In 2003, the Supreme Court Justice Antonin Scalia made a rather prophetic statement in his dissenting opinion in Lawrence v. Texas (2003), a Supreme Court ruling that struck down anti-sodomy laws across the country. After excoriating the majority for simply waving away the long-held notion that sodomy was a form of sexual immorality that the state had a legitimate interest in prohibiting, Scalia wrote:
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts — and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage. … Do not believe it.
In other words, Scalia was declaring, “It’s not within the nature of courts to remain neutral on moral issues. By declaring that the government can’t prohibit homosexual acts today, the court is guaranteeing that the government will be celebrating homosexual acts tomorrow.”
A mere 12 years later, the Supreme Court, via Obergefell v. Hodges, declared every state prohibition against same-sex marriage unconstitutional, with Justice Anthony Kennedy justifying the majority’s opinion by lauding the beauty of homosexual relationships. While Scalia’s words did indeed prove prophetic, they were not perfectly so.
Legalizing gay marriage may have been taking the court’s logic to the next logical step, but it wasn’t the logical conclusion of declaring that the state can’t punish those who engage in homosexuality. Rather, the logical conclusion of the court’s judgment in Lawrence is saying the state must punish those still clinging to the former orthodoxy.
O’Rourke Shows Left’s Trajectory on LGBT Issues
This is something presidential candidate Beto O’Rourke demonstrated in a recent CNN forum on LGBT issues. When Don Lemon asked him if churches and religious organizations that oppose same-sex marriage should lose their tax-exempt status, O’Rourke replied with a firm “Yes.”
Then O’Rourke explained his position by stating, “There can be no reward, no benefit, no tax break for anyone or any institution, any organization in America, that denies the full human rights and the full civil rights of every single one of us. So as president, we’re going to make that a priority, and we are going to stop those who are infringing upon the human rights of our fellow Americans.”
While one might dismiss O’Rourke as an outlier, it’s worth noting that his response met cheers from the audience and tepid disavowals from a few of his fellow would-be Democrat nominees who couldn’t sufficiently explain why they disagreed, indicating the former congressman’s position is more mainstream among leftists than we might think, even if many on the left recognize it’s not wise to state that view publicly.
Quite simply, O’Rourke’s plan to tax religious groups opposed to same-sex marriage is not merely the hard-left pandering of an unserious candidate trying desperately to bring his poll numbers above negative-400 percent. It’s the logical conclusion of the illiberal philosophy embraced in Lawrence.
Yesterday the state said homosexuality is neutral. Today the state says homosexuality is good. Tomorrow the state will say opposing homosexuality is bad and must therefore be punished. While O’Rourke’s position may be too hot for the eventual nominee to embrace right now, don’t be surprised if it becomes the official platform of the Democratic National Committee the moment it becomes clear they can win the presidency while giving churches, synagogues, and mosques the sin tax treatment.
In addition to showing the left’s trajectory on religious freedom, O’Rourke’s comments also reveal why conservatives are faring so poorly on the LGBT front of the culture war.
While most Americans would probably describe their general approach to human sexuality as “live and let live,” most Americans also intuitively understand that the “live and let live” doctrine gets complicated when people’s sexual practices and identities follow them into public places. When that messiness arises, both conservatives and progressives have the chance to convince people that their respective solutions will get things tidied up. Why, then, are conservatives losing so many of these battles for the hearts and minds of the general public?
The Folly of ‘Live and Let Live’
To answer that question, consider transgenderism. “Live and let live” flies out the window the moment a man identifying as a woman shows up in the ladies’ bathroom and makes the women in the room uncomfortable. Likewise, how do you solve the problem when public schools demand that teachers use students’ preferred pronouns and some teachers object?
Progressives promise to clean up this mess by carrying their beliefs to their logical conclusion. Transgenderism, they argue, is a perfectly valid identity the state should celebrate and defend. And because it harms people to have their identity rejected, the state must therefore compel others to acknowledge it — thus, force institutions to have transgender bathroom policies. Force taxpayers to subsidize transgender surgery. Fire teachers for refusing to use students’ preferred pronouns. Follow Canada’s example and remove children from their parents if they refuse to embrace their kid’s trans identity.
Conservatives, however, have shown little willingness to follow their own principles likewise to their logical actions. By and large, we assert that transgenderism is, at best, a phase and, at worst, a form of mental illness, so it should follow that the way to clean up the mess is to use the state’s power to hinder those who would do physical and psychological harm to those struggling with a false sense of identity. Yet we are largely unwilling to urge the state to do this.
We aren’t willing to say that mothers who shove their supposedly gender-nonconforming children in front of TV cameras should have their children removed from their homes. We aren’t using the power we have in red states to pass laws promising revoked medical licenses and perhaps even jail time for doctors who prescribe puberty-blocking drugs to minors and chop off perfectly functional sex organs. When trans students show up at schools and demand that teachers use their preferred pronouns, we aren’t willing to say, “The solution to this problem is to forbid males from coming to school dressed as females and vice versa while they get the help they need.”
In all of this, we refuse to clean up the “live and let live” mess by carrying our beliefs to their logical conclusion, which frequently convinces the undecided public that they should probably side with the people who will. That’s why Sen. Elizabeth Warren didn’t consider it political suicide to cheer the bravery of a 9-year-old girl living as a boy. That’s why we’re losing.
Conservatives Need More Than a Supreme Court Ruling
It is, of course, important for conservatives to keep defending those dragged into court for refusing to accept the new LGBT orthodoxy. And God bless those florists, bakers, and educators who have refused to acquiesce to the state’s demands, but not everyone has the mettle or the ability to wait five years for a favorable Supreme Court ruling.
For their sake, it would behoove conservatives to remember that you don’t win culture wars by refusing to fight until you get to the courthouse steps. Likewise, it’s also worth remembering that those who lose culture wars will eventually lose the constitutional protections in which they’ve sought sanctuary.
Sure, O’Rourke’s vindictive tax policy would likely be ruled unconstitutional by today’s Supreme Court. But the more comfortable our culture becomes with the idea of destroying dissenting churches via the power of taxation, the less confident we should be that future justices will maintain today’s understanding of the First Amendment. After all, if the Supreme Court, high on elitist zeitgeist, can stick its hands into the void and invent a constitutional right to abortion or to marry anyone, it can also invent a constitutional right to a clean conscience, which can only be preserved by silencing those repentance-preaching pastors and priests.
Quite simply, conservatives need to win converts to prevent progressives from devouring us. And that won’t happen if we refuse to carry our beliefs to their logical conclusions. So at the risk of rekindling the Ahmari-French debate, when conservatives express discomfort with the concept of obscenity laws, see drag queen story hour as a “blessing of liberty,” and won’t scream in defense of gender-confused children who are being abused by the people who are supposed to protect them, we aren’t clinging to our first principles. Rather, we’re forgetting the very first principle — namely that earthly governments are instituted by God to punish the wicked and reward the good in order to give us a peaceful and quiet life.
Because of this, we shouldn’t hesitate to use the state’s power to defend ourselves and our children from the kind of metastasizing libertinism that rots every brick of the public square it touches. If we don’t, as the journey from Lawrence v. Texas to Beto v. Traditional Christians, Jews, and Muslims shows, those who have gotten comfortable using the state to impose their perverse morality on us won’t tire of doing so any time soon.