Marriage: Where Do We Go From Here?

Barb Wire

Subtitle: The pro-marriage case can win — if we don’t give up on it.

By Ryan T. Anderson

In the media’s portrayal, people defending marriage as the union of a man and woman have been getting routed ever since the Supreme Court decision last June — if not before. They point to a string of lower-court rulings striking down state marriage amendments and to public-opinion polling, especially of my peers in the Millennial generation. Many also point to the forced resignation of Brendan Eich and the defeat of Arizona’s religious-liberty bill.

Some people would like me and the millions of Americans who continue to believe that marriage is what societies have believed it to be throughout human history — a male-female union — to get with the program and accept the inevitable. We’re clearly, they tell us, on the Wrong Side of History.

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But we should avoid the temptation to prognosticate about the future in lieu of working to shape that future. We are citizens in a self-governing society, not pundits watching a spectator sport, not subjects of rulers. We are participants in one of the most significant debates our society — any society — has ever faced.

So, the question is, where do we go from here? How do we best advance the cause of marriage as the union of a man and woman, husband and wife, father and mother.

Some say we should abandon the defense of marriage and retreat to only protecting religious-liberty exemptions. They argue that this is the best course of action in light of what they take to be an inevitable defeat. Others go further and suggest that we should simply disengage with politics entirely, retreat to our own communities, and rebuild a marriage subculture there.

As tempting as these plans may be, they aren’t the right answer.

We must continue to witness to the truth about marriage, find new ways to make the reasoned case about what marriage is, and work to protect our freedoms to do so for the next generation. All of this must be done in service of the long-term goal of restoring a culture of marriage.

This requires both political and cultural efforts. Those who emphasize religious-liberty protections are somewhat right, for to even have the freedom to build countercultural institutions that preserve the truth about marriage we will at the very least need to protect the liberty — including religious liberty — to do so. But they are wrong in thinking we can protect religious liberty without defending the substantive view we seek the liberty to hold and act on. In order to protect our liberty with respect to marriage, we must persuade our neighbors that our views about marriage are reasonable, and thus that our rights to govern our lives in accord with those views should be respected.

In doing this, we must understand that, for many of our neighbors, the argument for marriage hasn’t been heard and rejected; it simply hasn’t been heard. We must make that argument in new and creative ways.

In the short run, the legal battle over the definition of marriage may be an uphill struggle. But in the long run, those who defend marriage as the union of a man and woman will prove to be prophetic. First, because when people do hear a compelling case for marriage, they respond accordingly. And second, because the logic of marriage redefinition ultimately leads to the dissolution of marriage into nothing more than a social mess of consenting adult love of manifold sizes and shapes.

Those who defend — and live out — the truth about marriage should redouble their efforts to witness to the truth about marriage while there is still time to steer clear of that chaos. Here are six ways to do that.

ONE. Stand Up for Our Authority as Citizens to Pass Laws Reflecting the Truth about Marriage

Last summer, when the Supreme Court struck down the federal Defense of Marriage Act (DOMA), many cited the Court’s own language to explain the limited reach of the ruling. While the Court ordered the federal government to recognize all state-recognized marriages (including same-sex relationships), the Court declared that “the definition and regulation of marriage has been treated as being within the authority and realm of the separate States.” The states remain free — and should continue — to define marriage as the union of one man and one woman.

Indeed, Chief Justice John Roberts emphasized the limits of the majority’s opinion. He made clear that neither the holding nor its logic required redefining state marriage laws. And Justice Alito made clear the actual constitutional status of marriage laws.

Alito framed the debate as a contest between two visions of marriage — what he calls the “conjugal” and “consent-based” views. Alito cited my book, What Is Marriage? Man and Woman: A Defense, as an example of the conjugal view of marriage: a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life.” He cited Jonathan Rauch as a proponent of the consent-based idea that marriage is a commitment marked by emotional union.

Alito explained that the Constitution is silent on which of these substantive visions of marriage is correct. And, so, Alito said, the Court should defer to democratic debate.

