Last week forty-seven Republicans in the House joined the majority to pass a bill requiring all state governments to extend “full faith and credit” to all marriages lawfully procured and executed in any other state. The Editors of National Review denounced the House Republicans who supported the legislation and strongly urged Senate Republicans to oppose this bill.
“Republicans Should Reject the Gay-Marriage Bill”
National Review is the gold standard of conservative publications. If my relationship with the New York Times is Love in the Ruins, NR is a Love Supreme.
Founded by William F. Buckley in 1955, dedicated to “standing athwart history and yelling stop,” NR earned my fierce loyalty with their consistency, boldness, and wisdom over time. There have always been rough patches. The Trump Era continues to pose difficulties for almost every thoughtful conservative. NR rightly opposed the nomination of Donald Trump, fairly and accurately assessed his administration on a case-by-case basis dependent on his policies, and judiciously fostered an in-house debate regarding his reelection in 2020. Along the way, from both ends of the Trump spectrum, they lost some marquee names: Jonah Goldberg, David French, Victor Davis Hanson, and insider Jack Fowler. More recently NR’s coverage of the January 6th investigations lends moderation and good sense to a public discussion often blinded by partisanship and bereft of rationality. Weathering the loss of talented favorites, and a division among the conservative faithful, NR transcends personalities and ideological squabbles. Writers, politicians, and popular movements come and go. NR abides.
Having said that, under the leadership of Ramesh Ponnuru, a longtime stalwart elevated earlier this year as the third editor-in-chief in the history of the magazine, NR seems less steady than the preceding Rich Lowry era. I like Ramesh a lot. And there is every reason to believe NR will continue to represent deep and thoughtful true conservatism. Having said that, the July 21 Gay Marriage Bill editorial represents a point of view less studied and defensible than I expect from NR.
Did National Review Get it Wrong on the Gay Marriage Bill? I hate to say it (and I worry about piling on)—but, YES, they did.
To their credit, from the outset NR commends the Article I branch for actual law making, a refreshing constitutional approach rather than “an edict from a judiciary usurping legislative authority.” Hear, hear. NR also warns that the bill may unintentionally empower plural marriage. Others have raised this issue, and it is not completely unfounded. The Senate should clarify the ambiguous language and send the bill back to the House where, evidently, with that change, it may well win even more Republican votes.
NR’s chief complaint against the bill is an ancient concern and an objection delivered repeatedly during the less gay 1990s: same-sex marriage defies the laws of nature and “biological realities of sexual dimorphism and complimentarianism.” With absolute sincerity, the Editors argue, “history, experience, and tradition” hath shewn that “marriage [properly understood] was meant to foster and support the bonds of the natural family.” By design, the traditional rules of marriage privilege a union between one man and one woman to encourage adults to arrange their lives around raising children. Not stated in the editorial, but, by inference, I also hear the echoes of “spiritual reality and transcendent truth.” As was true twenty-five years ago at the apex of this argument, the main thrust of the thesis is indisputable. The question then and now revolves around exceptions. We allow barren heterosexual couples to marry and adopt children (or not adopt children). While child-rearing clearly forms the core rationale for marriage, the state also affords all “complementary” couples all the privileges and immunities of marriage regardless of whether they produce children. Why deprive gay couples of a similar exception?
In essence, there are three contradictions to the NR case against same sex marriage.
1. “Same-sex marriage obscures the purpose of marriage” and diminishes all the virtuous architecture it purports to confide on society. On the following NR premise all social conservatives agree, the overall “weakening [of marriage] has generally been regrettable rather than laudable.” But, of course, NR casually admits, “same-sex marriage was not the first step” toward the desiccation of this vital social anchor. Far from it. The question of same-sex marriage arrived at the end of a decades-long assault on cultural norms. More plainly, after fifty years of moral upheaval, in which Christians and conservatives participated with gusto in the sexual revolution, it seemed strange to suddenly slam the window when gay Americans petitioned for accommodations similar to the moral easements granted to the majority. How could gay marriage significantly degrade an institution already in such disrepair?
