooted rape culture in this country, they’re not the only examples of this dynamic at play. Rape culture is also evident in the attitudes that lead school administrators to treat young girls’ bodies as inherently “distracting” to the boys who simply can’t control themselves. That approach to gender roles simply encourages our youth to assume that sexual crimes must have something to do with women’s “suggestive” clothes or behavior, rather than teaching them that every individual is responsible for respecting others’ bodily autonomy.

Notice how the authors have to guide you gently away from reality. When you think of rape, the authors allow, you probably tend to think of rape. But have you considered thinking of things that are not rape, instead?

The more disquieting part of all this is this sentence: “Rape culture is also evident in the attitudes that lead school administrators to treat young girls’ bodies as inherently ‘distracting’ to the boys who simply can’t control themselves.”

And what attitudes recognize–sorry, just assume–that boys can be distracted by girls? Well, for one, religious belief. I attended Jewish schools that not only enforced dress codes but also educated boys and girls in separate classrooms. This is in part because, apparently unlike the Center for American Progress, my school administrators had met teenage boys. But it’s also because modesty in dress is part and parcel of a respectful religious atmosphere that recognizes and channels human nature instead of ignoring it.

But the truth is it doesn’t really matter as long as educational institutions can just go their own way. What the left is trying to do with the “rape culture” allegation is to drive those on the wrong end of the false accusation from polite society. Practicing observant Judaism is, according to the left, perpetuating “rape culture.”

The other troubling story is yesterday’s New York Times article on the fear that now governs the public actions of those opposed to same-sex marriage legalization. The left has come a long way from (correctly) pointing out that terrorism-related detainees at Gitmo deserve legal representation just like any other defendant:

Leading law firms are willing to represent tobacco companies accused of lying about their deadly products, factories that spew pollution, and corporations said to be complicit in torture and murder abroad. But standing up for traditional marriage has turned out to be too much for the elite bar. The arguments have been left to members of lower-profile firms.

In dozens of interviews, lawyers and law professors said the imbalance in legal firepower in the same-sex marriage cases resulted from a conviction among many lawyers that opposition to such unions is bigotry akin to racism. But there were economic calculations, too. Law firms that defend traditional marriage may lose clients and find themselves at a disadvantage in hiring new lawyers.

John Adams defended the British soldiers accused of massacring colonists. But now defending the position held by, among others, Barack Obama just a few years ago is untenable for a major law firm. Again, we’re not even talking necessarily about actually opposing gay marriage in principle. We’re talking about providing legal representation to those who hold that view.

There will be lawsuits stemming from the legalization of gay marriage because religious institutions will want to at least go on practicing their religion in private. But there’s no such thing, anymore. A church or a synagogue or a mosque will be ostracized just as will their legal representation. And traditional religions will be equated with the promotion or enabling of rape.

The future of the public square is bleak.

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Mob McCarthyism, Zaiavleniia, and the Corrosive Culture of Denunciation

Given the lazy, ignorant, and hostile reporting on Indiana’s religious-freedom law, we are left to wonder: Is there any conceivable situation in which the press would portray conservative Americans as anything other than the aggressor? Politico today reports “Conservatives go on the attack in religious freedom debate,” as if the story of the day –a story that should bring great shame to any culture capable of it–weren’t that a small-town Indiana pizza shop’s owners were harassed, threatened, and bullied until they closed for the crime of answering an asinine reporter’s hypothetical about catering a gay wedding. But at least the campaign of hate aimed at those the left considers thought criminals tells us something important about the role of law in the culture wars: minimal.

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Given the lazy, ignorant, and hostile reporting on Indiana’s religious-freedom law, we are left to wonder: Is there any conceivable situation in which the press would portray conservative Americans as anything other than the aggressor? Politico today reports “Conservatives go on the attack in religious freedom debate,” as if the story of the day –a story that should bring great shame to any culture capable of it–weren’t that a small-town Indiana pizza shop’s owners were harassed, threatened, and bullied until they closed for the crime of answering an asinine reporter’s hypothetical about catering a gay wedding. But at least the campaign of hate aimed at those the left considers thought criminals tells us something important about the role of law in the culture wars: minimal.

The campaign in favor of gay marriage has been remarkably successful, given how quickly opinions have changed. But what’s clear about the issue is that the pro-SSM side left points on the board: they should have been even more successful than they have been. That’s because winning hearts and minds is essential when trying to replace an existing set of social norms. Gay marriage was winning legislation but losing referendum after referendum, showing that while the momentum was on their side, they still had plenty of convincing to do.

That’s when liberal activists seem to have made a key choice: they decided to stop winning hearts and minds. The fact that they were winning on legislation paradoxically encouraged them to stop focusing on the rule of law as a tool in their campaign. That’s because they understood why they were winning on legislation: mob McCarthyism.

They also figured out that mob McCarthyism could be used not only on politicians who wanted the backing of business leaders and who were sensitive to being labeled a bigot. It could also be turned on their fellow private citizens. And so that’s what they did.

I would like to believe we can say we are seeing where this revolting campaign of violence-tinged demonization and hounding of heretics ends, but I fear what happened to Memories Pizza is only the beginning. In the Internet age, the zombified mob of malevolent lemmings has virtually no limits on its reach. Erick Erickson famously (and correctly) warned that “You will be made to care.” Indeed, and in 2015 you will be made to care by strangers living perhaps thousands of miles away from you. They will find you.

So why win hearts and minds when you can break a couple Christian eggs and get your omelet, all the while setting a public example pour encourager les autres? The answer, one would have hoped, is that it shouldn’t make leftists feel good to ruin people’s lives on a political whim. But apparently it does.

And it doesn’t have all that much to do with the law. It’s true that this latest bout of hysteria was touched off by Indiana passing a state version of a federal religious-protection law signed by Bill Clinton and once upon a time popular across party lines. But then reporters went looking for people to destroy because they might comply with the law, rather than focus exclusively on spooking politicians into going back on their word and throwing men and women of faith under the bus.

And it won’t stop at shutting down pizzerias because it has nothing to do with pizza. It’s about total conformity–or else. Nor will the mob long tolerate abstentions from mob action. In her book on ritual denunciation and mutual suspicion in the early Soviet Union, Inventing the Enemy, Wendy Goldman discusses the use of zaiavleniia, reports to officials on other citizens (emphasis added):

Charges made in zaiavleniia did not have to be substantiated by proof or evidence, and their authors were not even held responsible for their contents. Individual zaiavleniia might thus contain, along with party members’ supposed full revelations about themselves, a generous measure of rumor, gossip, slander, and lies about others. Moreover, whereas there were no penalties for writing a zaiavlenie without evidence, not writing one at all could invite serious consequences. Failure to report the arrest of a relative or to go on record with suspicions about a coworker who was subsequently arrested, for example, was grounds for expulsion from the Party. There was therefore a strong impetus to denounce others, if only to protect oneself against the charge of having failed to denounce them. Local party leaders, once able to exercise some discretion in their investigations, were now forced to investigate every zaiavlenie, no matter how nonsensical or malicious.

Just find someone to denounce. That’s the logical endpoint of the mob. It won’t be enough to simply do as they say. You must ensure others do so as well. Reeducate them.

