Ryan Anderson's Road Map for Marriage Resisters

The Heritage Foundation’s Ryan Anderson, celebrated as the anti-marriage movement’s fresh young face, is promoting his new book Truth Overruled: The Future of Marriage and Religious Freedom, which promises to tell anguished opponents of marriage equality how to respond in to the Supreme Court ruling that same-sex couples have a constitutional right to be legally married. Anderson’s book will be available July 20, but there’s probably no need to order it, since he has been flooding the media with his analysis of the ruling and advice about what anti-equality Christians should do in its wake.

Anderson is a protégé of Robert George, the Princeton professor and current intellectual godfather of the anti-gay movement. Like George, Anderson has made the case that the dispute over marriage is not about discrimination but about definition. Same-sex couples cannot be married, they argue, because marriage is by definition a relationship between a man and a woman, “uniting comprehensively, creating new life, and uniting new human beings with their mother and father.”

Anderson repeats that argument in his legal analysis of the Supreme Court’s ruling at Public Discourse, complaining that Justice Anthony Kennedy did not seriously engage with the main arguments of anti-marriage-equality advocates in his majority opinion. Anderson is unmoved by analogies to bans on marriage by interracial couples:

The problem with the analogy to interracial marriage is that it assumes exactly what is in dispute: that sex is as irrelevant to marriage as race is. It’s clear that race has nothing to do with marriage. Racist laws kept the races apart and were designed to keep whites at the top. Marriage has everything to do with men and women, husbands and wives, mothers and fathers and their children, and that is why principle-based policy has defined marriage as the union of one man and one woman.

Anderson has previously pointed to the anti-abortion movement as the model for long-term resistance to marriage equality. Since the Court’s ruling in Obergefell, Anderson has been more explicit about what the strategy means. In a panel discussion at the Heritage Foundation on June 30, Anderson declared, “The central thesis of my new book…is that the pro-marriage movement is in the same exact situation culturally that the pro-life movement found itself in 42 and a half years ago after Roe v. Wade.”  In the 40 years since the Roe v. Wade decision, that movement has been all too successful at getting legislatures to restrict women’s ability to access reproductive health care, and at convincing courts to go along. In the Boston Globe, Anderson explained how that happened:

The pro-life community stood up and responded to a bad court ruling. Academics wrote books and articles making the scientific and philosophical case for life. Statesmen like Henry Hyde, Edwin Meese, and Ronald Reagan used the bully pulpit to advance the culture of life. Activists and lawyers got together, formed coalitions, and devised effective strategies.

At Heritage, Anderson identified three steps taken by abortion foes that he says must now be pursued by anti-marriage-equality advocates.

  1. Identify the decision as illegitimate judicial activism.
  2. Act to protect the rights of “conscience.”
  3. Wage a long-term campaign of “rebuilding a truthful, strong marriage culture” to “bear witness to the truth” within a culture that has been told a lie, in this case about the nature of marriage. This will be a long-term, “generational” effort, “something our children and grandchildren will be responding to.”

Anderson and other right-wing leaders have certainly been ready to carry out his first piece of advice, denouncing the ruling as judicial activism and, in Anderson’s words, “a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of one man and one woman.” His mentor Robert George responded in kind, saying, “we must reject and resist an egregious act of judicial usurpation. We must, above all, tell the truth: Obergefell v. Hodges is an illegitimate decision.” Anderson’s colleague Matthew J. Franck, called it an “appallingly illegitimate decision.”

As for the second step, acting to protect the “rights of conscience,” Anderson says, “There is an urgent need for policy to ensure the government never penalizes anyone for standing up for marriage. We must work to protect the freedom of speech, association, and religion of those who continue to abide by the truth of marriage as one man and one woman.”

Anderson and other anti-equality leaders are pushing for passage of the so-called First Amendment Defense Act in Congress, and for passage of similar laws at the state level. He says that the First Amendment Defense Act would allow individuals, organizations, and businesses to “act on the belief that marriage is the union of a man and a woman” – in other words, to discriminate against same-sex couples without facing any legal consequences.

