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.
Nonetheless, these cases all involved religious people dragged unwillingly into the recognition of gay unions—seemingly putting the lie to the idea that allowing gays to marry would not affect anyone else. In the words of conservative commentator Matt Lewis, it seemed the gay-rights movement’s demand had gone from "leave us alone!” to "bake us a cake!” And if you didn’t, they’d haul you into court.
The spate of state-legislative proposals that cropped up across the country was the religious right's response to this perceived intrusion on their right to be left in peace. (Never mind the fact that most of them were proposed in states without sexual-orientation discrimination bans, so their bakers, photographers, and florists were already free to turn same-sex couples away.) By standing up for religious freedom and for the "victims" of gay marriage, opponents would finally be able to turn the tide of public opinion that had been rapidly trending against them.
"People of faith are being targeted and punished for believing in the historic, Judeo-Christian definition of marriage," Schubert told me recently, as the Arizona debate was percolating. Activist judges and the Obama Administration, he added, were trying to impose their will on an unwilling country. "That's got to stop. It's not only appropriate, it's essential that legislatures and the Congress move to protect the rights of people of faith." It wouldn't be the first gay-marriage backlash: In 2010, Iowa voters ejected three justices after the state supreme court unanimously ruled in favor of gay marriage.
But what happened in Arizona and elsewhere suggests that this time, the social conservatives badly misread the situation. The Arizona bill ignited a raucous debate in the media, with one side claiming the issue at hand was discrimination while the other insisted religious liberty was at stake. And in the end, lawmakers and the public decided they cared more about protecting gays from discrimination than protecting florists and bakers. In the wake of the Arizona debate, 69 percent of Americans said businesses shouldn't be allowed to refuse service to gays for religious reasons, including 56 percent of Republicans. In Arizona, 72 percent supported Brewer's veto. There's no sign of a reversal in the trend of increasing support for gay marriage, which stood at 59 percent of Americans in a recent ABC News/Washington Post poll.
"Our opponents have picked the wrong argument," Marc Solomon, the political director of Freedom to Marry, told me. "This is about discrimination, and it's an argument our country's been through before about whether it's appropriate for businesses to decide not to serve certain people because of who they are .... When you put an 'open for business' sign on your door, you're open for business to everybody."
Even if you agree with this argument, it is a slightly more in-your-face stance than activists have previously felt was politic for them to take. It is a tacit acknowledgement that the rights sought by gays and lesbians may require some accommodation by the rest of society. But what Schubert and the religious right appear to have gotten wrong was that the broader public isn't up in arms over these "consequences." The backlash they believed would greet the imposition of gay marriage in red-state America has fizzled. Even in the South, America's most conservative region, 48 percent now support gay marriage.
Of the dozen states that were considering Arizona-like bills, only Mississippi is still actively debating it, according to Sarah Warbelow, state legislative director for the Human Rights Campaign. The Mississippi house of representatives has proposed dramatically narrowing a broad bill that unanimously passed the state senate and delaying its implementation for a year. All the other states appear to have dropped similar efforts in the wake of the Arizona debate.
The gay-rights landscape is changing fast, and that's naturally disconcerting for a lot of people. "We understand that this can be hard for individuals," Warbelow told me. "Change is always difficult." But in 2014, we seem to have reached a tipping point in America’s acceptance of gay unions: As same-sex marriage spreads and becomes a part of more and more people’s lives, most Americans aren’t lashing back. They’re welcoming it.
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