Map: The States Still Fighting Gay Marriage

Opt-outs, adoption bans, and religious exemptions are popping up across the country despite the Supreme Court's historic ruling for equality.

The Daily Beast

Across the country, the backlash to same-sex marriage is in full swing. And I say: bring it on.

At last count, officials in seven states have opted out of marriage recognition since the landmark ruling in Obergefell v. Hodges, while those in a total of 20 probably have the right to do so. Yet given the trend lines in public approval of marriage equality—now upwards of 60 percent, with a strong demographic tilt—the backlash, itself, is likely to backfire, alienating young voters and associating the Republican Party with prejudice.

Here’s a roundup of what we’ve seen so far.

States with officials opting out of marriage recognition

North Carolina. The nation’s most comprehensive opt-out provisions are in North Carolina, which passed a law last month (over the governor’s veto) to allow magistrates to opt out of performing same-sex marriages for religious reasons. So far, the Associated Press has reported, 14 have done so—2 percent of the state total. The North Carolina law requires officials to declare a “sincerely held religious objection” and withdraw from all civil marriages for six months.

Texas. Showboating Attorney General Ken Paxton issued an unprecedented condemnation of Obergefell, calling it “lawless.” But Texas’s only formal action, so far, is to offer to defend clerks, judges, and justices of the peace who opt out. Texas already has a Religious Freedom Restoration Act (RFRA), like Indiana’s controversial one, which protects individuals seeking to discriminate against gays for religious reasons.

Alabama. Eight counties are refusing to issue any marriage licenses—until July 21, anyway, after a bizarre statement by Chief Judge Roy Moore that they can wait 25 days after the Obergefell decision before doing so.

Arkansas. In Arkansas, a battle has erupted between Gov. Asa Hutchinson on the moderate-right and state House Republicans on the farther-right. Gov. Hutchinson says Arkansas’ RFRA already protects clerks and other officials who wish to opt out. But others say additional protection is needed. Hutchinson has so far refused to call a special legislative session, as requested by conservatives.

Kentucky. At least two county clerks have refused to issue marriage licenses to same-sex couples—one has stopped issuing licenses entirely, and the other has already been sued by the ACLU for discrimination. However, Kentucky’s Democratic governor has rebuffed calls for a special legislative session to address the matter, saying “It’s time for everyone to take a deep breath.”

Ohio. A Toledo, Ohio, judge refused to marry a same-sex couple due to “personal and Christian beliefs.” Another judge was procured, and the recusing judge is attempting to “opt out of the rotation” for performing civil marriages.

Tennessee. Three employees of the Decatur County Clerk’s Office have resigned rather than have to issue licenses for same-sex marriages. (In Tennessee, they are already exempt from having to perform them.)

States with RFRAs

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In addition to the seven states where officials have already refused to license same-sex marriages, a total of 20 states probably allow them to do so already.

That’s because these states have RFRAs, which make it difficult for the government to prosecute cases of discrimination. In these states, clerks who opt out are probably safe, as long as a substitute can be found. Under RFRA’s strict language, the government must find the “least restrictive means” if it burdens a religious action. If the next judge, clerk, or magistrate over can be substituted easily, then arguably that is less restrictive than compelling an official to do his or her job.

Then again, arguably it isn’t. It’s easy to imagine a court deciding that uniformity of workplace responsibilities, or the indignity suffered by couples turned away, mitigates against opt-outs by religious individuals. This remains an open legal question.

What all this means—especially for adoption

All of these backlashes are further steps in the redefinition of “religious freedom,” now the omnipresent buzzword of those seeking to undermine same-sex marriage. Just two years ago, the redefinition of this term was so new that we had to explain it. Not anymore. Whether in formal RFRAs or in high-flying rhetoric, “religious freedom” is the conceptual frame of choice.

And adoption is quickly shaping up to be the next major battleground. Kansas Governor Sam Brownback issued an executive order Tuesday that forbids state government officials from taking any action against a “religious organization” that refuses to recognize a same-sex marriage. The language is instructive. What the order is really about is adoption: It’s meant to protect state-funded, church-run adoption agencies which refuse to place children in same-sex-led households. A 2014 bill that would have allowed anyone, public or private, to refuse to serve same-sex couples died after withering media opposition.

The highly publicized cases of cake bakers and the like are red herrings. What really matters, on both sides of the ideological aisle, are gigantic organizations like Catholic Charities, which gets millions of dollars for the government to provide adoption services—but still wants to play by its own religious rules.

Follow the money. Conservatives are talking about individual rights to conscience, but the real battle is about outsourced government services, and whether those services should be available to all, or only some.

All the same, it’s worth noting that several red and purple states have not joined the backlash bandwagon. As The New York Times has reported, Louisiana and Mississippi have dropped their opposition. And the Democratic governor of Missouri ordered state employees to implement Obergefell.

The fact is, conservatives do not agree on how best to proceed. Some want to grandstand, like Texas’s attorney general (soon to be indicted for securities fraud). Others want to take a deep breath, allowing individual opt-outs without making a big deal. It will take a while for this to shake out.

Bring on the Backlash

Notwithstanding all the above, as a happily gay-married rabbi, I still say: Bring it on. Because the benefits to the LGBT side will outweigh the costs.

Of course, it’s humiliating to have some county clerk defy the rule of law and demean your intimate relationship. But we’re not talking about a lot of people here, or a lot of dignitary harm to same-sex couples. We’re talking about a few demagogues, and some sincerely scared Christians who are, indeed, losing the culture war.

Meanwhile, time is on our side. It’s unlikely that marriage equality will be like abortion—an endless, drawn-out war of attrition. Even conservative Christians are saying the focus on gays is misguided. And we’ve all seen the public opinion polls.

As a result, every one of these clerks is a miniature George Wallace, standing in the schoolhouse door to prevent desegregation. And while some opponents of marriage equality (most notably, Chief Judge Roy Moore of Alabama) long for that kind of notoriety, history is squarely on the side of Vivian Malone and James Hood, the African-American students Wallace tried to keep out of the University of Alabama.

Today’s gay couples lining up to get married are similar. Of course, African-American civil rights and LGBT civil rights are not the same; the histories, oppressions, and communities are different. But they are close enough. At the end of the day, these couples are, like Malone and Hood, two people seeking dignity and justice. It’s political and moral foolishness to stand in their way.

And then there’s this: The sky has not fallen since gay couples started getting married on June 26, and it won’t fall tomorrow or next year either. Traditional marriage will be just fine (or at least, its demise won’t be the gays’ fault). No one is forcing a church to do anything they don’t want to do. No one is really abridging anyone’s religious freedom. And only 5 to 10 percent of Americans are gay; same-sex marriage just won’t affect most people’s lives.

Thus, it’s entirely possible that in a few years, we’ll wonder how anyone could have opposed marriage equality, just as today it’s hard to imagine supporting segregated schools. And if Republican leaders insist on tainting their brand by doing so, well, more power to them.

So, conservatives, bring on the backlash. The only ones you’re hurting are yourselves.