Ryan Anderson, a leading voice defending traditional marriage, says he wasn't surprised when the U.S. Supreme Court legalized same-sex marriage one year ago this month.
"It was only logical after 50 years of heterosexuals making a mess of marriage that it was plausible for five judges to legally redefine marriage," the Heritage Foundation scholar recently told a roomful of family studies graduates at Brigham Young University.
He then proposed a plan that he believes could slow the momentous change in attitudes on marriage that's occurred in the past decade and potentially reverse the trend. He explained how taking a page from the anti-abortion movement could help traditional marriage supporters chip away at the high court's Obergefell vs. Hodges ruling, preserve the right to not recognize same-sex marriage and build a case against same-sex parenting.
Some legal experts are skeptical about the comparison, noting that the stakes in the abortion debate are much higher than they are in marriage equality.
"The fundamental ethical calculus (of same-sex marriage) is very, very different," said Jonathan Rauch, a senior fellow in governance studies with the Brookings Institution.
Anderson acknowledges his analogy to the anti-abortion movement is not perfect. After all, the court's landmark Roe v. Wade ruling legalizing a woman's right to have an abortion is still the law of the land, and a debate over the right to marry is not the same as arguing over women's rights or the right to be born.
But he says the ongoing legal battles to restrict abortion (the Supreme Court will issue a ruling before the end of this month on restrictions in Texas) give hope that the battle over marriage isn't over.
"Forty years ago, the talking heads said the Supreme Court has settled the abortion issue and a generation from now we will all be pro-choice and pro-lifers will be in nursing homes and inside the Vatican. But the millennial generation is more pro-life than previous generations because of the work of their parents," Anderson told BYU students. "The talking heads are saying the same thing now, that the Supreme Court has settled the marriage question and traditionalists will all be inside the Vatican and in nursing homes. What can we do to prove those talking heads wrong?"
Poke holes in the ruling
One of the key ways anti-abortion activists responded to Roe v. Wade was to see the ruling as an opportunity, rather than a roadblock, Anderson said. They recognized its weaknesses and prepared to expose them.
"Little by little, the pro-life movement has made progress in undoing that precedent," he said.
Traditional marriage supporters should adopt a similar mindset, he argued, noting that the four justices writing for the minority in the same-sex marriage ruling set that process in motion.
"We have four well-written dissents in the Obergefell decision, pointing out flaws in logic that got the case, marriage and constitution wrong," Anderson said.
But traditional marriage supporters may struggle to make progress on this front, because there doesn't seem to be the same level of energy behind their cause that there is behind the anti-abortion movement, Rauch said.
"I don't detect a big market shift in the direction of a kind of renewed battle on same-sex marriage," he said, noting that the issue has rarely come up during this year's presidential election.
Indeed, observers on both sides of the issue agree the swift change in public opinion on same-sex marriage was unprecedented. In 2016, 37 percent of U.S. adults opposed same-sex marriage, compared to 51 percent in 2008 and 60 percent in 2004, according to Pew Research Center. Support has increased more than 20 percentage points since 2001.
Rauch also believes that the marriage equality ruling is less susceptible to legal attacks than the abortion decision.
"Obergefell is not perfect, but the point is that the ruling is much less vulnerable to being accused of making up legislation randomly than Roe v. Wade was," he said.
The abortion ruling's flaws, including that it was based on an unscientific understanding of trimesters, were acknowledged by people on both sides of the debate, noted Lucia Silecchia, a professor of law at the Catholic University of America, in an email.
"I think it is fair to say that the legal analysis in Roe was sloppy at best. Given that shaky legal analysis, it is no surprise that the Roe jurisprudence has been critiqued for over four decades," she said.
Create legal protections
After the abortion ruling, Congress and every state but Alabama, New Hampshire and Vermont created protections for health care providers whose religious beliefs prevented them from participating in the procedure. Conscience rights legislation helped people on both sides of the abortion issue move forward together.