This is not about passing laws approving of gay marriage or preventing the passage of laws which were uncontroversial a day ago, or an hour ago. In fact, once a degree of success before the law was reached, the law began working against The Cause. The mob thrives on enforcing standards that change on a dime and on a whim. This is emotion and instinct, not a rational program to achieve legislative balance. Rules, at this point, would only hurt The Cause.

And The Cause will change too, which is what makes some supporters of same-sex marriage nervous about a country suddenly ruled by mindless mass vengeance. Surely enough Americans understand the danger here, right?

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Liberals Have Discarded Religious Liberty

There are two ways of looking at the furor that has erupted over the signing into law of a Religious Freedom Restoration Act by the state of Indiana. One is to focus on the fact that this law is a bit different from a federal law of the same name that also has been passed in 19 other states in that its broader language allows claims of religious liberty to be invoked as a defense in civil lawsuits between private parties as well as those involving government action. But for anyone who has been listening to the debate about this law, if the one-sided opprobrium that has been hurled at Indiana in the liberal press can be dignified by such a term, there’s little question that legal debates about the need to balance the rights of individuals to observe the dictates of their consciences with those banning acts of discrimination have been thrown out the window in favor of a rush to anathematize anyone who dares to assert that the right to religious liberty can be viewed as being as important as the right to gay marriage. What we must ask ourselves, as Indiana and Governor Mike Pence are put in the stocks of popular culture and threatened with corporate boycotts, is how exactly are we to defend constitutional principles in an atmosphere in which the facts about the law and its implications are viewed as insignificant when compared to the perceptions of those advocating for the equal treatment on the basis of sexual orientation?

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There are two ways of looking at the furor that has erupted over the signing into law of a Religious Freedom Restoration Act by the state of Indiana. One is to focus on the fact that this law is a bit different from a federal law of the same name that also has been passed in 19 other states in that its broader language allows claims of religious liberty to be invoked as a defense in civil lawsuits between private parties as well as those involving government action. But for anyone who has been listening to the debate about this law, if the one-sided opprobrium that has been hurled at Indiana in the liberal press can be dignified by such a term, there’s little question that legal debates about the need to balance the rights of individuals to observe the dictates of their consciences with those banning acts of discrimination have been thrown out the window in favor of a rush to anathematize anyone who dares to assert that the right to religious liberty can be viewed as being as important as the right to gay marriage. What we must ask ourselves, as Indiana and Governor Mike Pence are put in the stocks of popular culture and threatened with corporate boycotts, is how exactly are we to defend constitutional principles in an atmosphere in which the facts about the law and its implications are viewed as insignificant when compared to the perceptions of those advocating for the equal treatment on the basis of sexual orientation?

Pence looked puzzled yesterday when he attempted to defend the statute on ABC’s This Week yesterday. But merely complaining about what he rightly termed the “misinformation” that has characterized the discussion about the subject isn’t sufficient to understand what has been happening.

It is true that the Indiana law is different from the federal and most other state RFRA versions. The broad nature of the statute, combined with the lack of a state law specifically recognizing gays as a protected class, has led to claims that it will enable discrimination. But this is a slender reed upon which to base such a strong reaction. In fact, this RFRA, like the others, merely requires those seeking to restrict expressions of religious belief to prove that there is a compelling government interest and that, if necessary, it should be done in the least intrusive manner possible.

The focus of those claiming that this is an anti-gay law is the belief that RFRA laws, especially broad ones such as the Indiana statute, might allow bakers or photographers to refuse to offer their services to those planning same-sex marriages. Whether those kinds of services constitute a public accommodation, such as a hotel or a restaurant that should not be allowed to discriminate against any class of persons, or are, instead, activities that are artistic in nature and therefore protected from such charges, is a question that the courts have yet to definitively answer. But no matter the answer to that question, the mere possibility that someone, somewhere might be allowed to harbor negative views about gay marriage because of their religious beliefs is viewed as not merely lamentable but an intolerable offense to public decency.

That is a sign of how abruptly the culture has shifted on the question of gay marriage in the course of the last decade. As a result, as the editors of National Review noted in an insightful editorial, what has happened is an effort to treat private opposition to gay marriage as being somehow analogous to Jim Crow laws that perpetuated the legacy of slavery and racial hatred.

One need not be an opponent of gay marriage to view the backlash against Indiana as an attempt not so much to defend gay rights as it is to coerce and to silence those religious believers who are dissenters from the recent change in public opinion on the issue.

As NR rightly pointed out, ever since the Hobby Lobby case, liberals who were once stalwart defenders of religious liberty against the coercive power of government or the beliefs of the majority have now discovered that there are other values they prize more highly than those rights enshrined in the First Amendment to the Constitution. With Hobby Lobby, the effort to force all employers to pay for abortion drugs and contraception outweighed the rights of individual business owners not to support practices that violated their religious beliefs. Now the mere chance that a RFRA act might allow some Christian bakers, florists, or photographers to abstain from taking part in a gay ceremony is enough to send the media into a frenzy and galvanize an effort to boycott an entire state.

The point here is that at stake in these legal tangles are competing rights that need to be balanced. Even if, as a society, we now believe there is no legal distinction to be drawn between the marriage of a man and a woman and one between two men or two women (but not, interestingly enough, of polygamous marriages), the right of those who wish to marry must be weighed against those who do not wish to participate in such weddings. Those who don’t share their beliefs may deem their refusal foolish or pointless, but religious freedom is privileged in the Constitution. What is frightening about the attack on Indiana is not the belief by some that such refusals are illegal but the willingness of so many in the public square, especially the media, to treat the rights of religious minorities—in this case, conservative Christians—as being unworthy of respect or even a hearing.

It may well be that Indiana will revise their RFRA statute to align it more closely with the federal law championed a generation ago by liberal stalwart Teddy Kennedy and those of other states. But that is unlikely to satisfy opponents who have come to view any defense of the religious liberty of conservatives as incompatible with their view of democracy. The unseemly gang tackle of Pence and the Indiana legislature isn’t so much a demonstration of the way a legal issue can be distorted by popular passion as it is an example of why RFRA laws are so necessary.

When placed against the demands of a majority (even newly-minted majorities such as the one behind gay marriage) the religious freedom of minorities can be trampled even in supposedly enlightened democracies. It is the purpose of the law in a free country to defend the rights of the individual, especially their religious rights, when other government concerns threaten to override them. That is exactly what RFRA statutes do. In their rush to stigmatize opponents of gay marriage, those who call themselves liberals seem to have forgotten that.

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Southern Baptists, Gays, and Talking to Rather than Past Each Other

Southern Baptists are the largest and one of the most conservative denominations in America, and their opposition to homosexuality is well known, rooted primarily (but not exclusively) in several verses in the Hebrew Bible. Yet  something noteworthy happened during a three-day conference in Nashville. As Tamara Audi wrote in a fascinating article for the Wall Street Journal:

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Southern Baptists are the largest and one of the most conservative denominations in America, and their opposition to homosexuality is well known, rooted primarily (but not exclusively) in several verses in the Hebrew Bible. Yet  something noteworthy happened during a three-day conference in Nashville. As Tamara Audi wrote in a fascinating article for the Wall Street Journal:

Southern Baptists and gay-rights supporters had clashed before this week, in print and online, but rarely had direct personal contact.

“Everyone’s talking about each other. We needed to start talking to each other,” said Andrew Walker, director of policy studies for the SBC’s Ethics and Religious Liberty Commission, which hosted the three-day conference.

