Yesterday, the US Supreme Court announced two decisions that will impact the national debate over gay rights: First, it required Arkansas authorities to "list the names of both same-sex parents on their child's birth certificate," according to NBC News. This 6-3 decision stems from the Court's landmark 2015 Obergefell ruling, which established a nationwide constitutional right to marriage for same-sex couples. The majority in that case mandated that gay partners be afforded the full "constellation of benefits" associated with marriage, a category into which the birth certificate issue fell. Regardless of one's views on Obergefell -- I was personally supportive of the result, without being entirely convinced by the underlying legal reasoning -- it is now the precedent-guiding law of the land, so the Arkansas case appears to have been decided correctly.
Second, SCOTUS announced its intention to hear a religious liberty case involving a Colorado bakery, owned and operated by orthodox Christians, that was found to have violated the state's public accommodations law by declining to prepare a cake for a same-sex wedding reception. As we consider the ramifications of that case, which will be one of the most closely-watched and hotly-anticipated items on the Court's docket next term, let's take a look at some new, related public opinion data from Pew Research. Fueled by growing acceptance across nearly every demographic, support for same-sex marriage has now hit an all-time high in America:
As you can see, the reversal on this question over the past decade is staggering. In 2007, an outright majority of Americans opposed gay marriage; today, just under one-third oppose it. This represents a 47-point swing in the span of just ten years. Self-identified Democrats have moved from roughly evenly split on the issue (49/42) to overwhelmingly supportive (76/19). The shift among Republicans has been even more pronounced:
Pew measures a 52-point swing toward supporting gay marriage in the last ten years...among *Republicans.* pic.twitter.com/LyJWKZxmDu— Guy Benson (@guypbenson) June 26, 2017
Conservative members of the oldest living generation haven't moved much on the question -- and while it's clear that a large minority of Republican boomers now favor such unions, it's been younger conservatives who have spearheaded these dramatic changes:
Opponents of gay marriage will argue, correctly, that public opinion neither alters core principles, nor determines moral rectitude. Until very recently, supporters of gay marriage advanced similar points in the face of daunting polling. But the fresh data does help illustrate a few political realities: (1) the seismic generational change currently under way will at some point (tick tock) render the current GOP platform untenable, and (2) the Supreme Court's decision on this issue is much more reflective of -- and seems to have exerted more of a solidifying effect upon -- public opinion than its abortion activism in the 1970s, which remains highly controversial and divisive to this day. These fresh data points are yet another example of how the top two "social issues" do not come as an ideologically-predictable package deal any longer, as many younger Americans reconcile pro-life and pro-LGBT views through the prism of human rights. Mary Katharine Ham and I explored some of these developments further in our book, End of Discussion (with an updated paperback edition coming August 1st). We also delved into tensions surrounding gay marriage and religious freedom in a chapter entitled, "Bake Me A Cake, Bigots," which seems especially relevant in light of the Supreme Court's decision to grant cert in the aforementioned Masterpiece Cakeshop case.
As young conservative supporters of same-sex marriage who believe the Republican Party must grapple with the evolving views of the electorate on this issue, we've also staked out a consistent position in favor of religious liberty. Now that gay marriage has prevailed nationally, it is important for our system to protect the conscience rights of traditionally-minded religious people -- Muslims, Jews, Christians, and others -- who cannot personally endorse such unions as a matter of faith. We also chafe at the alienating premise under which all opposition to expanding marriage is framed as "hate." Speaking for myself, I do not believe that any of this means that small, closely-held businesses (as outlined in the Hobby Lobby ruling) ought to be able to discriminate against same-sex patrons as a matter of course. Businesses should not be allowed to deny basic services to gay people just because their employees or owners have religious objections to homosexuality. Many Americans may not realize that outright discrimination against LGBT people on matters of employment, housing and public accommodation remains very much legal in a majority of US states. This is unjust, and must change.
I also believe, however, that carve-outs for wedding industry-specific small businesses would be a reasonable accommodation that could help facilitate a public truce on these thorny and emotional questions. Asking a religious baker or florist or photographer to serve gay clients in general is entirely appropriate under a fair understanding of public accommodation laws. Yes, I recognize that a more libertarian approach would involve permitting any and all discrimination, then letting market forces like boycotts and protests sort things out. The trouble is that this path has proven fraught with unhinged nastiness, fact-averse emotionalism, and ugly mob rule, exacerbating social tensions over these challenges, rather than nudging society toward a peaceable compromise.
That is why I've been more inclined to endorse broad anti-discrimination protections for the LGBT community, with broad exceptions for religious institutions (encompassing houses of worship in addition to religious schools, hospitals, charities, etc), and narrow exemptions for small businesses adjacent to the wedding industry. Because the institution of marriage is inherently religious and sacred to many believers, the government should not coerce a Muslim baker, or an orthodox Jewish florist, or an evangelical photographer into applying their creative talents and service to an event that fundamentally offends their religious beliefs (this does not apply, I should add, to government employees). Here's how the proprietor of Masterpiece Cakeshop described his attitude on the predicament he faced, very similar variations of which have bubbled up in legal fights along these lines across the country:
As the victors in this "culture war," gay marriage proponents would be well-served to allow dissenters a reasonable sphere of autonomy and breathing room to "opt out," as a modest concession in their overall "terms of surrender." But in light of too many 'sore winners' appearing intent on exacting ideological revenge, the Court -- which has established a laudably strong record on First Amendment issues in recent years, ranging from speech to conscience protections, to debates over free exercise -- will have a chance to protect the constitutional rights of all involved parties. I hope a majority of justices seize this opportunity. I want to live in an America where gay people (like myself) can live our lives in peace, free to marry, and free from systemic legal discrimination -- and where people like this nice lady can live in peace, free to run her business without threat of government-imposed economic ruin due to her deeply-held religious convictions.
Legal protections against weaponized bigotry shouldn't be reserved for heterosexuals in this country, just as people of faith shouldn't be effectively barred from operating small businesses because they're unwilling to actively contribute to same-sex weddings through their professional creative expression. In 2017, it's indisputable that the number of these 'conscientious objectors' within the wedding industry is limited and dwindling, so seeking and singling them out for legal retribution feels gratuitous and wrong. As the charts above demonstrate, gay marriage supporters have done an exceptional job of winning hearts and minds over a very short period of time. Maintaining a course of magnanimity and persuasion (which can entail the simple but impactful act of living openly in one's community) is the best way forward, in my view. This will sometimes require accepting that not everyone can or should be forced to comply with the new cultural norm in every public-facing facet of life. In a free and pluralistic nation, we should embrace measured, equitable coexistence over coercion -- especially on matters pertaining to the Bill of Rights' first freedom. Speaking of hearts and minds, I'll leave you with this moving pro-'marriage equality' ad out of Australia:
A final note: The photo accompanying this piece is from 2015. Thus far, the Trump White House has not formally acknowledged pride month, although some elements of his administration have. Trump is also unquestionably the most overtly pro-LGBT rights president in Republican history, for what it's worth. Have his ambivalent-to-supportive views on gay marriage helped move his supporters on this issue?