Conservatives remain divided on response to same-sex marriage

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Four months after the Supreme Court held in Obergefell v. Hodges that states across the nation must recognize same-sex marriage, conservative opponents of the decision remain divided as to how best to respond, with some encouraging civil disobedience and others insisting on upholding the “rule of law.”

Earlier this month, a group of academics and legal scholars, led by Princeton professor Robert P. George, announced a campaign to resist the Court’s ruling.

In a statement issued through the American Principles Project, 64 conservative academics, including Scott FitzGibbon of Boston College Law School and Hadley P. Arkes of Amherst College, described the Obergefell decision “anti-constitutional” and “illegitimate,” and called on state and federal officeholders to refuse to accept the ruling as binding precedent:

“We remind all officeholders in the United States that they are pledged to uphold the Constitution of the United States, not the will of five members of the Supreme Court,” the statement reads.

The statement calls on officeholders to ignore the decision and promises “full and mutual legal and political assistance to anyone who refuses to follow” the Court’s ruling.

But other conservative opponents of same-sex marriage reject this approach, arguing that government officials have a responsibility to implement the decision, even if they think the Court made a mistake and even if carrying out the Court’s mandate violates their sincerely held religious beliefs.

Rod Dreher, for example, argues in The American Conservative that religious liberty is not “the constitutionally guaranteed right to ignore the Constitution whenever it suits us” and cautions fellow conservatives that resisting Obergefell threatens to undermine the cause of religious liberty generally.

Russell Moore and Andrew T. Walker of the Ethics & Religious Liberty Commission — the political arm of the the Southern Baptist Convention — argue that government workers can advocate for traditional marriage as private citizens, but cannot refuse to perform their jobs.  Moore and Walker suggest that if government workers are asked to perform tasks that violate their religious beliefs, such as issuing same-sex marriage licenses, they should resign in protest, rather than subvert the Court ruling.

Moore and Walker make a distinction, however, between government workers who are charged with implementing the law (like Kim Davis, the Kentucky woman who refused to issue marriage licenses to gay couples and was jailed for contempt of court) and business owners (such as Christian florists or bakers) who might, as a matter of religious liberty, properly refuse to allow their private businesses to participate in same-sex weddings.