WASHINGTON — Nine months after he officially endorsed same-sex “marriage,” President Barack Obama vowed to make that policy goal a top priority of his second term — a stance that has galvanized the Democratic base but stirred concerns from other quarters about the impact on religious liberty.
“It is now our generation’s task to carry on what those pioneers began,” stated Obama during a Jan. 21 inaugural address that outlined his goals on economic and social issues, as well as foreign policy.
“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law — for if we are truly created equal, then surely the love we commit to one another must be equal as well,” said the president, though his address provided no specifics on how he would advance equal rights for same-sex couples.
Obama equated the struggle to secure “marriage equality” with Rev. Martin Luther King’s crusade to win civil rights for black citizens, earning applause from the Human Rights Campaign, a leading advocate of same-sex “marriage.”
“By lifting up the lives of 'LGBT' [lesbian, gay, bisexual, transgender] families for the very first time in an inaugural address, President Obama sent a clear message to LGBT young people from the Gulf Coast to the Rocky Mountains that this country’s leaders will fight for them until equality is the law of the land,” said Chad Griffin, the president of the Human Rights Campaign, in a statement released after the inaugural address.
San Francisco Archbishop Salvatore Cordileone, the chairman of the U.S. Conference of Catholic Bishops’ Subcommittee for the Promotion and Defense of Marriage, responded to the president’s address with a statement that underscored the Church’s respect for the dignity of all persons, while insisting that the truth about marriage could not be changed.
“I honor the president’s concern for the equal dignity of every human being, including those who experience same-sex attraction, who, like everyone else, must be protected against any and all violence and hatred,” wrote Archbishop Cordileone in an email to the Register.
“But the marriage debate is not about equality under the law, but, rather, the very meaning of marriage. Marriage is the only institution that unites children with their mothers and fathers."
“Protecting this understanding of marriage is not discrimination, nor is it some kind of pronouncement on how adults live out their intimate relationships; it is standing for the common good,” he stated.
Archbishop Cordileone added that an urgent matter of justice was “the equal right of all children to grow up knowing and being loved by their mother and father. I pray for the president and for all our nation’s leaders, that they will grow to understand and support this enduring truth.”
Supreme Court Cases
Obama made his vow just months before the U.S. Supreme Court is set to hear oral arguments on two landmark cases that deal with legal challenges to the Defense of Marriage Act (DOMA) and California’s Proposition 8, which blocked same-sex “marriage” in the Golden State. The high court is expected to issue rulings on both cases by late June.
During the president’s first term, his administration announced that it would no longer defend DOMA, the federal law that defines marriage as a union between one man and one woman, and the White House approved a new policy allowing service members who are openly homosexual to serve in the military — a reversal of the so-called “Don’t ask, don’t tell” policy.
The policy shift on DOMA sparked protests from House Republicans, who said the administration had reneged on its responsibility to defend laws enacted by Congress. Meanwhile, Church leaders expressed concern that the repeal of “Don’t ask, don’t tell” would force military chaplains to violate their religious beliefs or resign from the armed services.
Now, in the wake of Obama’s 2013 inaugural address, both supporters and opponents of “marriage equality” expect that the White House could move on several fronts to fulfill the president’s pledge.
Bill Duncan, the director of the Marriage Law Foundation and a professor at The Catholic University of America School of Law, outlined a number of options available to the president in his second term.
“He can push for a repeal of DOMA and continue to interfere with its enforcement and/or defense (assuming that issue is not settled by the current case). He can, and may still in the Prop. 8 case, direct the Department of Justice to file briefs opposing state marriage laws (there are two other challenges to state laws on federal constitutional grounds pending in the courts),” Duncan told the Register.
“Given the president’s expansive view of executive power, it is not inconceivable the administration might try to create a marriage-alternative status like domestic partnership by executive order or by supporting legislation.”
Duncan also noted that the Obama administration could press the issue in international forums. The White House has already made the advancement of homosexual rights a top foreign-policy priority, and Duncan predicted that it might “weigh in on” the issue during “U.N. debates over whether marriage is discriminatory.”
What’s at Stake
As the president ponders his options, religious leaders and religious-liberty advocates will also be reviewing legal and legislative strategies for protecting their freedom to support traditional marriage.
Over the past year, Catholic leaders have strongly opposed the legalization of same-sex “marriage” on moral grounds, and “marriage equality” laws and anti-discrimination statutes that make sexual orientation a protected status have also had practical consequences for the free exercise of Catholic institutions.