Though gay-rights advocates and Christians who back same-sex marriage weren’t invited to speak, a small group attended to observe and meet informally with Southern Baptists, including Mr. Walker.

“What’s significant is not the content of the meetings, but that there were meetings at all,” said Justin Lee, executive director of The Gay Christian Network. “It allowed us to humanize one another and form relationships.”

Mr. Walker and more than a dozen Southern Baptists and gay-rights advocates gathered in a suite to have a conversation. The meeting “exceeded both sides’ expectations as far as cheerfulness, friendliness and authenticity of the conversation,” Walker said. “There’s greater respect all around. We disagreed, but we disagreed very well.” The personal meetings “help defy caricature,” he added.

That’s not all. Al Mohler, head of the Southern Baptist Theological Seminary, met last week with Matthew Vines, an openly gay Christian author who argues the Bible doesn’t prohibit lifelong same-sex marriage. “It was a gracious, honest conversation. I think all evangelical Christians are having to learn anew how to discuss these issues,” Mohler said. For his part, Mr. Vines said, “This was an amazing event. Not for the public sessions but for the private meetings. It’s not like anyone is suddenly pro-gay.” He added, “it feels like a new era.”

This is the kind of thing I had in mind when I wrote last week about a close friend who recently told me, “We need to make room for other perspectives. We need to make room for others at the table.” Not necessarily because positions will be reversed, although they might become a bit more nuanced and refined. But because doing so will make us less likely to turn each other into images created by a carnival mirror, in which everything is distorted and exaggerated. It will also make it more likely that we’ll adopt the perspective of our greatest president, Lincoln, who said, “There are few things wholly evil or wholly good. Almost everything, especially of government policy, is an inseparable compound of the two, so that our best judgment of the preponderance between them is continually demanded.”

Al Mohler isn’t going to endorse same-sex marriage and Matthew Vines isn’t going to become a crusader against the gay lifestyle. But I can’t help but think that what’s happening is good for both sides; and good for our nation as well. Steps toward reconciliation usually are.

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The GOP’s Gay Marriage Dilemma

The reaction to yesterday’s U.S. Supreme Court decision not to hear challenges to lower court rulings invalidating gay marriage bans in various states provided some insight on the cultural shift inside the Republican Party. While Senator Ted Cruz blasted the Supremes for allowing the courts to usurp the right to define marriage from the states, the silence from much of the GOP was deafening. While the issue may be important to anyone, like Cruz, who intends to run for the 2016 GOP presidential nomination, much of the rest of the party may be taking the hint from the courts.

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The reaction to yesterday’s U.S. Supreme Court decision not to hear challenges to lower court rulings invalidating gay marriage bans in various states provided some insight on the cultural shift inside the Republican Party. While Senator Ted Cruz blasted the Supremes for allowing the courts to usurp the right to define marriage from the states, the silence from much of the GOP was deafening. While the issue may be important to anyone, like Cruz, who intends to run for the 2016 GOP presidential nomination, much of the rest of the party may be taking the hint from the courts.

Cruz’s willingness to jump out front on the issue is another indication that he intends to add social conservatives to a coalition that already includes Tea Party stalwarts as well as some who are enamored of his strong foreign-policy stands. But while he won’t be the only candidate seeking their votes, it’s not exactly surprising that he didn’t face much competition for airtime about the decision yesterday from leading Republicans. The position of anyone nominated by the party will be support for a definition of marriage as being between one man and one woman. But though support for measures limiting abortions or banning late-term procedures that are seen as akin to infanticide remains strong among most Republican constituencies, the general lack of outrage about gay marriage yesterday outside of social conservative circles can easily be interpreted as indicating that most in the GOP think this is not an issue on which they think most Americans are behind them.

In choosing to punt on the appeals of various lower court decisions invalidating state measures banning gay marriage, the Supreme Court seemed to be saying that they won’t take up this issue again until one of the appeals courts is ready to uphold such laws. But in ruling in favor of gay marriage as a right that states can’t invalidate, lower federal courts are following the high court’s lead. Last year the court both allowed a state court to strike down a California referendum and separately ruled against the federal Defense of Marriage Act’s provision that barred benefits for same sex couples. While the court could have taken up any one of the appeals from states yesterday and handed down a definitive ruling on the issue, it seems to prefer to let the process unfold on a lower level. As it often has during its history, the court is listening to public opinion and what it’s hearing is that most Americans are no longer opposed to gay marriage.

The cultural shift on this issue has been as swift as it has been decisive, but as much as social conservatives are right to complain about the courts usurping the right of the people or the legislatures to make up their own minds on marriage, the polls are following popular culture on this point. Admitting this does not mean social conservatives no longer have support on any of their key issues. Americans remain deeply divided on abortion. But gay marriage is no longer a point on which most are prepared to argue. Indeed, as acceptance of the change grows more widespread with it now available in 30 states, even some conservatives are starting to admit that gays marrying doesn’t really affect them or their families.

The question is whether the Republican Party is ready to follow suit. Senator Rand Paul may currently find himself out of touch with many in his party on foreign and defense policy as the isolationist moment in American politics may be over. But as Greg Sargent noted this weekend in the Washington Post, his less strident tone on marriage may actually be more in tune with popular sentiment among Republicans than many thought.

But the problem for Republicans is that while they will be debating gay marriage, the rest of the country is no longer much interested in the discussion. Indeed, Paul’s argument that perhaps just as Republicans don’t want the government involved in their lives in other respects they might now be better off saying that it should stay out of marriage too may be a lot more popular than his foreign-policy views these days.

Social conservatives and evangelicals remain a key GOP constituency, but even if most Republicans are sympathetic to their concerns, the idea of letting the party get stuck in an argument that no longer resonates for most of the country should alarm them. With the conservative majority on the Supreme Court and the party’s establishment waving the white flag on gay marriage, this is one issue on which social conservatives may have lost all of their key allies.

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Lessons From Hillary’s Bad Week

Hillary Clinton’s decision to try to clear the Democratic presidential field this far out from Election Day was widely viewed as her best chance to win the nomination. The drawback, however, was that she would put herself immediately under the glare of the media she so overtly detests.

But maybe that’s also a benefit. Hillary’s sense of entitlement and combative, defensive, accusatory nature was always going to result in a series of gaffes and missteps. If this week was any indication, Clinton will try to get them all out of the way long before the “official” campaign begins. Perhaps by the time the real campaign rolls around, they will be long forgotten. Clinton can take solace in the fact that the 24-hour news cycle means the two and a half years until the election constitute a lifetime in politics.

But the real question is whether Clinton will learn from these early mistakes or repeat them. On Monday, Clinton was under fire for claiming–absurdly–that she was broke leaving the White House. Her former spokeswoman defended her by explaining that, well, broke is kind of a relative term, especially for a family like the Clintons. Clinton’s mistake here was thinking that Democrats are being honest when they demonize wealth, when in reality they celebrate making money if you’re getting paid to demonize the wealth of others. Lesson learned?

On Tuesday, Clinton dealt with the fallout from her absolutely horrendous answer on her culpability for the tragedy in Benghazi: “I take responsibility, but I was not making security decisions.” The Washington Post’s media writer took note of the disastrous portion of the interview:

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Hillary Clinton’s decision to try to clear the Democratic presidential field this far out from Election Day was widely viewed as her best chance to win the nomination. The drawback, however, was that she would put herself immediately under the glare of the media she so overtly detests.

