Briefs are pouring in defending state bans on same-sex marriage in advance of a landmark Supreme Court hearing later this month. It’s an interesting exercise to read them side by side with defenses of Indiana’s controversial Religious Freedom Restoration Act. It’s virtually impossible to reconcile the two types of arguments, even though the same groups that pushed for the same-sex-marriage bans are also pushing for the new state RFRAs. Squaring the arguments proffered in each situation is a mind-melting proposition, and it becomes even more challenging when you realize that in both cases, the pretext is often louder than the text.
Opponents of marriage equality stopped arguing some time ago that same-sex marriage was sinful or too immoral to tolerate. The arguments now range from states’ rights justifications to claims about optimal child rearing to the need to preserve marriage for heterosexuals. With similar attempts at subtlety, the religious liberty justifications for RFRAs are not presented publicly as affording a license to discriminate. They are swathed instead in arguments about recalibrating the freedoms of believers. And yet—strip away all the justifications—and excluding gays and lesbians seems to be precisely the impetus for the passage of these newer laws. And because nobody wants to say so, the pretexts collide.
Opposition to marriage equality and the passage of Indiana’s capacious new RFRA are inextricably connected. As Tobin Grant argues: “Indiana enacted its law after the federal courts ruled that same-sex marriage was now legal in the Hoosier state. … RFRA was seen as a way to give residents and businesses that objected to same-sex marriage a way around having to cater to same-sex couples.” And yet nobody—or at least nobody who doesn’t make pizzas—seems to want to fess up about the real reason for the sudden burning need for these new, turbocharged RFRAs, much less admit that they are aimed at the same group as the marriage bans.
Because the proponents of both types of exclusionary measures obscure their intentions, the result is confusion and contradiction, especially when you attempt to parse the justifications as offered. In effect, the marriage ban argument is that gay and lesbian couples need no special protection. In effect, Indiana and other states’ RFRA efforts are proof that this is a fiction.
Take for instance the argument, put forth in the brief just filed by the director of the Ohio Department of Health, explaining that there is no such thing as anti-gay discrimination anymore. This matters because only groups that have historically been subject to discriminatory treatment warrant “heightened scrutiny” in the courts. Ohio thus seeks to argue that gays and lesbians have not been relegated to such a “position of political powerlessness” so as to have no ability to “attract the attention of lawmakers.” According to the analysis in the Ohio brief, gays and lesbians aren’t powerless. In fact, they are extra-powerful.
The argument is hard to reconcile with the fresh wave of so-called religious liberty bills. Indiana’s passed and was signed into law, and Arkansas’ made it through the Legislature but was sent back by the governor. Similar bills are teed up in Georgia and North Carolina, among the 12 states that introduced just such legislation this year. It’s hard to argue out of one side of your mouth that gay couples have outsize power at the ballot box while acknowledging on the other side that many people want to enshrine in law that they need not serve them.
Take also the argument offered in a brief filed by the governor of Michigan, which my friend Joe Miller of the University of Georgia has dubbed the “Whoopsie, Baby” argument. It claims there is a rational reason to withhold marriage from same-sex couples, and it is this: Marriage needs to be reserved as the special domain of straight people because they’re the reckless sorts who can get each other accidentally pregnant. Got a whoopsie baby? Better get going to the chapel. The argument holds, further, that if same-sex couples had access to this accidental-baby door prize—um, this privileged marital status—it would make straight couples less apt to marry. (I know, right?) Or as Judge Richard Posner put it, in dismissing this argument before the U.S. Court of Appeals for the 7th Circuit this past fall: “Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.”
Michigan makes a version of this same argument in its brief in the marriage-equality cases: “The sexual union of a man and a woman produces something more than just an emotional relationship between two people—it produces, without the involvement of third parties or even a conscious decision, the possibility of creating a new life. Michigan’s marriage definition is designed to stabilize such relationships, to promote procreation within them, and to be the expected standard for opposite-sex couples engaged in sexual relations.” Whoopsie, baby. Under this theory, marriage is a stick, something to browbeat all the reckless straight people—no discrimination intended.
But read that alongside Indiana’s defense of religious liberty, which welcomes religious people (including corporations) to refuse services to same-sex couples not because they are super-awesome pregnancy avoiders (as the Michigan brief suggests) but because a shop owner’s religious beliefs hold them to be sinners. Pressed by ABC’s George Stephanopoulos on Sunday to explain whether the new RFRA legalizes anti-gay discrimination, Gov. Mike Pence declined to answer at least six times. Which is it? Are gay couples responsible citizens? Or can they be refused service because some Americans don’t like them? Which is it? Go figure.
Why do these contradictions matter? Why does it matter that just as states defending marriage bans are attempting to argue that gays are powerful and wonderful and in no need of special constitutional solicitude, state after state is attempting to pass supersize laws allowing bakers, photographers, and pizza spinners to exclude them? This matters because it highlights the falsity behind the arguments made by those who support exclusion. These arguments may be made in good faith and from deep religious conviction, but they self-destruct on closer examination. Opponents of gay rights need to pick an argument, and it can’t be that gays and lesbians are so awesome that we have the right to exclude them.
The fate of marriage equality may well rest in the hands of Justice Anthony Kennedy, who cares deeply about human dignity, when this issue comes to the Supreme Court. And Kennedy is well aware of what’s playing out this week in Indiana and Arkansas. This massive push for legislation that would protect religious discrimination and allow it to trump fairness is taking place at a remarkable moment in American constitutional history, and it may well color Kennedy’s decision. He can choose to pay no attention to the non-answers and misdirections of Pence and of those who insist that this isn’t about animus to gay and lesbian Americans. Or he can see what is now playing out in Indiana and Arkansas as evidence that the arguments against marriage equality cannot be squared by the world in which we still live.