The Religious Right's Failed Gay-Marriage Backlash

In states like Arizona, social conservatives hoped to push back against the rising gay-rights tide, but lawmakers and the public sided against them.

Frank Schubert tried to warn us. In 2012, after voters in four states took the side of gay marriage in ballot initiatives, Schubert, a consultant working for the National Organization for Marriage, was sure they would live to regret their choice.

"A raft of problems will appear that we'll be able to point to,” Schubert told me back then. "The truth of the matter is that same-sex marriage creates a host of conflicts with people who disagree with it. That's just a fact. You will start to see wedding photographers sued and fined, innkeepers put out of business, churches sued, small businesses sued. Then people will say, 'Whoa, I didn't think this was going to happen.'”

In a way, Schubert’s prediction has come to pass. But politically, it hasn’t gone down the way his side hoped.

Clashes like the ones he anticipated between venders claiming religious liberty and gay couples seeking services have indeed cropped up, though there have been only a handful and they’re not directly connected to the legality of gay marriage. But the backlash that gay-marriage opponents expected as a result does not appear to be materializing. Instead, in states like Arizona, Mississippi, and Kansas, lawmakers have largely backed down from attempts to protect religious dissenters after a national outcry branding the bills discriminatory.

Most famously, Arizona's Republican governor, Jan Brewer, vetoed that state's Senate Bill 1062 late last month, saying it had the potential to "divide Arizona in ways we cannot even imagine" and that while "religious liberty is a core American and Arizona value, so is non-discrimination."

This is not the way social conservatives expected this debate to play out. Bills like SB 1062 cropped up in 12 different legislatures this year, most of them solidly conservative states where proponents didn't foresee any political obstacles to their new, proactive front in the war for "traditional marriage."

After all, as American public opinion has rapidly turned to favor gay marriage in recent years, a key to the issue’s political success has been convincing people it will not affect them—that there is no "homosexual agenda” to conscript their children, and that their lives, their marriages, and their churches will stay the same if the state begins to recognize the relationships of gays and lesbians.

Schubert knows how powerful an argument this is, which is why his campaigns have worked so hard to knock it down. In 2008, working for Proposition 8 in California, he made ads that claimed children would be taught about gay marriage in school. In 2012, running the anti-gay-marriage campaigns in Maine, Maryland, Minnesota, and Washington, his ads featured an innkeeping couple in Vermont complaining they were sued by a pair of lesbians for "not supporting their gay wedding because of our Christian beliefs.” The message: If you voted to legalize same-sex marriage, the gays weren’t going to line up peacefully at the courthouse. They were going to barge into your home and make you go along.

Gay-marriage proponents also understood how damaging this notion could be to their cause. To combat it, they crafted same-sex-marriage laws with explicit carve-outs for churches and clergy, so that no priest, minister, or rabbi could be forced to officiate a gay wedding and no house of worship would be forced to host one. Ads in favor of gay marriage stressed the notion that parents would be free to shape their kids’ values and no one would take that away from them. Assurances like these made it harder and harder for people to believe the religious right's insistence that allowing gays to marry would somehow harm everyone else.

A few months after those four gay-marriage ballot initiatives triumphed, the Supreme Court struck down the Defense of Marriage Act and Proposition 8. Justice Anthony Kennedy, writing for the majority, claimed the decisions were not an attempt to impose same-sex marriage nationwide. But dissenting Justice Antonin Scalia warned that that would inevitably follow from the majority’s reasoning. "It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it,” Scalia wrote.

In the ensuing months, court after court—six so far—would strike down state bans on gay marriage, making the practice legal in such unlikely locales as Utah, Texas, and Oklahoma. (Many of the decisions are stayed pending appeals and have yet to take effect.) All the decisions based their reasoning on what Kennedy had written in the Supreme Court’s DOMA decision. It’s beginning to look like Scalia was right: Striking down DOMA opened the door to legalizing gay marriage in every state.

Like Scalia, Schubert believes his warnings are being borne out. In three high-profile cases, business owners with religious objections to gay marriage—a photographer in New Mexico, a florist in Washington state, and a baker in Colorado—have been sued for refusing to provide their services to gay celebrations, and have lost. Technically, these cases are not about gay marriage per se: Same-sex marriage isn’t legal in Colorado and New Mexico, where the couples in question were celebrating non-marriage commitments. All three states (plus Vermont, home of the Christian innkeepers) have laws that bar discrimination on the basis of sexual orientation; those laws were the basis of the courts’ decisions, not the Supreme Court's marriage decision or other gay-marriage jurisprudence.

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Molly Ball is a staff writer covering national politics at The Atlantic.

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