But maybe that’s also a benefit. Hillary’s sense of entitlement and combative, defensive, accusatory nature was always going to result in a series of gaffes and missteps. If this week was any indication, Clinton will try to get them all out of the way long before the “official” campaign begins. Perhaps by the time the real campaign rolls around, they will be long forgotten. Clinton can take solace in the fact that the 24-hour news cycle means the two and a half years until the election constitute a lifetime in politics.

But the real question is whether Clinton will learn from these early mistakes or repeat them. On Monday, Clinton was under fire for claiming–absurdly–that she was broke leaving the White House. Her former spokeswoman defended her by explaining that, well, broke is kind of a relative term, especially for a family like the Clintons. Clinton’s mistake here was thinking that Democrats are being honest when they demonize wealth, when in reality they celebrate making money if you’re getting paid to demonize the wealth of others. Lesson learned?

On Tuesday, Clinton dealt with the fallout from her absolutely horrendous answer on her culpability for the tragedy in Benghazi: “I take responsibility, but I was not making security decisions.” The Washington Post’s media writer took note of the disastrous portion of the interview:

Another telling moment came when Sawyer placed before Clinton all the warnings that bad things were afoot in Benghazi. “Did you miss it? Did you miss the moment to prevent this from happening?” Sawyer asked. Clinton’s response started with these two words: “No, but …”

The lesson here seems to be that Clinton bought into the left’s idea that Benghazi is a silly controversy and there’s nothing left to answer for. That’s not remotely true, as Diane Sawyer showed when she pressed Clinton to offer more than a canned one-line dismissal and actually answer detailed questions about what went wrong.

Yesterday, Clinton had yet another difficult interview, this one about her flip-flop on gay marriage. When gay marriage was unpopular, Clinton was opposed. Once it was advantageous in a Democratic primary to support it, that’s where she found herself. It’s a reminder that Clinton is a walking focus group. (Her “memoir has the cautious, polished, poll-tested feel of a campaign speech,” complains the Economist.)

Here’s Politico on Clinton’s interview with NPR:

NPR’s Terry Gross was interviewing Clinton about her newly released memoir, “Hard Choices.” She repeatedly asked the former secretary of state whether her opinion on gay marriage had changed, or whether the political dynamics had shifted enough that she could express her opinion.
“I have to say, I think you are being very persistent, but you are playing with my words and playing with what is such an important issue,” Clinton said.

“I’m just trying to clarify so I can understand …” Gross said.

“No, I don’t think you are trying to clarify,” Clinton snapped back. “I think you’re trying to say I used to be opposed and now I’m in favor and I did it for political reasons, and that’s just flat wrong. So let me just state what I feel like you are implying and repudiate it. I have a strong record, I have a great commitment to this issue, and I am proud of what I’ve done and the progress we’re making.”

There’s more, but that’s probably the worst of it. The lesson here would be that it’s OK with Democrats to have flip-flopped on this. They’ll say you “evolved,” as long as you offer some kind of plausible explanation. Clinton doesn’t have to shy away from her hypocrisy, but she has to avoid getting so defensive that she gives the impression she has something to hide.

Will she learn the lessons of her disastrous week, and get the hang of campaigning? The silver lining for Clinton is that regardless of the answer to that question, this week’s missteps are sure to be ancient history in 2016.

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Democrats and the Forever (Culture) War

The latest Washington Post/ABC News poll is quite miserable for Democrats, and party strategists will no doubt mine the data for clues as to how to recover their standing before the midterms. There are two obvious choices: reinforce the party’s strengths–that is, where they best Republicans in the minds of the voters–or seek to improve their numbers on issues weighing them down. Unfortunately for those hoping for a more substantive debate on the issues this fall, the they are likely to choose the former.

That means, in a nutshell: get ready for an aggressive escalation in the “war on women.” Here’s the Post’s summary of the issues that favor Democrats and those that favor Republicans:

Democrats have a significant advantage on eight issues, from health care to climate change to abortion and same-sex marriage. Democrats have a smaller advantage on immigration, and the two parties are roughly equal on the economy. Republicans have the edge on three — guns, the deficit and striking the right balance on which government programs to cut.

Where Democrats have the biggest advantages are on the same contrasts that helped Obama win reelection in 2012 — indicators of which party voters believe is on their side. By 52 to 32 percent, those surveyed say they trust Democrats to do a better job helping the middle class, and by 55 to 25 percent, they trust Democrats on issues that are especially important to women.

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The latest Washington Post/ABC News poll is quite miserable for Democrats, and party strategists will no doubt mine the data for clues as to how to recover their standing before the midterms. There are two obvious choices: reinforce the party’s strengths–that is, where they best Republicans in the minds of the voters–or seek to improve their numbers on issues weighing them down. Unfortunately for those hoping for a more substantive debate on the issues this fall, the they are likely to choose the former.

That means, in a nutshell: get ready for an aggressive escalation in the “war on women.” Here’s the Post’s summary of the issues that favor Democrats and those that favor Republicans:

Democrats have a significant advantage on eight issues, from health care to climate change to abortion and same-sex marriage. Democrats have a smaller advantage on immigration, and the two parties are roughly equal on the economy. Republicans have the edge on three — guns, the deficit and striking the right balance on which government programs to cut.

Where Democrats have the biggest advantages are on the same contrasts that helped Obama win reelection in 2012 — indicators of which party voters believe is on their side. By 52 to 32 percent, those surveyed say they trust Democrats to do a better job helping the middle class, and by 55 to 25 percent, they trust Democrats on issues that are especially important to women.

The Post notes that there isn’t much evidence that such issues could turn the Democrats’ electoral momentum around. They tend to be base issues, but the usual drop in turnout for non-presidential years means Democrats are likely to need a broader coalition. To do that, they would need to make headway on ObamaCare. The Post details the split on the left on how to do that, shining some light the fact that the Obama White House might be a more significant obstacle for them than Republicans:

The Affordable Care Act is expected to be a major issue in the midterm elections. Obama recently urged Democrats to defend the law energetically, particularly after the administration announced that 8 million people signed up for it during the initial enrollment period. …

A number of Democratic strategists are urging their candidates to campaign on a message that calls for continued implementation of the law, with some fixes. These strategists say that message is more popular than the “repeal and replace” theme of the Republicans.

Democrats want to be able to offer legislative fixes to ObamaCare. This is perfectly logical; even if Republicans are correct about all the damage the law is doing, it’s easy to see why an argument that rolling “fixes” to correct the immediate ObamaCare-caused crises would appeal to those currently experiencing those crises. Republicans in Congress are amenable to this, having supported legislation to unburden the public with some of the more damaging aspects of ObamaCare.

But Obama doesn’t want such legislative fixes, for two reasons. First, he’s not exactly Mr. Humility. He tends, instead, to live in a bubble and simply ignore the facts that conflict with his ideological inflexibility. He prefers “the debate is over” and “the Affordable Care Act is working” to something more nuanced and self-critical. Second, the changes he does make to ObamaCare are done quietly (see reason No. 1) and lawlessly, by executive discretion. He doesn’t see a reason to pass new legislation when he’s ignoring the legislation it’s built on. You have to admit, there’s a certain calculated rationality to it.