At the same time, we should be clear-eyed about what’s coming next. The courts seem intent on disregarding the democratic process and usurping authority away from citizens and their representatives. But the Court will be less likely to usurp the authority of citizens if it is obvious that citizens are engaged in this democratic debate and care about the future of marriage. This is what Justice Scalia predicted: The Court will do whatever it thinks it can get away with. And as recent events in the lower federal courts suggest, judges seem to think they can get away with a lot.

We must, therefore, rally in support of our constitutional authority to pass laws defining marriage truthfully. We must make clear that Court-imposed same-sex marriage via a Roe v. Wadestyle decision will not settle the marriage debate any better than it has settled the abortion debate.

TWO. Defend Our Form of Government and Our Liberties

Whatever happens at the Court will cause less damage if we vigorously advance the arguments for a classically liberal form of limited government and highlight the importance of religious liberty. Even if the Court were to one day redefine marriage, governmental recognition of same-sex relationships as marriages need not and should not require any third party to recognize a same-sex relationship as a marriage. Protecting religious liberty and the rights of conscience does not infringe on anyone’s sexual freedoms.

Indeed, a regime of free association, free contracts, free speech, and free exercise of religion should protect citizens’ rights to live according to their beliefs about marriage. And yet, a growing number of incidents show that the redefinition of marriage and state policies on sexual orientation have created a climate of intolerance, intimidation, and even government coercion for citizens who believe that marriage is the union of a man and woman and that sexual relations are properly reserved for marriage. State laws that create special privileges based on sexual orientation and gender identity (dubbed SOGI) are being used to trump fundamental civil liberties such as freedom of speech and the free exercise of religion.

Under such laws, family businesses — especially photographers, bakers, florists, and others involved in the wedding industry — have been hauled into court because they declined to provide services for a same-sex ceremony in violation of their religious beliefs.

Conservatives, indeed all Americans, must work to prevent the passage of such laws and to call our fellow citizens to embrace the best of the classically liberal form of government. Although Americans are free to live how we choose, we should not use government to penalize those who think and act differently.

Private actors should be free to make reasonable judgments and distinctions — including reasonable moral judgments and distinctions — in their economic activities. Not every florist need provide wedding arrangements for every ceremony. Not every photographer need capture every first kiss. Competitive markets can best harmonize a range of values that citizens hold. And there is no need for government to try to force every photographer and every florist to participate in every marriage-related event.

Likewise, we must help our neighbors see the importance of religious liberty in particular. Protecting religious liberty and the rights of conscience fosters a more diverse civil sphere. Tolerance is essential to promoting peaceful coexistence even amid disagreement.

When he “evolved” on the issue, President Obama insisted that the debate about marriage was a legitimate one and reasonable people of good will were on both sides. Obama explained that supporters of marriage as we’ve always understood it “are not coming at it from a mean-spirited perspective” but “because they care about families.” He added that “a bunch of ’em are friends of mine . . . you know, people who I deeply respect.” And yet, in a growing number of incidents, government hasn’t respected the beliefs of Americans.

Respecting religious liberty for all those in the marketplace is particularly important. After all, as first lady Michelle Obama put it, religious faith “isn’t just about showing up on Sunday for a good sermon and good music and a good meal. It’s about what we do Monday through Saturday as well.”

In addition to blocking bad policy, such as SOGI provisions, policymakers should pursue good policy. Policy at the federal level should prohibit the government from discriminating against any individual or group, whether nonprofit or for-profit, based on their beliefs that marriage is the union of a man and woman or that sexual relations are reserved for marriage. Policy should prohibit the government from discriminating against such groups or individuals in tax policy, employment, licensing, accreditation, or contracting.

States need similar policy protections, starting with broad, across-the-board protections provided by state-level Religious Freedom Restoration Acts (RFRAs). States must protect the rights of Americans and the associations they form — both non-profit and for-profit — to speak and act in the public square.

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The opinions expressed by columnists are their own and do not necessarily represent the views of Barb Wire.

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