"Roe v. Wade created the right to abortion, but also the right not to perform an abortion or pay for an abortion," Anderson told the Deseret News in April. He was not available to comment for this article.
To a large extent, that same approach to creating religious exemptions to same-sex marriage is already in motion. More than 100 religious freedom bills have been filed in state legislatures since June 2015, which, when passed, provide ways for people to exempt themselves from participating in same-sex marriages for religious reasons without losing their government position or business.
Anderson said that this work must continue, noting that traditional marriage supporters should be able to find allies even among those who support same-sex marriage.
"We need to form alliances with those who disagree with us about marriage," he said. "If the argument is about a freedom to love and right to marry, isn't there also a corollary right of freedom to operate your business according to your religious beliefs?"
Religious accommodations, when they're done well, are "good for gay marriage and gays and straights," as well as people who believe marriage should only be between one man and one woman, Rauch said.
But he noted that conscience-rights protections are becoming more and more contentious, because some state lawmakers have been using them to discriminate against the LGBT community.
"The religious liberty question has been weaponized to a large extent," he said.
Rauch said he still believes there's a way to balance protections for traditional marriage supporters and gay and lesbian couples, noting that these efforts wouldn't undermine the Obergefell ruling.
"I'm not giving up on getting people around a table to work out reasonable solutions. It's way too premature to decide that can't happen," said Rauch, who is an LGBT activist and has long supported reaching a compromise with religious objectors.
Shift public opinion
In addition to a sustained effort to find legal loopholes in the Supreme Court's ruling on marriage, supporters of traditional marriage need to begin a campaign in the court of public opinion, Anderson said. He added that science, theology and personal stories could be used to win back support for traditional marriage.
"We need to make the case for marriage just like the pro-life movement made the case for life," Anderson said. "The challenge we face is to bear witness to the truth about marriage in a way that even our neighbors who don't agree with us can understand."
But Anderson acknowledged in his presentation that it's difficult to make a case for who same-sex marriage harms.
"With marriage, we are not talking directly about rights or harms," he said. "We're talking about an institution in society that helps support human flourishing."
Opposition to abortion has been relatively stable since the 1970s. In May 2016, 19 percent of U.S. adults thought abortion should be illegal in all circumstances, compared to 22 percent in April 1975, according to Gallup.
High-profile Supreme Court rulings often increase public support for the winning side, but the anti-abortion movement has been aided by scientific advancements and the debate's high moral stakes, Silecchia noted.
"The rise of new technology allows us to have a window into the womb that we did not have before — a window that makes the development of the pre-birth child harder to ignore and makes the need for the state to protect this interest more compelling," she said.
Because the same-sex marriage debate doesn't involve the same moral stakes, Anderson and other traditional marriage supporters must find other compelling arguments to reverse the rapid shift in public opinion supporting same-sex marriage.
Anderson suggested that traditional marriage supporters use research and personal stories to highlight why it's important for children to be raised in homes with a mom and a dad.
However, these attempts to question the legitimacy of same-sex marriages will have to compete with real-world examples of gay and lesbian couples living happy, healthy, family-focused lives, said Jennifer Pizer, senior counsel and Law and Policy Project national director for Lambda Legal, a law firm dedicated to LGBT-related causes.
"The general public can see that the predicted end of civilization has not come to pass," she said.
Anderson said it will be difficult but not impossible to shift public opinion, even if the strategy still needs to be ironed out.
"There's not quite yet that bumper sticker slogan," he said.
While they have a year-old Supreme Court decision and public opinion on their side, Lambda Legal and other same-sex marriage supporters are ready for a drawn-out legal and cultural debate that is already taking place in state legislatures and local courts, Pizer said. The Obergefell ruling was momentous, but she, like Anderson, knows the marriage equality battle is not over.
"We learn from and honor the history of other civil rights movements," she said. "All you need to do is look around and know this work is never done."
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