But Democrats are united on the “war on women” they’ve invented, and will thus seek new ways to press this delusion. At times, this produces some unintentional comedy, as when male Democrats use this playbook against female Republicans. Male Democrats running on the “women hate women” platform are probably going to struggle to connect to any voters not already in their camp. One example of this was Michigan Democrat Gary Peters, who is running against Terri Lynn Land. Land’s response was priceless, and appropriate.

More broadly, Democrats use the “war on women” construct to argue for unlimited abortion, one of the more divisive social issues of the day. And the Post notes they possess an advantage on the issue of gay marriage, which, along with the Obama administration’s insistence on taxpayer funded birth control, has become a centerpiece of the left’s efforts to punish thought-outliers and erode religious liberty. If the Democrats are going to double down on their perceived strengths for the midterms, that will likely mean firing many more shots in the culture war. And with the party prepared to anoint Hillary Clinton two years later, don’t expect it to let up any time soon.

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An Impressive Stand on Behalf of Liberal Ideals by Gay Marriage Advocates

A group of prominent advocates for same-sex marriage signed a statement arguing for both the freedom to marry and the freedom to dissent.

This statement comes in the aftermath of the forced resignation of the CEO of Mozilla, Brendan Eich, because of a donation he made in 2008 on behalf of California’s Proposition 8, which would have upheld the traditional definition of marriage. The statement points out that there is no evidence that Mr. Eich believed in or practiced any form of discrimination against Mozilla’s LGBT employees. No matter; he was still forced out.

This action signaled “an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree,” according to the statement. “We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.”

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A group of prominent advocates for same-sex marriage signed a statement arguing for both the freedom to marry and the freedom to dissent.

This statement comes in the aftermath of the forced resignation of the CEO of Mozilla, Brendan Eich, because of a donation he made in 2008 on behalf of California’s Proposition 8, which would have upheld the traditional definition of marriage. The statement points out that there is no evidence that Mr. Eich believed in or practiced any form of discrimination against Mozilla’s LGBT employees. No matter; he was still forced out.

This action signaled “an eagerness by some supporters of same-sex marriage to punish rather than to criticize or to persuade those who disagree,” according to the statement. “We reject that deeply illiberal impulse, which is both wrong in principle and poor as politics.”

The statement went on to point out that diversity is the natural consequence of liberty, saying:

Much of the rhetoric that emerged in the wake of the Eich incident showed a worrisome turn toward intolerance and puritanism among some supporters of gay equality—not in terms of formal legal sanction, to be sure, but in terms of abandonment of the core liberal values of debate and diversity.

Sustaining a liberal society demands a culture that welcomes robust debate, vigorous political advocacy, and a decent respect for differing opinions. People must be allowed to be wrong in order to continually test what is right. We should criticize opposing views, not punish or suppress them.

The declaration goes on to invoke the memory of Franklin Kameny, one of America’s earliest gay-rights proponents, who lost his job in 1957 because he was gay. We’re now living in a time when those who oppose gay marriage are being fired.

Neither situation–firing people because they are gay or firing people because they oppose gay marriage–is right; and the efforts by the signatories of this letter to stand up for classical liberal ideals and push back against those with whom they agree on the matter of gay marriage is admirable and important.

As I wrote about before on this matter, “When the dust finally settles, we still have to live together … Surely treating others with a certain degree of dignity and respect shouldn’t be too much to ask of those who oppose gay marriage and those who support it.”

The signatories of the statement have done their part, and I for one am grateful to them for having done so. 

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When Does a Once Widely Held Opinion on a Public Issue Become Unacceptable?

The uproar over the forced resignation of Brendan Eich at Mozilla last week (see Jonathan’s excellent post from yesterday) is certainly called for. After all, Eich’s transgression was to make a donation in support of a state constitutional proposition that ended up passing with 53 percent of the vote. In other words, he agreed with the majority of California voters and donated a modest sum to the cause. But a mere six years later, he has been pronounced a moral leper for having held such an outrageous and unacceptable view. It’s no more than the same view that was held by Barack Obama and Hillary Clinton in 2008.

I can think of no other major change in American society that has moved as swiftly as gay marriage. In 1960 it was, almost literally, unthinkable. The Stonewall Inn riot in New York in 1969 put gay rights on the political map, but gay marriage was not among the rights being demanded. By 1990 gay marriage was thinkable, but nowhere legal. Then in 2003, the Massachusetts Supreme Judicial Court legalized gay marriage in that state. In 2007, the Stonewall Inn was designated a National Historic Landmark. Today, gay marriage is legal in sixteen states and spreading rapidly to others. Because approval of gay marriage is strongly inversely correlated with age, it is as clear as anything in the future can be that gay marriage will be countrywide in the not distant future.

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The uproar over the forced resignation of Brendan Eich at Mozilla last week (see Jonathan’s excellent post from yesterday) is certainly called for. After all, Eich’s transgression was to make a donation in support of a state constitutional proposition that ended up passing with 53 percent of the vote. In other words, he agreed with the majority of California voters and donated a modest sum to the cause. But a mere six years later, he has been pronounced a moral leper for having held such an outrageous and unacceptable view. It’s no more than the same view that was held by Barack Obama and Hillary Clinton in 2008.

I can think of no other major change in American society that has moved as swiftly as gay marriage. In 1960 it was, almost literally, unthinkable. The Stonewall Inn riot in New York in 1969 put gay rights on the political map, but gay marriage was not among the rights being demanded. By 1990 gay marriage was thinkable, but nowhere legal. Then in 2003, the Massachusetts Supreme Judicial Court legalized gay marriage in that state. In 2007, the Stonewall Inn was designated a National Historic Landmark. Today, gay marriage is legal in sixteen states and spreading rapidly to others. Because approval of gay marriage is strongly inversely correlated with age, it is as clear as anything in the future can be that gay marriage will be countrywide in the not distant future.

I imagine that by 2030, gay marriage will be about as controversial as women’s suffrage is today. But women’s suffrage took 100 years to go from a glimmer in the eyes of its first advocates to a constitutionally mandated right. Slavery took nearly 200 years from the first objections to it among 17th century Quakers to its final abolition in this country. One can see the slow evolution of thought on the morality of slavery in the life of Benjamin Franklin. In the 1730s Franklin owned a couple of slaves who worked in his printing house. In the 1750s he wrote a famous essay on the economic inefficiency of slavery. By 1785 he was president of the Pennsylvania Abolition Society. Still it took another 80 years, and a war that cost 600,000 lives, before slavery was finally gone.

Both women’s suffrage and slavery were highly controversial issues in their day and honest men and women could be found on both sides. (Queen Victoria, for instance, was adamantly against votes for women.) Today, of course, the arguments of the losing sides of these issues seem silly and, often, downright evil.

But we are more than 90 years since the argument over women’s suffrage ended and nearly 150 since slavery was abolished. The issues are both dead and gone. It seems to me that only two years after Barack Obama himself “evolved” on the issue of gay marriage (please note: Democrats evolve on issues, Republicans flip flop) is much too soon for opponents of the idea to be cast into outer darkness.

But, then, liberals—addicted to their sense of moral superiority—are notoriously intolerant of dissenting views.

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Mozilla Has Rights. Just Like Hobby Lobby.

