The long-expected decision of the U.S. Supreme Court imposing same-sex marriage on the country has been issued. The obvious next question is whether this settles the matter, and there’s a one-word answer: “Hardly.”
If anything, the court’s decision is likely to roil the nation and pave a path toward more cultural conflict, not less.
I have been engaged with the American people in a robust debate on the nature of marriage and how it should be treated in the law ever since I managed the successful Proposition 8 campaign in California. I’ve been involved in legislative and electoral contests in more than a dozen states and in every region of the country.
I realize that many people disagree with the view that marriage is the union of one man and one woman. That’s what makes a debate and why we have elections. My side prevailed in four public votes and lost in four others. That is how closely divided the nation is on same-sex marriage.
The 5-4 majority on the Supreme Court has illegitimately truncated that debate. In his dissent, Chief Justice John Roberts wrote: “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”
The court’s narrow majority has substituted its views for those of countless elected officials and more than 50 million voters who decided that traditional marriage should be preserved in their respective states. In his dissent, Justice Antonin Scalia called it exercising “super legislative” authority.
In legislating from the bench, the court has deprived both sides of the satisfaction of potentially winning the public debate, while cheating the losing side of any solace that might come from being defeated in a fair fight.
This decision joins other infamous rulings that lacked constitutional legitimacy, including the Dred Scott case declaring that African Americans were not citizens but property, and Roe v. Wade mandating abortion in every state. Just as Roe did not settle the issue of abortion, Obergefell v. Hodges won’t settle the marriage debate.
The inevitable result of this ruling will be to ensure that marriage remains controversial. The most immediate political conflict concerns what actions governments might take to force acceptance of the ruling. In states with gay marriage, bakers, florists, photographers and innkeepers have been punished for refusing to participate in same-sex ceremonies. Religious groups have been forced to close ministries such as adoption agencies to avoid violating their beliefs. President Barack Obama’s top litigator has already hinted that Christian colleges could lose their tax exemptions if they do not allow gay couples to live together on campus.
Chief Justice Roberts noted the court majority “ominously” gives lip service to religious liberty by saying that religious people and groups can “teach” and “advocate” for traditional marriage, but the Constitution guarantees the right to the exercise of religion.
There will be a pitched legislative battle in Congress to enact the First Amendment Defense Act (S 1598/HR 2802) to prevent any federal agency from taking adverse action against anyone based on their belief that marriage is between a man and a woman.
The court’s decision will also powerfully inject marriage into the 2016 presidential contest. The most direct course to reverse this ruling lies in the next president appointing new justices to the Supreme Court. Social conservatives will do everything possible to ensure that the Republican nominee is a strong pro-marriage champion, making this a litmus test throughout the GOP primaries and caucuses.
There will also be a strong push to amend the U.S. Constitution, not only to reverse this ruling, but to hold the Supreme Court more accountable. Is amending the constitution easy? No, but neither is recalling a governor or removing state Supreme Court justices, yet these things have been accomplished.
Liberals will bemoan these conflicts as a continuation of the “culture wars,” but they are responsible for advancing them. As long as important values are under fire, especially when they involve giving government the power to subvert unalienable rights granted by our creator, conservatives must either engage the debate or surrender. I don’t see any white flags on the horizon.
Frank Schubert is founder of Mission Public Affairs, a Sacramento political consulting firm. He ran the pro-Proposition 8 campaign in 2008 and several other campaigns around the country supporting traditional marriage.