Additionally, back in the late 1990s, some argued that gay unions might actually contribute to stability. From the view of the 2020s, this hope seems to have succeeded beyond the wildest projections. The stereotype of the promiscuous gay male has seemingly vanished from the culture. Adopting a child (or having a child by natural means) seems to be the ambition of a huge segment of same-sex couples. Time will tell, but we have no evidence that the instance of gay divorce or gay infidelity exceeds that of heterosexual couples. Again, it is early, but, seemingly, at worst, same-sex marriage feels neutral in the fight to resuscitate marriage–and, not inconceivable based on anecdotal evidence and cultural indicators, same-sex matrimony might even prove a positive in reinvigorating the dysfunctional institution. Seriously, are gays making marriage cool again?
2. “Should the federal government insist that states adhere to a [judicially imposed redefinition of marriage]?” A few problems in one contradiction. NR offers a slightly misleading narrative. The redefinition does not originate from the 2015 decision in Obergefell v. Hodges. Obergefell sprang from a long march against the heterosexual confines of traditional marriage that already existed in a significant minority of states. True, the High Court imposed that organic redefinition on all the states, but, in a furious realignment on this issue, wholly opposite from the fifty-year abortion controversy in the interval between Roe and Dobbs, public opinion dramatically embraced the view Obergefell put forward in the narrow 5-4 decision. Here the Editors seem to have it backwards. That is, in the current moment, rather than a contentious and divided electorate spoiling for a fight beneath a heavy-handed Supreme Court edict, Obergefell not only reflected a zeitgeist on the move at the time but, perhaps by happy coincidence, now coincides with a sizable majority of public opinion.
An Aside. Counting Votes as a Measure of Public Opinion. Why are Democrats pushing this bill in an election year? And why are so many Republicans quietly falling on their culture war swords and scrambling for cover? Because all these politicians can read a poll.
So, in terms of insisting and imposing, this measure is not really a question of partisan elites codifying judicial tyranny over the objections of a supine citizenry. The House bill reflects representatives enacting popular legislation on behalf, and at the behest, of a majority of their constituents.
And to the question of the proper role of the national legislature forcing states to adopt a singular definition of marriage, this framing is not exactly right either. In essence, the current Respect for Marriage Act is a conscious reverse imitation of the 1996 Defense of Marriage Act (DoMA). That federal law provided safeguards against abuse of the “full faith and credit clause,” the constitutional agreement among states to honor the “public Acts, Records, and judicial Proceedings of every other State” (including, of course, certificates of marriage). In 1996, red states worried that a small minority of progressive states like Massachusetts might prove a haven for gay couples intent on wedding under the auspices of one state and demanding recognition in the vast majority of states that prohibited gay marriage.
Another Aside. Compare the politics of 2022 versus 1996. DoMA attracted huge bipartisan majority votes: 342-67 in the House; 85-14 in the Senate. Without fanfare or publicity President Bill Clinton quietly signed the bill into law on September 21, but, illustratively, during his fall campaign for reelection, Clinton shamelessly ran ads touting the passage of the popular law.
For Republicans today who claim they are defending the Madisonian principle of federalism, frankly, I would have more sympathy for them if the Republicans of 1996 had not so joyously voted for DoMA. Was NR against a federal law wading into the business of states when a wave of public opinion flowed in their direction? As far as I can tell: No. But, now, in the name of federalism and state rights, conservative politicians are searching for a face-saving escape. In fairness to NR, the Editors stop short of promoting this diversion, but their ambiguity provides cover for members attempting to find a technical avoidance for this vote.
3. “The prospect of the Court reversing Obergefell is vanishingly small.” Maybe. But it strikes me as disingenuous to argue that Obergefell is “constitutionally dubious,” a judicial overreach, and a bad law that threatens the fabric of society, and then say to your opponents, don’t worry, the Court seems unlikely to notice.
As NR admits, Justice Clarence Thomas’s provocative listing of Obergefell with cases that rest on “substantive due process'' created this issue. Even as the majority emphasized, “[n]othing in [the] opinion should be understood to cast doubt on precedents that do not concern abortion,” this non-binding legalistic codicil offers little consolation to sophisticated court watchers. Thomas, the lion-hearted soul of this Court, is signaling that the innovative constitutional mechanism of substantive due process may be chugging inevitably toward its appointed conclusion (“substantive due process is is an oxymoron that lacks any basis in the Constitution”). Proponents of gay marriage set to strike legislatively with a favorable popular wind at their back would be more than foolish to place their faith in the indirect assurances of the Dobbs majority, trusting their fate to a Court skeptical of the foundation that undergirds the purported guarantee. NR’s assertion that proponents should “rest easy'' rings hollow.
