Many Republicans breathed a sigh of relief this past week when Democrats announced they would postpone a vote on their Respect For Marriage Act in the Senate. The bill, which seeks to enshrine the right to gay marriage in federal law, passed easily in the House of Representatives with the votes of every Democrat and 47 Republican members. But sponsors know they must have at least 10 Republican votes in the Senate if they are to prevent a filibuster. The only sticking point was whether sponsors would include language in the bill that would ensure the rights of those who oppose gay marriage for religious reasons.
Though most Republicans have no appetite for refighting a culture war over gay rights that was lost long ago, they need to stand their ground on the question of religious freedom.
Democrats are pushing the gay marriage bill because of what Justice Clarence Thomas wrote in his concurring opinion in the Dobbs v. Jackson Supreme Court decision. The Justice expressed a willingness to uphold the actual meaning of the text of the Constitution—as opposed to the liberal belief that the Constitution can be used to validate any policy goal—that also calls into question the 2015 Obergefell decision in which the Court established a national right to gay marriage. That threat is ephemeral, of course, since none of the other Justices and few Republicans want to go down that road, but it has inflamed the Democrats' leftist base.
Yet Republicans eager to avoid a fight need to remember that the group whose rights are under actual assault in this country are religious believers, not gay people looking to get married. As a recent Supreme Court ruling dictating that Yeshiva University—the country's leading Orthodox Jewish institution of higher learning—recognize an LGBTQ club on its campus despite the school's religious beliefs illustrates, the conservative majority on the High Court won't necessarily protect individuals and institutions of faith if they dissent from the liberal establishment.
Though liberals are falsely claiming that Dobbs portends the rise of a conservative theocratic state, the truth is just the opposite. The Left remains on the offensive in the country's culture wars. While the courts have upheld the principle of religious freedom in some instances, defeats for believers are as numerous as victories.
That is why any gay marriage bill must include specific language guaranteeing the First Amendment rights of religious believers who don't wish to be compelled to validate or participate in rites with which they disagree.
The growing consensus on the Left is that the First Amendment protections invoked by conservatives are bogus. For them, the "free exercise" of religion protected in the Constitution applies only to matters of private conscience. They think religious freedom is just one right among many to be balanced, and ultimately discarded when it comes into conflict with woke conceptions about how society should operate. As the recent cases involving florists and bakers indicate, the Left's goal is not just to sweep away any faith-based objectives to liberal policy goals but to ensure that dissenters from gay marriage are branded as extremists and penalized to the point of being driven out of the public square.
Democrats believe their chances of eventually getting enough GOP votes on gay marriage to ensure its Senate passage are good. But they decided to wait until after the midterms, when they believe centrist and establishment Republicans will be more likely to go along with the measure without serious religious freedom protections.
They might be right about that.
While Americans remain deeply divided over abortion, public opinion on gay marriage has undergone a transformation over the last 30 years. In 1996, only 27 percent of respondents told Gallup they favored it. Public support has since increased due to a number of factors, including the decline in religiosity and the normalization of the LGBTQ community in ubiquitous pop culture portrayals. Opposition to what the Left calls marriage equality has evaporated in the last decade in particular, with 71 percent now registering their support in a recent poll.
Still, only 40 percent of regular churchgoers are part of that majority. Republicans who are inclined to follow the secular majority on gay marriage should be wary of abandoning their base. You don't have to be an opponent of that right to understand the stakes in this debate.
Including ironclad religious freedom protections in any gay marriage bill won't infringe on the right of gay individuals to marry. But it will undermine the Left's desire to pursue a culture war offensive against religion. As much as Republicans don't want to be portrayed as opposing a national consensus on marriage, agreeing to a bill that doesn't defend a religious right to dissent will illustrate just how unprincipled the party's Washington establishment is. It would also be an indefensible betrayal of the constitutional rights of people of faith.
Jonathan S. Tobin is editor-in-chief of JNS.org and a senior contributor to The Federalist. Follow him on Twitter at: @jonathans_tobin.
The views expressed in this article are the writer's own.
