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A decade later, same-sex marriage tide has almost completely turned

Opponents who claimed victory with state bans in 2004 are now mostly conceding defeat

In a December 2004 interview with the evangelical magazine Christianity Today, James Dobson, founder of Focus on the Family, celebrated the recent passage of same-sex-marriage bans on ballots in 11 states. The groundswell of support for these measures, he contended, was driven by a case decided earlier that year by the Massachusetts Supreme Judicial Court in Goodridge v. Department of Health, which made Massachusetts the first U.S. state to permit same-sex couples to  marry.

“Mainstream Americans began understanding the urgency of these threats,” Dobson told the magazine, “and ultimately decided that they could not stand idly by while the radical gay agenda was forced down their throats.”

But now, 10 years after opponents of same-sex marriage believed they had launched a successful counterattack on the Goodridge ruling, they find themselves facing an extraordinarily rapid reversal of public opinion and legal precedent.

“It’s time for social conservatives active in politics to start thinking about what the post-SSM landscape looks like,” columnist Rod Dreher wrote in The American Conservative in March, acknowledging that even within the conservative movement, many libertarians are trending toward approval of same-sex marriage. “This was a major battle … and we lost it decisively.”

A decade after Massachusetts issued its first marriage licenses to same-sex couples on May 17, 2004, 17 states and the District of Columbia recognize marriage equality, and a record-high 59 percent of Americans support same-sex marriage. Following the Supreme Court’s ruling last year in United States v. Windsor, which struck down part of the federal Defense of Marriage Act, seven U.S. district courts have invalidated all or parts of their states’ same-sex marriage bans, and the Supreme Court will likely decide the issue in one or more of those cases.

We have lost American culture, no question about it, so we have to find ways to protect our institutions and our religious liberties in the new settlement.

Rod Dreher

columnist, in The American Conservative

The first court to do so was in Utah — one of the 11 states whose citizens voted to ban same-sex marriage in the 2004 wave. The state’s law blocking marriage equality, the court held, “deny [the state’s] gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason.”

After courts in six other states (Oklahoma, Virginia, Texas, Michigan, Arkansas and Idaho) followed suit and judges in Indiana, Kentucky, Ohio and Tennessee limited the application of same-sex marriage bans, the reaction of many conservatives has been not to give up but to regroup — legally, culturally and politically.

‘Terms of our surrender’

On the legal front, despite Justice Antonin Scalia’s admission in his dissent in Windsor of how it would be “inevitable to reach the same conclusion with regard to state laws denying same-sex couples marital status,” many conservatives still dispute the inevitability of marriage equality. The Supreme Court, they say, may refuse to invalidate bans on same-sex marriage and leave the matter for states to decide.

“I don’t think they [the district courts] are accurately reading Windsor, so it will be interesting to see what the Supreme Court does,” said Kellie Fiedorek, an attorney specializing in marriage and family at the conservative Christian legal firm Alliance Defending Freedom (ADF), which is representing court clerks in two of the cases. “The only thing that is inevitable right now is that this issue will be back before the Supreme Court.”

ADF argues that Windsor invalidated a federal law only, and Fiedorek maintained that the ruling should not apply to state laws.

If the court were to hold that bans on same-sex marriage violate the Constitution, Fiedorek said, “you’d basically have the Roe v. Wade of marriage.”

But those who suggest that marriage equality is inevitable are contemplating what conservative New York Times columnist Ross Douthat has described as “the terms of our surrender.”

Dreher also acknowledged, “We have lost American culture, no question about it, so we have to find ways to protect our institutions and our religious liberties in the new settlement.”

The ‘Benedict option’

Dreher has written about the “Benedict option,” hotly debated among conservatives, in which social conservatives would maintain their opposition to same-sex marriage in their own communities despite its being legal and accepted in mainstream society.

Chad Pecknold, an assistant professor of theology at the Catholic University of America, said it is a “misunderstanding to categorize” the Benedict option “as an ethic of withdrawal or a separatist movement. It is better to think of the Benedict option as a long-range strategy for changing the culture precisely by being a communal sign of contradiction to certain decadent aspects of the culture.”

He maintained that despite “the elite theoretical and legal project of imagining marriage to be different,” the “conjugal union between a man and a woman” remains “the majority position in practice.” As a result, he said, “defenders of traditional marriage need not retreat into the narrative that their view is a minority position, but I agree that they do need to become a creative majority capable of staying with the argument.”

What that would look like, though, is still unclear, because, Pecknold said, “these issues are so new to us and the cultural shift has been so rapid.”

Maggie Gallagher, a co-founder of the National Organization for Marriage, which has sought to prevent marriage equality since 2007, said opponents of same-sex marriage face a “challenge”: “How do we live these views ourselves and transmit them to our children while the dominant culture and the law are describing these views as evil, as the moral equivalent of racism in the public square?”

Fight continues for some

Gallagher is now a senior fellow at the American Principles Project, a conservative think tank founded by Robert P. George, a leading conservative intellectual who advocated for civil disobedience by conservative Christians against the legalization of same-sex marriage in his 2009 manifesto, the Manhattan Declaration. She added that responding to that challenge “requires not one thing but many things,” including protecting “traditional believers” from what she described as “punishment” for their views — particularly, she said, being fired or demoted at work.

Some evangelical leaders have highlighted their abandonment of inflammatory rhetoric like Dobson’s in 2004 — although not their opposition to same-sex marriage. Russell Moore, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, said in a forum hosted by the Ethics and Public Policy Center in March that in evangelical churches, he “almost never hear[s]” the “the evangelical belligerence” that in older generations “spoke, for instance, about the gay agenda, in which there was this picture, almost as though there is a group of supervillains in a lair, plotting somewhere the downfall of the family.”

Despite Moore’s optimism, anti-gay rhetoric remains commonplace in the religious right. Bryan Fischer of the American Family Association, for example, recently said on his radio show that heterosexuality and homosexuality cannot be equal, because “one is a normal expression of human sexuality” and “the other is a sexually deviant expression.”

Social conservatives continue to apply pressure on the Republican Party to maintain an anti-marriage-equality platform, despite warnings that it could alienate moderate voters.

Tony Perkins, president of the Family Research Council, a conservative religious advocacy group, recently said in a press release, “The vast majority of the GOP base continues to believe that marriage is a nonnegotiable plank of the national platform and want to see their elected officials uphold natural marriage as the national standard, a goal to stand for, encourage and promote in law.”

Portraying marriage equality as a threat to religious freedom continues to serve as a potent talking point and legislative strategy, for example in ongoing efforts to pass state laws that purport to protect the religious expression of same-sex-marriage opponents.

Same-sex marriage, said ADF’s Fiedorek, poses “serious threats” to the religious freedom of its opponents.

“Redefining marriage does implicate a whole range of issues and can potentially infringe on the freedom of Americans who believe kids deserve a mom and a dad,” she said. “We at ADF will continue to be on the front lines defending marriage and defending the freedoms protected in our Constitution.”

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