Just as the pro-life movement ensured that no pro-life citizen would ever have to pay for an abortion or perform an abortion, so too must we work to ensure no one is coerced on marriage. Rather than forcing people and institutions of faith to go to court for their religious liberty, this bill would prevent the government from ever acting unjustly in the first place.

As we noted recently, this strategy has the potential to lead to increasing restrictions on the ability of same-sex couples and their families to experience the equal dignity the Court has said they deserve.

Shortly after the Supreme Court’s ruling in Roe v Wade, laws were passed to allow doctors who had religious objections to performing abortions to refuse to do so without experiencing negative professional consequences. There has been little opposition to such laws. But over the past few decades, at the urging of anti-abortion activists, the scope of that kind of religious exemption has been expanded wildly to include people ever-further removed from the actual abortion procedure, and expanded to include even marginal participation in the provision of contraception. In emergency situations these accommodation could come at high cost, including the life of a patient.

Exemptions have been extended to or claimed by nurses who don’t want to provide care to women after an abortion, pharmacists who don’t want to dispense a morning-after pill prescribed by a woman’s doctor, even a bus driver who refused to take a woman to a Planned Parenthood facility because he said he suspected she was going for an abortion.

Law professors Douglas NeJaime and Reva Siegel describe these as “complicity-based conscience claims” – claims that are about refusing to do anything that might make one complicit in any way with another person’s behavior that one deems sinful. They note that the concept of complicity has been extended to allow health care providers not to even inform patients that some potential care or information has been withheld from them based on the religious beliefs of an individual or the policies of an institution.

The resistance to complying with the requirement under the Affordable Care Act that insurance plans cover contraception takes the notion of complicity to almost surreal lengths.  Just days after the Hobby Lobby decision, the Court’s conservatives sided provisionally with religious conservatives who are arguing that it is a burden on their religious freedom even to inform the government that they are refusing to provide contraceptive coverage, because that would trigger the process by which the coverage would be provided by others. Cases revolving around the simple act of informing the government of an objection are working their way back toward the Supreme Court….

Given what we know about the intensity of the anti-gay movement’s opposition to marriage equality, it is not hard to imagine how far that movement could run with the principle that religious beliefs about “traditional” marriage are a legitimate basis for discriminating against same-sex couples.

As for Anderson’s final step, waging a generational culture war to promote the idea that marriage can only exist between a man and a woman, he offers several strategies:

  1. Conduct “rigorous social science” on family structures, which he says could be used to sway future conservative justices to overturn Obergefell. Anderson is editor of Public Discourse, published by the Witherspoon Institute, which is probably best known for financing the notorious Mark Regnerus study on “family structures,” which anti-equality groups continue to cite even though the study and the way it has been used by marriage equality opponents have been thoroughly discredited.
  2. Use “better spokespeople.” Anderson says the movement should make more use of gays and people raised by same-sex couples who oppose marriage equality.  Anderson complained at Heritage that both groups filed amicus briefs but that the Court did not acknowledge either.
  3. Live out “the truth about marriage” by demonstrating the beauty, truth, and holiness of one-man, one-woman marriage. Anderson acknowledged that gay and lesbian people did not cause family breakdown, heterosexuals did that through contraception, divorce, and other aspects of the sexual revolution. “Justice Kennedy’s philosophy of marriage is the natural result, the logical result, of the past 50 years of the breakdown of the American family. It’s the natural, logical conclusion of the sexual revolution.” Anderson said "We have ourselves to blame” for 50 years of “failing to live out the truth about marriage.”  Still, he said, “redefining marriage will not do anything to strengthen the family; but it will likely make the family even weaker.”

Anderson has achieved folk-hero status among the anti-gay right and many are likely to follow his road map. The National Organization for Marriage is praising his “encouraging words and advice” on how to “continue the fight to defend marriage as it has always been defined – the union between one man and one woman.”