The forced resignation of Mozilla CEO Brandon Eich over his support for an anti-gay marriage referendum continued to provoke bitter debate over the weekend. After an initial burst of revulsion even from liberal pundits like Andrew Sullivan over the purge of a businessman from a company over his political beliefs by pro-gay thought police, many on the left have recovered their bearings and are reminding themselves that freedom of speech for me but not for thee has always been their guiding principle. Though some are a bit shame-faced to do so, some liberals have decided that punishing individuals for their personal politics is OK because those who hold opinions contrary to their own are not only wrong but so hateful that their mere presence undermines the efforts of those associated with them.

That this is rank hypocrisy is so obvious that it barely needs to be said. If, say, a liberal business executive were to be ousted from a similar position at a Fortune 500 company because a lot of the shareholders or executives at the business didn’t like the fact that he or she was a supporter of gay marriage or had donated to prominent liberal candidates for office, you can bet your stock portfolio and your mortgage payment that the mainstream media and every left-wing pundit in creation would be anointing such a person for sainthood rather than twisting themselves into pretzels in order to justify Eich’s defenestration, as so many have already done.

But in doing so, some on the left have, albeit unwittingly, stumbled into some truths about First Amendment rights that undermine their positions on an important case under consideration at the U.S. Supreme Court.

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The forced resignation of Mozilla CEO Brandon Eich over his support for an anti-gay marriage referendum continued to provoke bitter debate over the weekend. After an initial burst of revulsion even from liberal pundits like Andrew Sullivan over the purge of a businessman from a company over his political beliefs by pro-gay thought police, many on the left have recovered their bearings and are reminding themselves that freedom of speech for me but not for thee has always been their guiding principle. Though some are a bit shame-faced to do so, some liberals have decided that punishing individuals for their personal politics is OK because those who hold opinions contrary to their own are not only wrong but so hateful that their mere presence undermines the efforts of those associated with them.

That this is rank hypocrisy is so obvious that it barely needs to be said. If, say, a liberal business executive were to be ousted from a similar position at a Fortune 500 company because a lot of the shareholders or executives at the business didn’t like the fact that he or she was a supporter of gay marriage or had donated to prominent liberal candidates for office, you can bet your stock portfolio and your mortgage payment that the mainstream media and every left-wing pundit in creation would be anointing such a person for sainthood rather than twisting themselves into pretzels in order to justify Eich’s defenestration, as so many have already done.

But in doing so, some on the left have, albeit unwittingly, stumbled into some truths about First Amendment rights that undermine their positions on an important case under consideration at the U.S. Supreme Court.

Some, like the Guardian’s Mary Hamilton, rightly point out that the First Amendment doesn’t entitle Eich to a job at Mozilla. That is true, and I don’t believe any serious conservative critic of the Mozilla lynch mob has said any different. Mozilla and any other company have a perfect right to hire or fire anyone they like. Anti-discrimination laws don’t require liberals to hire conservatives or vice versa even though injecting political litmus tests into job searches are not conducive to hiring the best people. But when New York Times columnist Farhad Manjoo wrote that Eich had to be ousted from his position because Mozilla isn’t an ordinary company, that should have unsettled some on the left who have been mocking the idea that corporations have First Amendment rights. If Mozilla should be able to fire Eich because of his politics, how can liberals also argue with a straight face that Hobby Lobby should have to pay for abortion drugs?

The upshot of Manjoo’s piece was to say that rather than a soulless instrument of the technology business, Mozilla is a unique sort of company with a raison d’être that rises above mere commerce and must be nurtured by an individual who shares a vision of inclusiveness that excludes defenders of traditional marriage and other non-liberal concepts. By refusing to “recant,” as Farhad put it, he had demonstrated his inability to lead the company. As Michelangelo Signorile, the editor-at-large of the HuffPost’s Gay Voices wrote, “It’s about a company based in Northern California that has many progressive employees, as well as a lot of progressives and young people among the user base of its Firefox browser, realizing its CEO’s worldview is completely out of touch with the company’s — and America’s — values and vision for the future.”

That Mozilla’s employees and board members actually think it is consistent with American values or even “freedom of speech” (in the words of the company’s disingenuous announcement of Eich’s departure) to hound out of their midst someone who, though a supporter of gay rights in other respects, may disagree with them about marriage or support conservative candidates says something awful about such a group. But if that’s how they feel, then it’s their right to do so even as many on the outside of their cozy left-wing bubble enclave jeer at a version of “inclusiveness” that demands ideological conformity.

Ironically, Slate’s Mark Joseph Stern thinks conservatives are the hypocrites to complain about this because of the Hobby Lobby case. He thinks conservatives are only for protecting the First Amendment rights of companies when they allow people like the religious owners of the Hobby Lobby chain to oppose the Health and Human Services mandate that would force them to pay for abortion drugs for their employees but not for Mozilla to burn Eich at the stake. Wrong.

Conservatives have been consistent about the rights of corporations. It is the left that has always mocked the notion of First Amendment rights applying to corporations, principally in campaign finance law cases. Conservatives have correctly argued that individuals do not give up their right to political speech when they incorporate or engage in commerce. By claiming, as they now do, that the special culture of Mozilla requires it to root out all unbelievers in gay marriage or supporters of conservatives, but deny that Hobby Lobby has the right to protect its particular culture or the beliefs of its owners, liberals are the ones that are engaging in hypocrisy.

It would be nice if liberals were sufficiently self-aware of their inconsistency to cause them to “recant” and grant Hobby Lobby—which has an individual business culture just as special as the one at Mozilla—the same respect it demands for the Torquemadas who rule the roost in the high-tech sector. But I’m not expecting that to happen. The real problem here isn’t hypocrisy but a liberal mindset that views conservatives as not merely wrong, but evil. Eich’s fate shows that the decline of civility in our political culture may have become irreversible. But that makes it all the more important for the courts to defend the Constitution against the left’s crusade against the First Amendment with respect to political speech and faith.

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‘Big Love’ Vindicated: Polygamy and Privacy

Once you blow up a societal consensus it cannot be easily reconstructed to protect only those practices or beliefs you like while still banning those you think ought to be kept beyond the pale. That’s the upshot of a case decided late on Friday in a Federal District Court in Salt Lake City, Utah that essentially decriminalized polygamy. The case, Brown v. Buhman, which was brought by the stars of Sister Wives, a TLC cable channel reality show depicting the life of a man with four wives and 17 children, who challenged the Utah statute that not only prohibited marriage with more than one spouse but said it was illegal for a person to cohabit with someone who was not their legal spouse. Citing the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling that struck down state laws that prohibited sodomy, Judge Clark Waddoups heeded the plaintiffs’ argument that said Utah’s law violated their right to privacy.

While gay marriage advocates have sought to distance themselves from anything that smacked of approval for polygamy, Waddoups’s ruling merely illustrates what follows from a legal trend in which longstanding definitions are thrown out. The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy. Noting this doesn’t mean that the political and cultural avalanche that has marginalized opposition to gay marriage is wrong. But it should obligate those who have helped orchestrate this sea change and sought to denigrate their opponents as bigots to acknowledge that the end of prohibitions of other non-traditional forms of marriage follows inevitably from their triumph.

