Commentary

The Right’s Bait and Switch on Same-Sex Marriage

By David Lampo
This article appeared in The Blaze on August 2, 2013.

The opponents of same-sex marriage have thrown out many arguments against it, most of them without a rational basis or designed simply to obscure their real reason for opposition: They simply don’t think homosexuals deserve the same legal rights that they do. 

These arguments are mostly falling on deaf ears, apparently, since public opinion continues to change in favor of marriage equality, but that doesn’t stop opponents from using half truths, misrepresentations, or even outright lies to advance their agenda.

One of their favorite arguments of late is that legalizing same-sex marriage will somehow lead to restrictions on religious liberty, even “criminalization” of religious opposition to homosexuality, and many conservative religious leaders and pundits are now making this argument the centerpiece of their campaign against gay marriage. Politicians that pander to them are speaking out as well, such as Sen. Ted Cruz, the Tea Party Republican from Texas making waves on Capitol Hill for his strident defense of conservative social issues.

He recently told the Christian Broadcasting Network’s David Brody, for example, that “other nations that have gone down the road towards gay marriage” are punishing “Christian pastors who decline to perform gay marriages” and who “speak out and preach biblical truths on marriage,” warning that could happen here. A scary thought, to be sure, certainly one that seems to merit the concern of every freedom-loving conservative and libertarian in this country.

Except that it’s not true. 

Cruz and other opponents of same-sex marriage point to the 2003 case of a Swedish Pentecostal minister named Aake Green, who was taken to court for comparing homosexuality to cancer, as the perfect example of the slippery slope gay marriage will put us on. His 2004 conviction, however, had nothing to do with gay marriage, which didn’t even exist at the time. Aake was charged under Sweden’s hate crimes statute. Unlike America, many European countries lack the free speech guarantees we take for granted. Even in Sweden, however, his conviction was ultimately overturned. Apparently, facts rarely get in the way of a politician or a preacher on a mission.

The same is true here in the United States. Opponents of same sex marriage cannot point to a single case where a church or religious institution in America has been forced to conduct or sanction a same sex wedding. In fact, those states that have adopted same-sex marriage have instituted strict protections for the right of churches to refuse to recognize or support such marriages, consistent with our heritage of freedom of religion and conscience. So instead, the opponents of gay marriage are engaged in an intellectual bait and switch argument, trying to tie gay marriage laws to a variety of lawsuits against private businesses for discrimination against gay couples.

Conservative columnist Dana Loesch has been particularly outspoken at this game, citing a number of such cases that she says prove that same-sex marriage will put us on that slippery slope to the day when opponents of gay rights and same-sex marriage will have their religious rights and freedom of conscience routinely violated: 

  • In 2006, a Christian photographer in New Mexico turned down a request by a gay couple to shoot their wedding photos, and she was then sued for her refusal to do so. The state’s Human Rights Commission ruled in favor of the couple, as did the New Mexico Court of Appeals. The case is now before the state supreme court.
  • In New Jersey, a Methodist church received a property tax exemption by promising to make its grounds open to the public, and it received taxpayer support for upkeep of the property as well. But when a lesbian couple tried to rent a pavilion on the property for a civil union ceremony (New Jersey doesn’t have gay marriage), the church turned them down. The state then revoked the tax exemption it had granted.
  • In Lexington, Kentucky, a T-shirt company called Hands On Originals refused to print shirts for the local Gay and Lesbian Services Organization based on the company’s religious beliefs. The group sued, and the company was dragged through a lengthy legal investigation by the county Human Rights Commission. The case now goes to a public hearing for resolution.
  • A Colorado bakery was sued by a gay couple last year after the firm refused to bake them a wedding cake. The case is scheduled to be heard before the state’s Civil Rights Commission in September. If the bakery loses and refuses to comply with the order, the owner could face a fine of $500 and up to a year in jail.
  • Two years ago in Montpelier, Vermont, the Wildflower Inn refused to host a wedding reception for a lesbian couple from New York, saying that hosting such an event would violate their religious views. The couple sued with the help of the ACLU, and last year reached an agreement with the inn that forced it to stop holding wedding receptions and fined it $30,000.

As upsetting as these cases are for anyone who believes in freedom of association and religion, the simple fact is that none of them had anything to do with legalizing same-sex marriage, as so many conservatives like to argue.

All of these lawsuits were based on the defendants allegedly violating their states’ or local governments’ respective public accommodations laws, laws that prohibit businesses that cater to the public from discrimination on the basis of sexual orientation (as well as on the basis of a variety of other personal characteristics such as race, creed, religion, sex, and national origin). None of the states in which these cases were heard even had same-sex marriage at the time of their respective lawsuits, and only one (Vermont) does today. Surely Ms. Loesch and others know that these lawsuits, legally speaking, have nothing to so with same-sex marriage, yet they argue otherwise.

One can certainly make (and in my opinion, should make) the argument that all of the defendants in these cases should be free to withhold their services from those they morally disagree with; that, after all is what freedom of association and freedom of religion are all about. 

But lying about these cases in a cynical attempt to denigrate marriage equality is intellectually and morally dishonest, revealing a growing desperation on the part of the anti-gay marriage movement in this country. The opponents of same-sex marriage are losing the battle for Americans’ hearts and minds, and their dishonesty will make their defeat even sweeter for those who believe in legal equality for all Americans.

David Lampo is the publications director at the Cato Institute.