Why I Changed My Mind About Law and Marriage, Again

One of the most important obligations of my job is transparency. It’s not my job to be right all the time. After all, who can be? But it is important to explain not just what I believe and why, but also why I change my mind. When a person I respect changes political parties, I want to know why. When a person changes their mind on, say, the wisdom and righteousness of the Iraq War, I want to know why.

And so I’ve tried to explain when I change my views as well. Sometimes—when the political and cultural winds shift enough—I’ll also feel obligated to explain why I haven’t changed. For example, it’s now a virtual article of faith on both right and left that the Iraq War was wrong. I strongly disagree. I continue to believe the war was just and right, and I’ve tried to explain why. 

Where have I changed? To take a few notable examples, I definitely changed my views of Donald Trump. I used to believe I could support him—that he was the worst Republican in the primary, but still worthy of my vote. But that was wrong. I changed my mind in 2016 and never looked back.

I used to be far more trusting of the police and far less willing to credit critiques of cops. I grew up in the “law and order” tradition of the Republican Party, and it took me a long time before I could see what was plain to countless Americans who experience the criminal justice system up close: Racism and improper pro-police biases are far more prevalent in American law and culture than I wanted to believe. 

One of the most viral pieces I’ve ever written chronicled my own journey on race issues more broadly, one that was deeply personal and painful, full of shame and regret. In that piece, I asked readers to “be better than me.” Don’t wait for racism to touch your own family before you believe the testimony of your American brothers and sisters. 

And that brings me to another topic—my flip, flop, and flip back again on civil marriage. I emphasize the word civil because my view on the religious nature of marriage has not changed. It is a lifelong covenant between a man and a woman, sealed before God, and breakable only on the limited conditions God has outlined in his Word. 

But declaring that religious belief is not the same thing as declaring civil law. Outside of the most hard-core integralists or dominionists, there is broad and wise consensus that importing divine standards whole cloth into civil law can be a recipe for division, oppression, and ultimate harm to the church itself. Our nation possesses an Establishment Clause for a reason. 

Thus, we often have to wrestle with a series of difficult questions. When should we import our religious values into civil law, and how should we choose between competing religious and moral values when deciding that law? Even prior to same-sex marriage, the law governing civil marriage differed substantially from my religious beliefs. No-fault divorce, for example, is a standard far more permissive than my faith requires. 

With that as a backdrop, here’s my trajectory. First, in 2004, shortly after the Massachusetts Supreme Judicial Court legalized gay marriage in that state, I wrote one of my first-ever op-eds. I was a lawyer in private practice in Lexington, Kentucky, and put a piece in our local newspaper, the Lexington Herald-Leader. I can’t seem to find the whole thing online, but here was a key paragraph:

For those who believe gay marriage is morally wrong for Biblical or other religious reasons, this decision changes nothing. Churches can still speak out against sexual immorality and can still choose not to perform gay weddings. The gay couple down the street in no way makes our own straight marriage more difficult or challenging, nor can any decision of any court of law change the definition of marriage in the eyes of God.

My reasoning tracked my lifelong lifelong civil libertarian beliefs. In a diverse, pluralistic republic, granting the same rights to others that we’d like to exercise ourselves should be the default posture of public advocacy and public policy. It’s why, for example, I fiercely supported the rights to free speech and free association even in the face of deep and profound disagreements. I applied that same reasoning to civil marriage.

But then I changed course—in part because I became concerned that the movement for same-sex marriage would be ultimately ruinous for religious liberty. And I had real reasons to be concerned. To take just one example, at the Obergefell oral argument Justice Samuel Alito and President Obama’s solicitor general Donald B. Verilli Jr. had the following exchange: 

Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same­-sex marriage?

Verrilli: You know, I—I don’t  think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is—it is going to be an issue.

In 2004, I argued, “For those who believe gay marriage is morally wrong for Biblical or other religious reasons, this decision changes nothing.” By 2015, I had reason to fear this statement was seriously wrong. I had reason to believe that Christian believers who shared my views of marriage would be treated as the equivalent of white supremacists. The very existence of our religious schools and institutions was at stake.

In other words, as I wrote on Friday in The Atlantic, when someone asked, “What does my marriage have to do with your life?” there was now a response: “Changing the law could strip me of my religious freedom. It could destroy the school where I educate my kids, and it could damage the institutions that represent and advance my core values and deepest beliefs.”

So I wanted to square the circle. I wanted gay couples to enjoy marriage-equivalent legal protections but without changing the legal definition of marriage. I wanted gay couples to enjoy the legally protected right to build a life together without creating a legal superstructure that ripped apart religious freedoms that are indispensable to the health of the republic and to the flourishing of countless millions of American lives.

Then came Obergefell v. Hodges. In that decision it was clear that Justice Anthony Kennedy was trying to square the same circle as well. My eyebrows raised at this key passage:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.

Good words, I thought. We’ll see if they survive the test of time. 

In the years since Obergefell, three things have become quite clear. First, it’s plain that there are progressive Americans who most assuredly do not believe there are good faith objections to same-sex marriage, even on religious grounds. They view any objection to same-sex marriage as inherently and purely bigoted, and want the law and culture to punish orthodox Christians for upholding the teachings of their churches.

The examples are legion, and they’ve led to multiple confrontations at the Supreme Court. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, a Christian baker faced state sanction for refusing to design a custom cake for a same-sex wedding.

In Fulton v. City of Philadelphia, the city refused to contract with Catholic Social Services (CSS) because it would not certify same-sex couples as foster parents. (No same-sex couples had sought certification through CSS, and same-sex couples could get certified through other agencies.)

