Religious liberty v. 14th Amendment in the offing

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U.S. Department of Justice Scales of Justice

U.S. Department of Justice Scales of Justice

U.S. Department of Justice Scales of Justice

According to the New York Times, Republican politicians have reason to celebrate the Supreme Court’s decision to decide whether the Fourteenth Amendment requires all states to license same-sex marriages and to recognize such marriages when contracted elsewhere. That’s because if the Court, as seems likely, finds that anti-SSM laws abridge citizens’ privileges or deny them equal protection, it will free GOP candidates from having to fight state-by-state for a losing cause.

They’ll have an excuse to say, “It’s been settled. Let’s move on,” write Jeremy Peters and Jonathan Martin. “But what remains problematic for these candidates — and what is reflected in statements they often make in the next breath about the importance of safeguarding ‘religious liberties’ — is the fact that many Republican primary voters do not want to drop the fight.”

Problematic? I’m inclined to think otherwise. In our never-ending culture war, the religious liberty battlefield is a lot more favorable for the GOP than the SSM one.

When push comes to shove, Americans have difficulty resisting equal rights for all — and push has come to shove hard for SSM in recent years. At the same time, Americans tend to be strong supporters of religious liberty, built as it is into both the Constitution and the mythology of America.

Whether the issue is securing the ability to discriminate against same-sex couples in the provision of goods and services or exemptions from the Affordable Care Act’s contraception mandate, “religious liberty” can be depended upon to elicit broader political support than “traditional marriage.” Legally, it is secured not only by the Free Exercise Clause but also by federal and state Religious Freedom Restorations acts.

These may or may not prevail in court against the requirements of the Fourteenth Amendment. But politically, they offer the same opportunity for rallying support that the Supreme Court’s school prayer and abortion decisions have. If I were a GOP candidate, I’d be happy with a Supreme Court decision that let me thump the drums of religious liberty against the onward march of gay rights. And I’m betting that that’s just what’s coming down the pike.