The Heart of the Matter. The most compelling reason the Court would not overturn Obergefell revolves around “reliance interest.” We hear much about stare decisis. The entire common law tradition depends on “deciding like cases alike.” More to the point, Courts are not inclined to overturn precedent by which parties make long-term plans and undertake momentous decisions relying on legal codes and norms. We arrange our lives around these civic expectations. When we create the perception that fundamental law changes with the whims of a few elite law givers, we destabilize the rule of law.
Worth noting, Dobbs and Obergefell are different cases in terms of reliance. In addition to the question of a competing life interest in Dobbs, except for a brief window in the aftermath of the momentous decision, women will not plead before the Court that they entered into conception with reliance on their erstwhile constitutional right to terminate a pregnancy. On the other hand, since 2015, millions of Americans in good faith entered into perpetual same-sex marriage contracts. Any Court, in good conscience, would be loath to nullify all those acts of good faith and reliance.
Surely, NR understands this dependency on reliance, but, curiously, the Editors do not flesh out this key argument explicitly (or even implicitly). Why? Perhaps because it represents the best reason for a legislative guarantee that reinforces the ruling in Obergefell or, even better, renders the maintenance of the ruling unnecessary—and releases the issue from the substantive due process legal debate and ticking time bomb. Aside from his private views on same-sex marriage (whatever they may be), we can imagine Justice Thomas applauding a legislative remedy that relieves the Court of an unwanted role in this political question. For the Court, an act of Congress alleviates the choice between arbitrary protector of a reliance interest in this case versus jurisprudence in accord with a preferred framework of constitutional interpretation hostile to substantive due process.
In fairness, NR makes two important points worth incorporating. The language as it stands in the House bill leaves open the possibility of plural marriage (mentioned above) and also calls into question age of consent laws and “prohibitions against consanguineous marriages.” The Senate should tighten the language and close the unintended loopholes. Also, no small point, NR correctly observes that people of faith, “religious universities, schools, religious orders, and adoption agencies have faced all manner of legal threats” during the Obergefell era. Congress should clearly acknowledge religious institutions hold a constitutional right to reject same-sex marriage for theological reasons—in this bill or in companion legislation. The debate over same-sex weddings as they pertain to churches, ministers, and even individual believers should be one of individual conscience and corporate decision making. The state shall not compel believers into speech or acts or commerce that violates the free exercise of their faith.
A final NR caution rings true but remains of little consequence: “the point of this bill appears to be to demoralize social conservatives, to cast the opponents of same-sex marriage as a dwindling band of bigots.” The Democrats are trying to make us look ridiculous. And a party in our position cannot afford to be made to look ridiculous. The motivation for this bill, at least in part, surely, seeks to place Republicans on the hot seat in preparation for fall campaigns. But our actions are our actions. The question is fair. Do you support same-sex unions? If you don’t, say you don’t. If you do, say so. But let’s not have all these dodges. Declare your preference and state your case. And then "let justice be done though the heavens fall."
Practically, What Should Republicans Do?
A FALLBACK POSITION. Five Republican senators are already on board for this bill. The Senate managers, Maggie Hassan (D-NH) and Rob Portman (R-OH), are willing to deal. Republicans should demand the changes and accommodations necessary to strengthen the bill and protect religious freedom. They have the leverage.
Then Republican Senate Leadership should waive their prerogative to filibuster. Allow an up or down vote. Up until a few years ago this was how almost all business in the Senate was done. Allow senators to vote their conscience. My guess is there are somewhere between 8-12 GOP senators who would go on record in support of same sex marriage, if they hammered out the right wording.
Depoliticize. Detoxify. Win-Win.
And, if this turns out to be a mistake, we live to fight another day. No future session of Congress will be limited by the dead hand of a previous legislature.