Jeffrey Toobin on God and Marriage Equality

Jeffrey Toobin compares the marriage equality movement to inter-racial marriage in The New Yorker.

God may reign, but He (or She) doesn’t legislate. The gritty business of passing laws is left to the people’s representatives, who answer, in the first instance, to their constituents, and defer, at least in theory, to the Constitution. The record of politicians who claim, in anything more than a general way, to be doing God’s will is dubious. Too often, assertions of divine guidance spoken in state capitols (as well as in the Capitol) have turned out to be little more than bigotry dressed in clerical garb. This is why, at least in theory, we have a Supreme Court. In their best moments, the Justices apply the careful scrutiny demanded by the Fourteenth Amendment—for equal protection of the laws—against any government official’s clairvoyance about God’s intent. That is what happened in 1967, when the Supreme Court finally heard Loving v. Virginia and ruled that all anti-miscegenation statutes must fall.

And that is what the Court did on Friday, in Obergefell v. Hodges, a case that is, in every sense except ease of pronunciation, the modern analogue to the Loving case. In the current opinion, the Justices ruled five-to-four that states may no longer bar same-sex marriage, just as in Loving they said that states could no longer forbid interracial marriage. Justice Anthony Kennedy’s opinion features a good deal of the fulsome rhetoric for which he is known, but it also contains a core of decency that leads to the resolution. Ultimately, though, the case is pretty simple.

The government confers a bundle of rights on individuals who choose to marry. The constitution’s guarantee of equal protection forbids any state from withholding those rights from the class of people who happen to be gay. End of story.

As it turns out, this argument is difficult to refute. The four dissenters in the case work themselves up, in varying levels of frenzy, in disagreement, but their position is also fairly simple to understand. They say that the issue of same-sex marriage should be left to voters, not to unelected judges. As Chief Justice Roberts wrote, in a seemingly Wikipedia-assisted dissent, “the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” We think we are judges, Kennedy replies, doing our job to make sure that the law treats everyone equally.

Supporters of marriage equality have won the political and legal argument by such an overwhelming margin that opponents have chosen to conduct a religiously themed retreat into victimology. Their theory is that, by living in a society where there is marriage equality, their right to practice their religion is being violated. After the Court’s decision, Texas Governor Greg Abbott said, “Despite the Supreme Court’s rulings, Texans’ fundamental right to religious liberty remains protected. No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage.” Bobby Jindal, the Louisiana Governor and Presidential candidate, asserted that the decision “will pave the way for an all-out assault against the religious-freedom rights of Christians who disagree with this decision.”

We should be clear about the “liberty” interest being asserted here. Abbott, Jindal, and their allies are positing a right to discriminate—for local officials to refuse to conduct same-sex weddings, for photographers and bakers to refuse to do business with gay people, for wedding planners to advertise that no gay couples need apply. Their actions are the linear descendants of the Virginia officials who claimed divine guidance for their prohibition on interracial marriage. The First Amendment allows individuals to believe anything they want, but it does not allow them to use their beliefs as a license to discriminate in ways that would otherwise be limited by law. No one, at this late date, would claim a religious inspiration for a florist to refuse to sell flowers to an interracial wedding or for a magistrate to perform one; they should not have the right to refuse to do business for a same-sex wedding, either.

In all likelihood, many of these rear-guard actions against marriage equality will soon fall of their own weight. Like so many of their fellow-Americans, wedding photographers and the like will make their peace with the new rules that guarantee their neighbors an equal chance at happiness. (Besides, they need the business.) The story of same-sex marriage is one of the great civil-rights successes in American history, and the protests of a few dead-enders shouldn’t dampen the celebration. Thanks to the Supreme Court, gays and lesbians are a big step closer to full and equal citizenship. God knows they’ve waited long enough.