In places like Boston, such statutes led the closure of Catholic foster care and adoption agencies that won’t place children with same-sex couples.
During the 2012 campaign year, as voters in four states considered a variety of measures dealing with “marriage equality,” Baltimore Archbishop William Lori, the chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty, warned that changing the nation’s marriage laws could result in severe penalties for Catholic institutions.
“The real threat lies in the area of licensing of Catholic Charities’ adoption agencies and accreditation of schools and universities that maintain their support of traditional marriage,” said Archbishop Lori in an interview with the Register just weeks before the election.
If DOMA was overturned, Archbishop Lori said, it was “not unthinkable that defending traditional marriage will be regarded as bigotry and hate speech and that all kinds of strictures will be placed on our schools.”
Robert George, a professor of jurisprudence at Princeton University and a leading Catholic public intellectual, has repeatedly contended that the legalization of same-sex “marriage” will have a dire impact on religious liberty.
At one time, advocates of legal marriage for same-sex couples argued that changing the nation’s marriage laws would have no impact on religious freedom, but now, George reported, those who object to same-sex “marriage” are being stigmatized and attacked for their beliefs. Indeed, just weeks before Inauguration Day 2013, the Christian pastor who had been appointed to offer the benediction at the public swearing-in ceremony stepped down following protests over an "anti-gay" sermon he gave in the mid-1990s that criticized the "homosexual lifestyle."
“[A]dvocates of redefinition are increasingly open in saying that they do not see these disputes about sex and marriage as honest disagreements among reasonable people of goodwill,” said George in a 2012 article posted on the Public Discourse website, “Marriage, Religious Liberty and the Grand Bargain.”
“They are, rather, battles between the forces of reason, enlightenment and equality — those who would ‘expand the circle of inclusion’ — on one side and those of ignorance, bigotry and discrimination — those who would exclude people out of ‘animus’ — on the other,” said George.
More Litigation Ahead
As the White House acts on the president’s pledge to advance equality for same-sex couples, the need for robust conscience protections has become more urgent, but hard to obtain.
Douglas Laycock, a top constitutional scholar who supports the legalization of same-sex “marriage” but who is also a strong proponent of religious liberty, told the Register that “same-sex ‘marriage’ is being proposed around the country with a minimalist exemption” for clergy who refuse to preside at weddings for same-sex couples.
“In every state so far, broader religious-liberty protections for religious institutions have been added. They are often thrown in at the last minute, badly drafted and deeply ambiguous. There will be litigation about what they mean,” said Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia School of Law.
Laycock noted that the slew of legal challenges to the federal contraception mandate filed by objecting religious institutions and business owners will preview the opposing arguments in future free-exercise cases dealing with “marriage equality.”
“Religious institutions will claim exemptions under the Religious Freedom Restoration Act (with respect to federal law) and under state free-exercise clauses and state RFRAs (with respect to state law). The litigation over the contraception mandate is a precursor,” explained Laycock, who won an unanimous decision in favor of religious liberty in the landmark 2012 Supreme Court case Hosanna Tabor v. EEOC.
But he cautioned that it was “hard to predict” the outcome of future litigation involving the free exercise of Catholic institutions resisting “marriage equality” laws. Further, he stressed that “individual citizens and small businesses have not been able to get explicit exemptions from same-sex ‘marriage’ laws anywhere.”
Outcome in Doubt
The outcome of the two marriage cases before the Supreme Court will help shape the strategy of church leaders and religious-freedom advocates, but few scholars are prepared to issue any predictions.
Supporters of “marriage equality” argue that their election-year victories have increased the likelihood that the high court will rule in their favor. However, Brian Brown, president of the National Organization for Marriage, noted that “the vast majority of states have codified the commonsense view held for thousands of years: that marriage is the union of a man and a woman.”
Now, those who oppose same-sex “marriage” will be asked to ratchet up their legal and legislative strategy, as well as their arguments, against any change in the nation’s marriage laws.
“Catholic leaders might well take a cue from Cardinal George of Chicago, who recently wrote that the Illinois Legislature could no more change the nature of marriage than it could repeal the law of gravity,” George Weigel told the Register.
Robert George, in his Public Discourse article on marriage, reminded his audience that a revolution in U.S. laws and opinion about marriage was not “inevitable.”
“Same-sex ‘marriage’ and the assaults on liberty and equality that follow in its wake are ‘inevitable’ only if defenders of marriage make their adversaries’ prophecies self-fulfilling ones by buying into them.”
Joan Frawley Desmond is the Register’s senior editor.