After Obergefell: What Is to Be Done?

Editor’s Note: To add just one item to the bits of Mr. Marlin’s “practical advice” below, please click on the notice to the right of this column about TCT’s pilgrimage/study tour in Rome and nearby places this October, right after the Synod. We’ll be talking about that event and other Catholic matters with journalists, scholars, and some TCT regulars (Brad Miner and George Marlin – if his schedule permits), as well as trying to spend time together in the high Catholic manner. Space is limited, so if you’re interested in joining us, best to reserve a spot right away. Hope to see you in Rome! – RR

The fight against same-sex “marriage” in America is over. We lost more than a battle. We lost the war. It’s still worth making the moral case for real marriage, but that’s a long-term prospect. More pressing practical matters need our attention.

In my judgment, those who argue we must go to Washington and persuade legislators to introduce a constitutional amendment that nullifies the Supreme Court’s decision are spinning their wheels. Such legislation will face the fate of the Human Life Amendment. It will consume time and treasure, and get nowhere.

As for those who compare the marriage fight to the pro-life fight, I believe they too are mistaken. The war against abortion goes on because scientific and technological advancements have convinced more and more people that abortion destroys innocent human life.

Most people born after Vatican II, however, do not view same-sex marriage as a similar abomination. For them, any two people can be joined in wedlock because love is the sole standard for marriage.

And on a practical level, no federal or state official is going to rush to undo thousands of same-sex marriages. It’s just not going to happen.

So before proposing new battle plans, we should learn from mistakes made by the pro-life movement. After Roe, most efforts to roll back the decision centered on the nation’s capital instead of state capitals. This was a strategic error.

The 1974 post-Watergate congressional elections, gave leftist Democrats enough votes to prevent the advancement of significant pro-life legislation. Even the 1976 Hyde Amendment restricting federal funding of abortion had to include exceptions in the case of rape, incest, or the life of the mother to get passed.

The fertile grounds for the pro-life cause in the 1970s were the state capitals. Back then there were plenty of sympathetic Catholic Democrats and Protestant Republicans in legislatures throughout the nation – even in Northeast and Midwest liberal states.

Take my home state of New York. In March 1970, the state legislature approved a pro-abortion bill that was signed into law by Governor Nelson Rockefeller. That November, voters tossed out the three Catholic legislators who sold out and supported the bill.

Because of this voter backlash, the legislature overturned the law, but Rockefeller vetoed the repeal. A few months later the U.S. Supreme Court handed down Roe, which the New York Times observed was “patterned in part on the New York law.”

The lesson: if an abortion law could be repealed in one of the bluest states in the 1970s, the fledging pro-life movement could have persuaded state legislatures throughout the nation to pass laws that would have limited abortions.

Look at what’s been happening on the state level in recent years. Since Republicans took control of a majority of state capitals in 2010, over 230 abortion restrictions have been signed into law.

County-by-county, state-by-state . . .
County-by-county, state-by-state . . .

So, instead of wasting precious time and resources on a constitutional amendment on marriage, we should direct out energies to protecting religious liberties at the state level.

Why? Because priests who perform marriages at present represent both the Church and the state – and it’s only a matter of time before their civil authority is challenged.

Here’s a potential scenario: A same-sex couple walks into a Catholic church in New York, informs the pastor that they were both baptized in his parish, and insists he marry them. The priest says “no.” The couple argues that he must perform the ceremony because he represents the state and must obey the state’s marriage equality law. The priest, who has the right to refuse to marry any Catholic individual for various reasons listed in the Code of Canon Law (e.g., either the man or woman did not receive the sacrament of confirmation; or one of them has notoriously rejected the Catholic faith; or one or both are bound by censure). The priest stands his ground, and is subsequently sued.

Considering the leftist composition of New York’s judicial system, the Church could easily lose such a case at every level including the state’s top legal body, the Court of Appeals.

If the Church is stripped of its powers to represent the state in marriage, a Catholic couple would have to be married first in a civil ceremony and then, if they so choose, have the marriage blessed by the Church in a religious ceremony.

If the same-sex “marriage” lobby wins in the state courts, expect them to step up the pressure by filing complaints with the IRS. In the name of social equity, cultural inclusiveness, fairness, and in the managerial state’s goal of eliminating improper thoughts and religious practices, the IRS might very well revoke the Church’s tax exemption.

Far fetched you say? I think not.

At the sixth annual Women in the World Summit in April, keynote speaker Hillary Clinton told attendees “deep-seated cultural codes, religious beliefs, and structural biases have to be changed.”

If Mrs. Clinton moves into the White House in 2017, expect her to use all the powers at her disposal, particularly the IRS, to impose her views on Catholics and other stubborn dissenters.

We must put our time and energy, over the next eighteen months, into crafting religious liberty legislation that can be introduced by lawmakers in every state – and in Washington. The proposals should be drafted by the sharpest constitutional lawyers available. There should be one unified approach, not competing laws used by various organizations to raise money. We can’t afford infighting because the window of opportunity is rapidly closing.

The bill must include language that protects a priest’s right to represent the state and to perform marriages consistent with Church practices and beliefs. Whether legislation should be introduced as a new civil law or as an amendment to the state’s constitution should be decided on a case-by-case basis.

Enacting such laws throughout the nation will make it more difficult for opponents to impose their will on us. It does not mean we will not eventually lose, but it will ensure that courts will have a harder time ruling against us.

George J. Marlin, Chairman of the Board of Aid to the Church in Need USA, is the author of The American Catholic Voter and Sons of St. Patrick, written with Brad Miner. His most recent book is Mario Cuomo: The Myth and the Man.