In 303 Creative v. Elenis, the state of Colorado asserts that a public accommodations law can be used to compel a web designer to use her artistic talents to design websites for same-sex marriages. Oral arguments in that case are set for December 5. (I filed an amicus brief in the case arguing in favor of the graphic designer’s right to be protected from compelled speech.)

We also can’t forget that the Democratic Party has advanced a version of its Equality Act that specifically took aim at religious freedom by stating that the Religious Freedom Restoration Act “cannot provide a basis” for challenging the “application or enforcement” of the law.

But this brings us to a second reality that’s emerged since Obergefell. Even as attacks on religious liberty escalated, the legal response was stronger still. Constitutional protections for religious freedom are more robust than they were in 2015. Masterpiece Cakeshop won its case 7-2. Catholic Social Services won its case against Philadelphia 9-0. The current version of the Equality Act can’t make it past a Senate filibuster. And while we can’t yet know the outcome of 303 Creative, most court observers would be surprised (perhaps even shocked) if the Christian web designer lost.

Moving beyond the direct conflicts between religious liberty and LGBT rights, the record for religious freedom since Obergefell is extraordinary. The Court has expanded the autonomy of religious organizations to hire and fire employees. It has protected churches time and again from discriminatory regulations (including discriminatory COVID regulations), and it has expanded the ability of religious institutions to receive state funds.

In other words, since Obergefell, both LGBT Americans and people who uphold orthodox Christian teachings on marriage enjoy expanded individual and institutional liberty. That doesn’t mean there aren’t issues left to resolve—and it certainly doesn’t mean that parts of the left aren’t keen to reverse religious liberty’s legal advance—but the bottom line is that the legal environment post-Obergefell is far better than I dared to hope in June 2015 when the case was decided.

Then there’s the third key factor. Millions of Americans have formed families and live their lives in deep reliance on Obergefell being good law. It would be profoundly disruptive and unjust to rip out the legal superstructure around which they’ve ordered their lives. One senses the Supreme Court feels the same way. In fact, in his majority opinion in Dobbs v. Jackson Whole Women’s Health, Justice Alito went out of his way to state that the court’s decision reversing Roe did not undermine Obergefell (and a number of similar 14th Amendment precedents) “in any way.”

So here I am in 2022 trying to square the same circle that I was trying to square in 2004 and in 2015. I want Americans of different faiths and no faith at all to be able to live together, work together, form families, and live with peace, security, and dignity. I don’t want my gay friends and neighbors to live in fear that the law might tear their families apart. 

I also don’t want the law to treat me as a threat. I don’t want the law to discriminate against those Americans who sincerely hold different views of sexual morality, sexuality, and marriage and organize their lives and their institutions accordingly. I want aggressive secular culture warriors to stand down, and if they choose not to, then I want the law to block their efforts to roll back the First Amendment.

That’s why I wrote Friday in The Atlantic in support of the Senate’s version of the Respect for Marriage Act. Not because I’m backing down one inch from Christian orthodoxy, but rather because it represents the best compromise I’ve seen yet that protects the rights and dignity of all Americans.  

I agree with University of Virginia professor Douglas Laycock. The act contains “important protections” for religious liberty, including “an explicit statement by Congress that ‘diverse beliefs about the role of gender in marriage’—including the belief that marriage is between a man and woman rather than between persons of the same sex—’are held by reasonable and sincere people based on decent and honorable philosophical premises’ and that such beliefs ‘are due proper respect.’”

Other provisions provide protections for the tax exemptions for religious organizations, hold that religious organizations don’t have to participate in the solemnization of same-sex marriages, and specifically reject the approach of the Equality Act, which sought to undermine the Religious Freedom Restoration Act.

The act doesn’t provide complete protection for religious freedom, but it’s an advance. At the same time, it provides a legal backstop for LGBT families in the unlikely event the Supreme Court overturns Obergefell. It holds that marriages recognized in one jurisdiction are entitled to “full faith and credit” in other American jurisdictions on the basis of “sex, race, ethnicity, and national origin.”

The Senate bill passed cloture last week, with the support of 50 Democrats and 12 Republicans. A final vote is expected soon. I don’t expect the vote to end America’s cultural and legal conflict over religious freedom, gay rights, and religious orthodoxy. 

In fact, the struggle over American pluralism never truly ends, and people of good will can draw different lines in different places. But after almost 20 years of thought, debate, elections, and litigation, we just might be inching closer to protecting all sides of our cultural divide—even when they disagree about the most profound matters of family and faith.

Another thing …

Many readers may remember that my wife Nancy and I last year published the results of a months-long investigation into Kanakuk Kamps in Missouri, the location of a dreadful Christian sexual abuse scandal. Since that first report, we’ve published a number of additional reports, and Nancy has done heroic work documenting decades of abuse (and cover-ups) at the camp.  

On Friday there was a significant new development. A victim of abuse at the camp sued Kanakuk claiming that it induced him to sign a settlement agreement and nondisclosure agreement through lies and deception. You can read the tweet and tweet thread below for the details. The Christianity Today report I link in the tweet is excellent and comprehensive. Please give it a read:

One more thing …

Why am I always talking about the most contentious subjects? Perhaps one week I’ll dedicate my writing and podcasting to the most uncontroversial of subjects. Perhaps one week will just be “puppy week,” and I’ll share my love for dogs. But that’s not this week, and this week I’m writing about same-sex marriage, reporting about the latest developments in a horrific abuse scandal, and podcasting about immigration. 

Curtis and I hosted Eric Costanzo, a Southern Baptist pastor in Tulsa, to talk about refugees, asylum seekers, and how the church talks about immigrants. Eric was fantastic. I think you’ll enjoy his thoughts. 

One last thing …

This is just a great, great song. It’s a profoundly humble statement of our utter dependence on God’s love and grace. Enjoy: