Eugene Volokh: One of Same-Sex Marriage’s Biggest Opponents

I remember several years ago the Volokh Conspiracy invited Maggie Gallagher as a guest poster. The commentariat ripped her apart. At the end, there was absolutely nothing left to her arguments. She answered no questions to anyone’s satisfaction, and she ended up just spluttering a lot and repeating herself. Great fun was had by all.

In the meantime, however, Professor Volokh has seen fit to qualify his support for same-sex marriage with so many scary caveats that any actual support has become increasingly difficult to believe. What’s worse, he’s started accepting the outright lies of the religious right, and claiming that they are actually reasonable objections to same-sex marriage. We should take the concerns of the far right seriously, he urges, if we want to win the battle. So let us worry a little more, and agitate a little less. Or maybe agitate a whole lot less.

Consider the following:

It would be a false comfort… to suppose that the gays-as-oppressors narrative can’t and won’t take root among moderates and thoughtful, mainstream conservatives — people like Michael Gerson and Peter Wehner, former Bush administration officials, who write, “If [gay] marriage is deemed to be a civil right — and if opponents are therefore deemed to be the equivalent of modern-day segregationists — churches may eventually be compelled to act in a way that complies with the spirit and letter of ‘anti-discrimination’ law rather than with orthodox Christian teaching.” Stated that way, the claim happens to be true.

No, it doesn’t “happen to be true” that churches may be compelled to comply with anti-discrimination law if same-sex marriage becomes legally available. At least not in any non-trivial sense; it also “happens to be true” that churches may be compelled to comply with Sharia law, but it’s not bloody likely. Here’s why it’s also unlikely that churches may be compelled to do icky things they don’t wanna do with gays.

First, at least one state, Massachusetts, has had same-sex marriage continually for six and a half years years now. In that time, churches have not been compelled to do anything against their teachings — unless, of course, they want to take government grant money, after which he who pays the piper calls the tune. All claims that churches have been compelled have either been thoroughly debunked or else have happened in foreign countries with constitutions that differ from ours on precisely the church-state relationship at issue here.

Perhaps seven years isn’t enough time for even one case of this type to arise. Would forty years suffice? Great! Then let’s consider interracial marriage itself.

Yes, in 1983 Bob Jones University was forced to allow students to date interracially, on pain of losing its tax exemption, at which time it opted to keep the ban and lose the exemption. That case was highly unusual, as the IRS itself admits. And it’s a fairly tenuous analogy for three reasons. First, students at a university aren’t clearly analogous to congregants at a church. Second, being compelled to abandon restrictions on dating isn’t clearly analogous to being compelled to take an active part in performing a marriage. And third, certain churches still refuse to perform interracial marriages to this very day.

Yes, these churches are universally thought to be obnoxious, repulsive groups, and they deserve it. But when they run afoul of the law, it’s usually because of their violence, and never because blacks or Jews can’t get married within them. Volokh ought to know this, and to appreciate that the strict scrutiny given to laws abridging religious freedom means that we’re nowhere near seeing lawsuits against Presbyterians for declining to perform same-sex marriages.

So what will the future look like for churches that don’t recognize same-sex marriages? It’s likely that a lot of them are going to change their minds peacefully from within, under the weight of private social stigma alone. They’ll learn, as Dan Savage puts it, to ignore yet another inconvenient part of the Bible, and that will be that. People who are more intransigent on the issue will, on the margin, seek out faith communities with like beliefs. Sorting of this type is not at all unusual in the history of religion.

But some churches of course will not give in to social pressure. Will they be reviled like the white power churches are today? Not necessarily. Today many churches also refuse to perform interfaith marriages, and we don’t regard them as repugnant to civil society. There is, by analogy, a place here for churches that don’t perform same-sex marriage, either. They might be seen as sticklers on a special point of religious law, not as the vanguard of a religious/racial/sexual holy war. Exhibit A is Orthodox Judaism, in which interfaith marriages are severely disfavored. Is anyone calling the Orthodox a hate group? No? Well then.

So — do you want to be an advocate for same-sex marriage? That’s great. First, educate yourself. Second, quit believing the other side’s propaganda. The religious concerns here are at best very, very hypothetical, and anyone who considers themselves in favor of same-sex marriage ought to be able to say so.

As an added incentive, I’ll point out to Volokh — if he hasn’t noticed already — that his (perhaps unintentional) concern trolling seems to be having a substantial effect. I note with dismay how his commenters have lined up mostly to worry along with him about how same-sex marriage is being imposed by mean old gays on the poor, victim churches. It’s a big change from how things used to be over there.