The Supreme Court’s recent same-sex marriage ruling left many conservative Christians steamed, with some calling for new constitutional amendments and others urging resistance against America’s new legal reality.
But many leaders on the religious right accepted defeat quietly, embraced their new underdog status, and began coalescing around an invigorated crusade for “religious liberty,” with a strategy modeled on the very social movement that just beat them in court: gay-marriage advocates.
“Same-sex marriage has been the looming cultural issue of the moment,” said Phillip Bethancourt, executive vice president of the Ethics & Religious Liberty Commission, an offshoot of the right-leaning Southern Baptist Convention. “Religious liberty issues are the next horizon.”
The religious right rose to prominence in American politics in the 1980s, under the banner of Jerry Falwell’s now-defunct “Moral Majority.” But now, Bethancourt said, conservative Christians have become a “moral minority” living in a “post-Bible belt” America that discriminates against them.
Justice Samuel Alito employed similar rhetoric in his same-sex marriage dissent, warning that Justice Anthony Kennedy’s sweeping decision will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” Justice Clarence Thomas agreed, writing in his own dissent that the ruling could have “potentially ruinous consequences for religious liberty.”
“It seems like the oppressor is now taking on the mentality of the oppressed,” said Brandan Robertson, a self-described evangelical who supports same-sex marriage.
A number of Republican presidential candidates have echoed those arguments following the high court’s decision.
Louisiana Gov. Bobby Jindal told Fox News that “already Christian businesses are facing discrimination if they don’t want to participate in wedding ceremonies that violate their sincerely held beliefs.” Former Arkansas Gov. Mike Huckabee similarly warned in a USA Today op-ed of businesses “economically terrorized” for their beliefs and the ruling’s coming “collision with the First Amendment guarantee of religious liberty.”
Similar worries about the plight of religious dissenters surfaced sporadically before the court’s decision — mostly in states with gay marriage and LGBT anti-discrimination laws or occasionally on a national scale, in reference to debates over abortion and contraception. But now, longtime evangelical leader Gary Bauer said, there’s widespread consensus among conservatives that “the next battlefield is protecting religious liberty,” with a particular emphasis on Americans whose religious beliefs prevent them from partaking in same-sex marriage ceremonies.
In the wake of the court’s decision, the religious right has already begun pushing new religious freedom laws and executive orders in state governments specifically targeted at preventing state agencies from penalizing businesses and individuals who refuse to participate in gay weddings.
Kansas Gov. Sam Brownback became the first Republican politician to take action, issuing an executive order Tuesday that forbids the state government from penalizing any religious leader or organization that refuses to participate in a same-sex marriage. In a statement accompanying the order, he cited a need to “protect against any infringement” of the “right to worship according to ‘dictates of conscience’.”
Unlike Indiana or Arkansas’ controversial religious freedom bills, which drew fire nationally for broad language that potentially extended to lawsuits between private individuals and businesses, Brownback’s order specifically dealt with government penalties for those who refuse to recognize gay-wedding ceremonies. The order made direct reference to Obergefell v. Hodges, the Supreme Court’s gay marriage decision, as an “imposition” that “poses potential infringements on the civil right of religious liberty.”
And in Congress, more than 100 members have followed suit by cosponsoring the First Amendment Defense Act, which would prevent the federal government from revoking the tax-exempt status of religious organizations that do not recognize same-sex marriages. The bill speaks to fears fueled by President Obama’s own solicitor general, Donald Verrilli, who said during Obergefell’s oral arguments that non-cooperative religious organizations’ tax-exempt status is “certainly going to be an issue” for the court in the future.
A number of religious conservatives told POLITICO that the key to winning these upcoming legislative and legal battles will be employing tactics refined by the same-sex marriage movement that recently defeated them.
“[LGBT activists] did a good job of making the stories of peoples’ lives front and center and saying, ‘Look at how these people are affected,’” said Travis Weber of the Family Research Council. Groups like Freedom to Marry and the Human Rights Campaign used social media to promote popular gay and lesbian celebrities’ viewpoints and encouraged Americans to look to their LGBT neighbors asking for acceptance.
Conservatives should follow suit, Weber said, by highlighting the stories of religious individuals he said had been “demonized,” pointing to businesses like Sweet Cakes by Melissa, an Oregon bakery that was fined $135,000 for refusing to bake a wedding wake for a lesbian couple, or the Odgaard family, who shut down their Iowa bistro after a legal battle over their refusal to host a same-sex wedding. These cases, he believes, can serve as the same sort of compelling hook that Justice Kennedy used by putting James Obergefell’s heartfelt story of losing his husband at the beginning of his decision.
Another cue conservative Christians are taking from their Obergefell defeat: Don’t focus too heavily on gay and lesbian peoples’ sex lives. Instead, focus on religious liberty issues that have nothing to do with the bedroom.
“When sexual liberty and religious liberty are at odds with each other, in our culture, oftentimes sexual liberty prevails,” Bethancourt said, noting that the same-sex marriage movement was ultimately successful in highlighting families seeking parental rights and access to loved ones in the hospital.
Bethancourt’s group wrote an amicus brief for the Supreme Court on behalf of a young Muslim woman who was denied a job at Abercrombie and Fitch on the presumption that she would not take off her head scarf during work. The case, he noted, was a clear-cut issue of religious liberty without an alienating sexual component, and it also allowed his movement to partner with other religious groups so that religious liberty arguments were no longer tethered to a particular denomination.
“People of faith have to stand together, they have to look out for each other,” Bethancourt said.
And there’s another lesson for religious conservatives: Build a diverse coalition. Bethancourt noted that progressive groups, from the NAACP to the ACLU, successfully expanded the base of support for marriage equality outside of traditional LGBT advocates.
But no matter how the Christian right evangelizes and markets itself, many same-sex marriage advocates see it as nothing more than bigotry in sheep’s clothing.
The religious right has employed the “language of apocalyptic impending doom” because “religious leaders realize they’re losing their base,” said Robertson, who characterized the right’s narrative as: “We’ve lost our position of influence in our country, we’re now a minority, and [thus] persecution is coming.”
“LGBT activists [were] saying, ‘Treat us the same as everyone else’ for a long period of time, and conservative Christians are [now] saying, ‘What we want is a carve out so we are exempt from parts of civil law,’” said Clyde Wilcox, a professor at Georgetown University who wrote “Onward Christian Soldiers: The Christian Right in American Politics.”
Whether the Christian right succeeds in securing new protections depends largely on how much the American public buys into their stories of persecution, said Michael Moreland, a former White House aide to George W. Bush.
“Each side is trying to lay claim to the language of discrimination,” which he said is “a very powerful tool” in American politics because it’s “deeply shaped by the civil rights movement.”
“Everyone’s kind of waiting now to see how this plays out. It could play out as race discrimination did, where understandably you had a national consensus come together very quickly about the intolerability of racial segregation,” he said. “Or it could end up being like abortion, where you have a constitutional right but a lot of exemptions,” earned through legal and political fights by a still formidable pro-life movement.
“A very narrowly crafted religious protections argument can be very successful,” Wilcox said, but overreach like in Indiana will push the public away. “Conservatives need to watch out.”