How the Religious Right guaranteed marriage equality.

I was reading a US News and World Report article today when I had a light-bulb moment. I have argued, for some time now, that the Religious Right has lost the battle on gay marriage. All we have left is the charade of going through the motions in state after state. I even suspect that, after enough states have seen fit to grant legal equality to same-sex couples, that the Supreme Court might even get up the courage to enter the fray — much as they did with the Lawrence v. Texas decision on sodomy, where the court only found such laws unconstitutional long after most states had abolished them.

My light-bulb moment wasn’t the recognition that marriage equality is inevitable, that I’ve known for some time now. What I realized was the precise point that the Religious Right lost their crusade. And I know whom they can blame for it.

The key turning point for the Religious Right’s antigay campaign was Proposition 8. While I have long thought Prop 8 to be a Pyrrhic victory for social conservatives, due to many factors, it was in Prop 8 that the Religious Right floated the strategy that, while it helped them win one battle, will ultimately mean they will lose the war.

The Yes on 8 campaign resorted to some intentional distortions of facts to win. They openly lied to the voters about how marriage equality will harm religious freedom. That has been their mantra since Prop 8. We need to realize why this is the case.

First, they resort to this argument because they know their other arguments hold little sway with most voters. The real reasons they wish to deny gay couples equal rights are two-fold. One is the religious doctrines they hold. The second is pure prejudice. Typically, someone who holds the first view also holds the second, while it is not automatically true that those who are prejudiced are also religious. But religious arguments against gay couples are almost always coupled with bigoted attitudes toward gay people in general.

However, it would be difficult to sell either of those two positions to people outside Religious Right circles. Worse yet, if the Religious Right tried to do so they would stampede independent voters toward marriage equality. If the Religious Right honestly told the American public what it believes they would lose the battle almost instantly. Most Americans want separation of church and state, and even people who are uncomfortable with homosexuals are more uncomfortable with openly expressed bigotry. There was a time when the Right could have gone with their gut emotions and won, but times have changed. Something subtler needed to be invented.

So the Yes on 8 campaign, a coalition of fundamentalists, orthodox Catholics and Mormons, funded mostly by Mormons, went with the alleged assault on religious liberty instead. To do so, however, required they falsify the facts.

They claimed that Catholic Charities in Massachusetts had to shut down adoptions because they were being forced to recognize gay marriages when it came to adoption. The truth was far more complex. Actually the charity itself was happy with gay adoptions but the church leadership forced them to stop that. And the only reason this ran into problems was because the charity “acted as a state contractor, receiving state and federal money to find homes for special-needs children who were wards of the state….” Had the charity operated with church money alone it would still be open. The Mormon adoption service in Massachusetts operates to this day because it was privately funded. What it came down to was that Catholic Charities wanted tax money from gay couples while also wanting to discriminate against them. Given the option of discriminating with their own money they chose to close down instead.

Similarly the other major case the Prop 8 campaign pointed to, which dealt with a church-owned pavilion in New Jersey, was also falsely presented. The church that owned the pavilion had petitioned for tax-exemption on this property, which was not used for church services. They did so claiming that use of the pavilion was “open to the public,” thus it was a public facility and should be tax-exempt. When they found out that “open to the public” actually meant open to the public, they had a choice. They could keep the tax-exemption and actually be open to everyone, or they could discriminate without the exemption. As the Los Angeles Times explained: “The court ruled against the non-profit, not because gay rights trump religious rights, but because public land has to be open to everyone or it’s not public.”

The simplest way to understand the extent of the exemptions that exist in US law, when it comes to discrimination, is to think about heterosexual marriage. Anti-discrimination laws say we can’t discriminate against people due to their religion. We can’t refuse to serve Baptists in our business, no matter how much we might wish to do so. Yet no Catholic priest has ever been forced to perform a marriage for a Baptist. The Mormons have never been required to admit a Jew, or any non-Mormon, to one of their secret rituals in their temples. Yet a Mormon, who fires someone merely because he is a Jew, is asking for legal trouble.

The First Amendment, which the Right tends to despise, protects religious institutions from the consequences of anti-discrimination laws, provided the religious institution has kept itself separate from state funding. If they are funded by the state they will lose this protection.

Consider two rulings by the California Supreme Court. This court ruled that laws against same-sex couples violated the equal protection clause of the state constitution. The court was raked over the coals by the Religious Right because of that ruling. They were accused of being pawns of “the gay agenda.”

