Joan Frawley Desmond, is the Register’s senior editor. She is an award-winning journalist widely published in Catholic, ecumenical and secular media. A graduate of the Pontifical John Paul II Institute for Studies of Marriage and Family, she lives with her family in California..
Liberals and conservatives have compared the U.S. Supreme Court's Roe v. Wade decision with Obergefell v. Hodges. Both are landmark rulings, in which the high court takes sides in a fractious national debate that was far from decided in the minds of many voters.
But Bill McGurn, the Wall Street Journal columnist, takes issue with that assessment, at least as it involves the likely impact of the court's decision to legalize same-sex marriage.
McGurn does not dispute the grave immorality of legal abortion. Rather he argues that the weak, ambiguous language on free-exercise protections in Justice Kennedy's majority opinion in Obergefell will unleash unprecedented attacks on individuals, churches and institutions that resist the logic of "marriage equality."
Obergefell is Roe on steroids. Roe legalized a market for abortion for those who wanted them and those who provided them. It was qualified by conscience protections plus riders attached to federal legislation greatly limiting the use of taxpayer dollars to underwrite the practice. So Roe didn’t demand much of those on the other side—or on the sidelines.
Obergefell is another thing altogether. In one of the great flimflams of American life, it is a prescription for endless litigation smuggled in under libertarian clothing. This began with the opening question put to all those who held the classic view of marriage: What can it possibly matter to you, they were asked, if two men or two women who love each other call their relationship marriage?
We learned that it matters a great deal.....
It matters to Catholic Charities, which in several states has been forced out of the adoption business either because the charity does not offer same-sex spousal benefits or declines to place children for adoption with same-sex couples.
In a post on The Federalist website, Denny Burk explains what he believes is the endgame that has largely been ignored in the media's coverage of this fast-moving issue:
The agenda is not tolerance for different beliefs and lifestyles. The agenda is a demand that everyone get on board with the moral revolution or be punished. That means if you or your church won’t get with the program, then the revolutionaries will endeavor to close you down.
But they aren’t going to say,”We’ll close you down,” in so many words. They will cover it in propaganda that conceals their real aim. They’ll say, as [Mark] Oppenheimer [in an article for Time] does, that taxpayers are “subsidizing” churches, that ministers make fat-cat six-figure salaries, and that government should get those rich priests and preachers off the government dole.
Rather than try to rescue tax-exempt status for organizations that dissent from settled public policy on matters of race or sexuality, we need to take a more radical step. It’s time to abolish, or greatly diminish, their tax-exempt statuses.
McGurn, for his part, doesn't jump to the conclusion that such arguments will prevail. After all, free-exercise rights are guaranteed under the U.S. Constitution. But a newly-found constitutional right to gay marriage is on a collision course with religious freedom, and there is every reason to expect that this battle will get very nasty quickly — as Oppenheimer's column suggests.
[Update: A legal source just contacted me to corract part of McGurn's argument.
"McGurn [on conscience protections in Roe] is not quite right: these protections weren’t built in to the decision; they had to be passed by Congress and legislatures,"]