Religious Liberty and the Gay Marriage Endgame

For now, the right to define marriage is still reserved to the states, which means that the political battle can continue

Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today.

 

Since Anthony Kennedy tends to have the final say when our republic’s culture war debates reach the Supreme Court, and since it seems safe to assume where the author of Romer v. Evans and Lawrence v. Texas stands on the question of gay marriage, you can make a strong case that same-sex marriage opponents should actually be breathing a sigh of relief at today’s rulings on the issue. For now, the right to define marriage is still reserved to the states, which means that the political battle can continue — albeit amid a flood of new lawsuits inspired by some of Kennedy’s arguments — in jurisdictions where the national trend toward support for gay wedlock hasn’t yet overwhelmed the traditional view. This obviously matters to the hardy band of activists who still hold out hope of reversing that trend. But it also matters to the many social conservatives who assume that gay marriage’s continued advance is more or less inevitable, but who hope to build in as many protections for religious liberty as possible along the way.

From this point of view, continuing on the current gradualist, federalist path to same-sex marriage gives conservatives time and space to pivot, ”psychologically as well as legally,” from the fight against gay marriage itself to “the struggle to preserve religious liberty and ensure that this revolution already made doesn’t enter a more radical phase,” The American Conservative’s Dan McCarthy suggests today. Ben Domenech, editor of The Transom, who’s written eloquently on the stakes for religious liberty in these debates, offered a similar take in April:

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