As wedding bells ring out in California, opponents of gay marriage are left facing a government and culture that are increasingly failing to take their warnings of impending social disaster seriously.
According to Dale Carpenter over at Volokh, the reason is plain and simple: critics of gay marriage have failed demonstrate that it will cause any tangible harm:
They have tried many harm-based arguments but so far nothing has stuck. Not “evidence” of social decline from Scandinavia or the Netherlands. Not polygamy. Not population implosion.
With that failure in mind, the search is on for some suitably scary gaypocalyptic scenario with which to shock Americans. And the current favorite is the claim, recently advanced by Maggie Gallagher and Marc D. Stern, that gay marriage threatens to destroy religious rights.
Argues Gallagher (who spend the first half of her article aptly demonstrating that she’s either ignorant of or oblivious to swingers):
Gay-marriage advocates are willing to use a variety of arguments to allay fears and reduce opposition to getting this new “equality” principle inserted in the law; these voices may even believe what they are saying. But once the principle is in the law, the next step will be to use the law to stigmatize, marginalize, and repress those who disagree with the government’s new views on marriage and sexual orientation.
If past rulings are any guide, it is religious rights that are likely to be “obliterated” by an emerging popular majority supporting same-sex relationships — and it seems unlikely that the California courts will intervene. That’s a shame.
But as Carpenter points out, these fears are dishonest on at least two counts.
First of all, what’s at stake in many of the “horror stories” these and other critics cite are the right of religious groups to discriminate against gay people in situations where the groups are either using government money, or some public assistance, for the relevant function. That’s a rather different matter than religious expression and core worship services themselves being targeted for obliteration or discrimination lawsuits. It’s an issue of a much smaller scope. It’s lame enough when religious organizations generally claim that they should not be taxed, since “taxation is the power to destroy.” But what these critics are essentially arguing that religion is in danger of obliteration unless it receives special, no-strings attached, taxpayer support and legal treatment for their charitable programs.
Secondly, the actual issue in all of these cases isn’t even gay marriage in the first place. Again, nearly every “horror story” that’s cited involves anti-discrimination laws proper. Gay marriage is irrelevant. Carpenter again:
Neither the viability of the discrimination claim nor the viability of the religious objectors’ desired exemption turns on whether the gay couple is officially recognized. In most of the cited cases, in fact, the couples’ relationship was not recognized by the state, but adding such a status to the cases would change nothing about their legal significance. The most egregious abuse of these examples to undermine gay marriage is the Catholic Charities case, which involved the application of a 1989 antidiscrimination law. That dispute arose because the Catholic Church objected to complying with the law for the first time only after gay marriage was permitted in the state. It was a fortuitously timed conflict for gay-marriage opponents given that the state legislature was at that very moment considering a constitutional amendment to ban gay marriage.
In short, what Gallagher and Stern are really objecting to in these passages are anti-discrimination laws that have been around, in some cases, for decades. If they really oppose those laws, they are welcome to argue their case. In fact, they’re 100% right about some of them, in my opinion: I’m generally against all anti-discrimination laws that affect purely private businesses in any case (yes, even racial ones). But presenting these situations as if they are unique challenges that only now exist thanks to gay marriage is deeply misleading.
And if there really are any good reasons to see California’s latest newlyweds as portents of doom, they’ll have to be found elsewhere.