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Once you blow up a societal consensus it cannot be easily reconstructed to protect only those practices or beliefs you like while still banning those you think ought to be kept beyond the pale. That’s the upshot of a case decided late on Friday in a Federal District Court in Salt Lake City, Utah that essentially decriminalized polygamy. The case, Brown v. Buhman, which was brought by the stars of Sister Wives, a TLC cable channel reality show depicting the life of a man with four wives and 17 children, who challenged the Utah statute that not only prohibited marriage with more than one spouse but said it was illegal for a person to cohabit with someone who was not their legal spouse. Citing the U.S. Supreme Court’s 2003 Lawrence v. Texas ruling that struck down state laws that prohibited sodomy, Judge Clark Waddoups heeded the plaintiffs’ argument that said Utah’s law violated their right to privacy.

While gay marriage advocates have sought to distance themselves from anything that smacked of approval for polygamy, Waddoups’s ruling merely illustrates what follows from a legal trend in which longstanding definitions are thrown out. The inexorable logic of the end of traditional marriage laws leads us to legalized polygamy. Noting this doesn’t mean that the political and cultural avalanche that has marginalized opposition to gay marriage is wrong. But it should obligate those who have helped orchestrate this sea change and sought to denigrate their opponents as bigots to acknowledge that the end of prohibitions of other non-traditional forms of marriage follows inevitably from their triumph.

It should be specified that the federal court decision doesn’t get us quite there yet. Utah’s polygamy law is still on the books, but hanging by a thread. As the Salt Lake Tribune explained:

Utah’s bigamy statute technically survived the ruling. However, Waddoups took a narrow interpretation of the words “marry” and “purports to marry,” meaning that bigamy remains illegal only in the literal sense — when someone fraudulently acquires multiple marriage licenses.

But by saying that the Utah law violated the plaintiffs’ right to free exercise of religion guaranteed by the First Amendment as well as infringing on their right to privacy—the legal principle that served to take down state laws prohibiting contraception and homosexuality—Waddoups has merely taken the next logical step toward legalized polygamy that will, sooner or later, allow polygamists the same rights as other married people.

There are reasons to worry about this. As Stanley Kurtz wrote in the Weekly Standard back in 2006, there is an inherent contradiction between the patriarchal model of polygamy where the husband has authority over his various wives and democracy. Kurtz argued that the 1879 U.S. Supreme Court ruling in Reynolds v. United States that supported the right of states to restrict polygamy not only protected traditional marriage but democratic norms. Prior to the Mormon Church’s renunciation of polygamy, Utah was for all intents and purposes a theocracy. In a society where husbands rule over families like ancient Eastern potentates, freedom isn’t likely to thrive.

According to Kurtz:

Marriage, as its ultramodern critics would like to say, is indeed about choosing one’s partner, and about freedom in a society that values freedom. But that’s not the only thing it is about. As the Supreme Court justices who unanimously decided Reynolds in 1878 understood, marriage is also about sustaining the conditions in which freedom can thrive. Polygamy in all its forms is a recipe for social structures that inhibit and ultimately undermine social freedom and democracy. A hard-won lesson of Western history is that genuine democratic self-rule begins at the hearth of the monogamous family.

When Kurtz wrote his piece, the debate over polygamy was just starting to bubble up in no small part because of the premiere of the HBO series Big Love which ran from 2006 to 2011. The show contrasted the “good polygamy” of its protagonist Bill Hendrickson, an upwardly mobile Viagra-popping entrepreneur who just happened to have three highly attractive wives with the “bad polygamy” of the cult living in a remote compound dominated by an evil “prophet” and his son, a repressed homosexual. If one ignores the religious dimensions of the argument between the LDS church and fundamentalist Mormons that was part of the subtext, the series presented the choice of plural marriage as one that ought to be encompassed by the promise of American liberty.

Indeed, that’s the point made by Georgetown University law professor Jonathan Turley, who represented the plaintiffs in the Utah case. As the New York Times reports, Turley believes that the Utah case is about “privacy rather than polygamy” but also noted:

Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.

In 2006, Kurtz cited Turley’s writings in the wake of Lawrence as a sign that the country was heading toward “a final slide down the slippery slope.” He was right about that, at least as far as gay marriage and polygamy were concerned. But it remains to be seen whether his worries about the future of democracy are similarly prescient. Even in rural Utah, polygamy is something practiced by only a small minority. It is difficult to make the case that either the fictional Hendricksons or the reality stars of Sister Wives present much of a challenge to American democracy. Nor, as Turley rightly argued in court, is there any reason to cite abuses, especially of minors, by cults as unique to polygamy since incest, mistreatment of children, and welfare fraud can also be found in sectors of society that purport to support monogamy.

But liberals like Turley still refuse to acknowledge that Justice Antonin Scalia was right when he predicted in his dissent in Lawrence that the demise of sodomy laws would lead to the legalization of some things that advocates of gay rights wanted no part of. If we have “evolved” to the point where marriage by any two consenting adults of either sex should be recognized by the state, then there isn’t any logical or legal rationale for prohibiting the same privilege for any number of citizens cohabiting to claim the same right.

All that is needed is a little candor on this issue on the part of critics of the dwindling band of opponents of gay marriage. The floodgates have been opened, and if that makes some of us uncomfortable, especially those who understandably view polygamy as synonymous with the exploitation of women, then we should be honest enough to acknowledge that it is merely part of the price that had to be paid to give gays the same right to marry afforded to other citizens.

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Christie’s Gay Marriage Punt and 2016

On its face, Governor Chris Christie’s decision not to go down fighting the legalization of gay marriage in New Jersey was merely bowing to the inevitable. Though he has always opposed gay marriage and even vetoed a bill authorizing it that came out of the legislature, Christie told his attorney general to drop a planned appeal of a state Supreme Court ruling that had refused to delay the start of gay marriage in New Jersey. Given the unanimity of the court and the wording of the preliminary decision, Christie was right to think that even if he continued to fight it, the court was going to do what the legislature had failed to do: overrule the governor and institute gay marriage. But, as Politico notes, there are going to be some conservatives who will add this decision to a list of reasons why they will oppose a Christie run for the Republican presidential nomination in 2016.

Yet as with the governor’s recent flip-flop on in-state tuition benefits for illegal immigrants, Christie is clearly not approaching policy questions demonstrating any worry about appealing to conservative Christian voters who play a large role in GOP presidential primaries. Indeed, as Politico notes today, Christie may have already decided that gestures toward pleasing that group may do his prospects more harm than good. Even though comparisons with Rudy Giuliani’s disastrous 2008 presidential candidacy are unfair since Christie is far more conservative on social issues than the former New York City mayor, Christie is clearly acting as if the same forces that doomed that moderate’s hopes cannot do the same to him.

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On its face, Governor Chris Christie’s decision not to go down fighting the legalization of gay marriage in New Jersey was merely bowing to the inevitable. Though he has always opposed gay marriage and even vetoed a bill authorizing it that came out of the legislature, Christie told his attorney general to drop a planned appeal of a state Supreme Court ruling that had refused to delay the start of gay marriage in New Jersey. Given the unanimity of the court and the wording of the preliminary decision, Christie was right to think that even if he continued to fight it, the court was going to do what the legislature had failed to do: overrule the governor and institute gay marriage. But, as Politico notes, there are going to be some conservatives who will add this decision to a list of reasons why they will oppose a Christie run for the Republican presidential nomination in 2016.