But consider what happened at California Lutheran High School. The school claimed that two female students had formed “a bond” that was “typical” of a lesbian relationship. They didn’t even claim that the students were actually lesbian, or in a relationship; they said it merely looked that way to them. The school, in a fit of Christian charity and compassion, expelled the two students.

Now, allow me to quote, from a Religious Right website, what the California Supreme Court ruled. The comments I quote are from the religious nuts, not from the Supreme Court:

The California Supreme Court upheld a lower court’s ruling Wednesday protecting the religious freedom of a Christian private school that expelled two female students for having a lesbian relationship… … in January, the 4th District Court of Appeal found that a religious private school is not a business, but a social organization that exists primarily to instill its values in students, and therefore is not subject to the civil rights laws that force California businesses to cater to the homosexual movement.

In letting the appeal court’s ruling stand, Casey Mattox, litigation counsel for the Virginia-based Center for Law and Religious Freedom, said Justice Kathryn Mickle Werdegar's of the state’s supreme court made "the correct decision." 



"We think it preserves religious freedom," he said.

The very same group of justices, who supported gay marriage, also made it clear that religious institutions are free to be bigoted. Religion enjoys exceptions that other institutions don’t enjoy. There is plenty of legal precedent for this, and a strong Constitutional protection in the First Amendment.

What this means is that religious freedom was NEVER under threat from gay marriage. The whole argument is as fake as a one dollar bill (you’d understand if you know my thoughts on fiat currency).

Now, go forward a bit to the recent debate on marriage equality in New Hampshire. Governor John Lynch said he would sign the recent legislation allowing gay couples to marry provided that “religious freedom” is explicitly protected in the law itself. Of course, such a protection is not necessary. Adding such a clause will do nothing more to protect religious freedom than is already the case.

More importantly, such clauses don’t take anything away from the legal rights that accompany marriage either

Once Governor Lynch made his announcement about protecting religious freedom the sponsors of the marriage equality bill said they had no problems with his requirements. The primary sponsor of the bill Rep. James Splaine said: “We can find a way to do that in the next week or two, and then we’ll have marriage equality.”

The New Hampshire situation illustrates why the Religious Right will lose this battle. They framed the debate around marriage equality as being one of religious freedom. They were able to win support, albeit dishonestly, by using this fake threat to religious freedom as the center of their advertising campaign. But, since religious freedom was never under threat, their opponents can easily concede religious “protections” which already exist. In other words, the advocates of marriage equality can give in to the Religious Right without actually having to give anything away. Of course, the fundamentalist types aren’t going to support gay marriage no matter what concessions are made; this were never the reason they opposed marriage equality to begin with. But, in this political battle, the fundamentalists don’t matter, neither does the gay community and their friends. In politics what matters is the large group of people in the middle.

Independent voters tend not to be bigoted against gays but also tend to support religious freedom. It is to these voters that both sides must appeal. The fundies appealed to them with concerns about religious freedom. Gays appealed to them on equality of rights. Enough middle voters bought into the Right’s concerns to give a victory to Prop 8, even though religious freedom was never under assault. When it comes to attracting this group of voters, the only arrow in the quiver of the Right was religious freedom.

When proponents of marriage equality explicitly protect religious freedom, which is unnecessary and which doesn’t actually concede anything, they tip the balance in their favor. What can the Right do in return? All they can do is try to shift their argument elsewhere. From the perspective of informed middle voters the proponents of marriage equality compromised to satisfy the Religious Right and freedom of religion is deemed protected.

If you wish to go into battle with a group or someone, and you have no desire to reach a compromise that will make everyone happy, you must demand something which you know will never be surrendered. When the Right made religious freedom the center of their antigay campaign they inadvertently made the key issue one which their opponents could quite easily and openly concede. This was precisely the loophole that Governor Lynch needed in order to abandon his opposition to marriage equality. It is also the loophole that many independent voters will need as well.

I predict that as marriage equality proponents discover the value of this loophole, one drawn up and provided to them by the Religious Right, that more and more marriage legislation will include precisely this sort of religious exemption—an exemption that existed in US law anyway. By providing those exemptions, at no cost to themselves, proponents of marriage equality, will move a large number of independent voters into their camp. In other words, the Religious Right inadvertently gave marriage equality a boost by providing it with a tool it can use to placate the concerns of independent voters but without actually having to surrender anything. It is a cost-free strategy that can shift the debate and it will be more difficult for the fundamentalists to oppose such legislation in the future. Of course, they will oppose it anyway, but in the process they will look more like bigots and less like defenders of religious freedom.

And in that strategic blunder the Religious Right lost the war.