Yet as with the governor’s recent flip-flop on in-state tuition benefits for illegal immigrants, Christie is clearly not approaching policy questions demonstrating any worry about appealing to conservative Christian voters who play a large role in GOP presidential primaries. Indeed, as Politico notes today, Christie may have already decided that gestures toward pleasing that group may do his prospects more harm than good. Even though comparisons with Rudy Giuliani’s disastrous 2008 presidential candidacy are unfair since Christie is far more conservative on social issues than the former New York City mayor, Christie is clearly acting as if the same forces that doomed that moderate’s hopes cannot do the same to him.

To argue that Christie’s decision will enable his opponents to label him pro-gay marriage seems a stretch. After all, Christie has been a firm opponent of the measure and even now says he believes the court was wrong to impose its view on the state rather than to let it be subject to the usual constitutional process for legislation. If anything, this chain of events enables Christie to make an argument about the destructive impact that activist judges have on the country, something that should appeal to conservatives.

There will be some who will claim that he should have gone down fighting preventing gay marriage. But though he has an impeccable pro-life record, he will never outdo some of his prospective conservative rivals in that respect. More than that, Christie may feel that the culture is changing on attitudes to gays so quickly that the issue won’t be a real factor even in a Republican primary. That’s especially true if the conservatives will be battling each other for the same social-issues voters while Christie has, as was the case with Mitt Romney in 2012, little competition for more moderate Republicans.

That said, no one should underestimate the hard feelings against Christie that are brewing on the Republican right. While Christie can rightly claim to be a tough-minded critic of liberals and their institutions, such as teachers’ unions, as well as having governed as a conservative in a blue state, some Tea Partiers seem to think of him as a creature of the left. In a political atmosphere that has grown more toxic as the GOP tears itself apart in the wake of the government shutdown, Christie may well become the hard right’s piñata and, along with Senator Mitch McConnell, their favorite scapegoat for all conservative defeats.

The expectation all along has been that once Christie is safely reelected next month, he will begin the process of drifting to the right in order to set up a presidential campaign. But his gay marriage decision may be one more piece of evidence that Christie has already made his peace with the fact that the right will fight his candidacy in 2016 and that he believes he can beat them anyway.

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On Turning Political Opponents into Moral Monsters

I want to second what Jonathan has written about the Supreme Court’s two decisions related to same-sex marriage.

The worst possible outcome was that the high court would, in an exercise of raw judicial power, invent a constitutional right to gay marriage, forcing all 50 states to abide by it. We averted that outcome, which would have split the nation in a manner similar to what Roe v. Wade has done for two generations. It is in the nature of conservatism to be grateful when things that can go wrong don’t go wrong; and in this instance, we avoided a decision that would have had ruinous effects.

I also want to focus on one section of Justice Scalia’s dissent, in which he wrote this:

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I want to second what Jonathan has written about the Supreme Court’s two decisions related to same-sex marriage.

The worst possible outcome was that the high court would, in an exercise of raw judicial power, invent a constitutional right to gay marriage, forcing all 50 states to abide by it. We averted that outcome, which would have split the nation in a manner similar to what Roe v. Wade has done for two generations. It is in the nature of conservatism to be grateful when things that can go wrong don’t go wrong; and in this instance, we avoided a decision that would have had ruinous effects.

I also want to focus on one section of Justice Scalia’s dissent, in which he wrote this:

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do.

It’s worth pausing over what Justice Scalia is saying here, which is that we’re all susceptible to weaving narratives that are black and white, that truth is often more complicated than that, and that it’s hard to admit that one’s political opponents are not monsters, especially in a struggle like this one.

I’ve written in the past about this phenomenon. We often deny to those with whom we disagree any benefit of the doubt, since we assume they see facts, events and justice just as we do. This makes their differing conclusions from us very nearly impossible to comprehend–and in turn makes it easy to characterize one’s opponents as pernicious. It would help our political culture if we understood that every one of us has an imperfect angle on reality; that our perception of justice is always at least a bit distorted; and that all of us see through a glass darkly and know things only in part. 

To be sure, this is not an argument against spirited and intense disagreements (I’ve been involved in a few of those myself over the years). Nor do I mean to imply that some people aren’t closer to perceiving truth and wisdom than others. It’s simply to say that Justice Scalia is correct; in politics, in judicial and theological disputes, and in life generally, it’s sometimes hard to admit that our political opponents, while they may be wrong, are not monsters. They are, in fact, fellow citizens. Which is probably worth remembering on days like this and in the aftermath of decisions like this.

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A Ruling Without Reason

This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

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This morning the Supreme Court voted by a 5-4 margin that Section 3 of the Defense of Marriage Act, defining marriage as a legal union between one man and one woman as husband and wife for the purpose of federal law, is unconstitutional. But why? Is it because Section 3 violates long-standing principles of federalism that favor state power to define and regulate family relations? Or is it because Section 3 violates the Fifth Amendment rights of gays and lesbians to equal protection of the laws? The answer, in effect, is none of the above. In a 26-page opinion brimming with constitutional catch phrases but containing no coherent rationale, the Court delivered an outcome that many find politically favorable but that no serious reader could possibly find legally sound.

There are many strong arguments against the constitutionality of Section 3 of DOMA. As I argued in the May issue of COMMENTARY, the most compelling argument is that the statute represents an unprecedented encroachment by the federal government upon the power of the states to regulate and define marital relations. Indeed, at the opinion’s outset, this seems to be the line of reasoning the majority is going to adopt in overturning Section 3. “By history and tradition,” the majority writes, “the definition and regulation of marriage … has been treated as being within the authority and realm of the separate States.” The majority continues in this vein for about seven pages… before announcing that federalism is irrelevant to the case!

“The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism,” the majority writes–and not because the state has exclusive sovereignty over the regulation of marital relations. Rather, according to the majority, the power of the state is central because in this case New York State passed a statute of which the majority approved. The recognition by New York State of same-sex marriage “enhanced the recognition, dignity, and protection of the class in their own community.” According to the majority, the federal government snatched away that “recognition, dignity, and protection” in a fit of homophobic animus with the Defense of Marriage Act. “What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.”

This is starting to look like an equal protection argument until the majority again veers off course. It does not engage in a rigorous equal protection analysis based on an established standard of constitutional scrutiny–the rational basis test, which seeks some legitimate government interest underpinning a statute, or the strict scrutiny test, which seeks some compelling government interest supporting a statute, or even the heightened scrutiny test, which is an intermediate level of review. Instead, the Court declares DOMA a violation of the Fifth Amendment’s equal protection component demanding “careful consideration.”

Careful consideration of what?

The Court does not say. To wit, careful consideration is a standard of review conferred upon menus, brochures, and resumes, not constitutional claims for equal protection of the laws. So while supporters of same-sex marriage celebrate the outcome in United States v. Windsor, the victory may well prove pyrrhic. The degree of constitutional protection to which homosexuals are entitled is no more clear today than it was on the day that DOMA was enacted in 1996. What is more, proponents of federalism have cause for concern. By refusing to hold categorically that the states are sovereign over the regulation of familial relations within their boundaries, the Court left open the possibility of future federal legislation in that field. The Court’s decision in Windsor has neither vindicated gay rights nor championed federalism. Rather, with what Justice Scalia scathingly characterizes as a “disappearing trail of . . . legalistic argle-bargle,” the majority has presented the nation with a policy choice clothed in tatters of doctrine.

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