The Second Chances Act is a brilliant piece of work by two of the nation’s leading pro-marriage liberals. (Full disclosure: The authors kindly give me far more credit than I am due by including me in a list of people to be thanked for “contributions,” which in my case consisted of attending one meeting in which an early draft of the report and the legislation was presented.)

The Second Chances Act proposes new model legislation that includes a one-year waiting period for divorce, along with a requirement that parents of minor children considering divorce take a short online divorced parenting education course, which would include information on reconciliation. Spouses could trigger the one-year waiting period without actually filing for divorce by sending their mates a formal letter of notice. These requirements would be waived in cases of domestic violence.

Now, some might ask, “Unnecessary divorce? What’s that?”

The genesis of the Second Chances Act was Minnesota Judge Bruce Peterson’s observation that at least some of the people he was seeing in his court looked like they needed a “rest stop” on the “divorce superhighway.” “When Judge Peterson looked at his own court system, widely acknowledged as a progressive one,” Sears and Doherty write, “he saw attempts to meet nearly every need of divorcing couples—legal and financial assistance, protection orders, parenting education, and more—except for reconciliation.”

The assumption of the entire legal system is that by the time a person files for divorce, the marriage is already dead. Amazingly, no one really even asked how many people filing for divorce would be interested in reconciliation.

So Doherty teamed up with colleagues to do some groundbreaking and original research, testing that assumption.

What they found shocked the family law community: “New research shows that about 40 percent of U.S. couples already well into the divorce process say that one or both of them are interested in the possibility of reconciliation.” In about 10 percent of divorces, both the husband and the wife are interested in reconciliation (likely unbeknownst to either of them).

“This finding is stunning,” Sears and Doherty point out. “It tells us that we have a major new opportunity to help millions of American families. . . . The research findings presented in this report clearly suggest that today’s very high U.S. divorce rate is not only costly to taxpayers, it is not only harmful to children, it is also, to a degree that we are only now understanding, preventable.”

How do we know that a divorce is unnecessary? Let’s put it this way: If a divorce can be prevented by creating a one-year waiting period and giving both spouses information on reconciliation, then it certainly is an unnecessary divorce. And according to recent studies, there are many divorces that could have been prevented in just this way.

In a well-controlled study, economist Leora Friedberg found that states with longer waiting periods have had smaller increases in divorce rates than states that have shorter or no separation requirements. Indeed, a 2009 study on Western Europe by Thorsten Kneip and Gerrit Bauer, “Does Unilateral Divorce Raise the Divorce Rate,” found that 80 percent of the increase in divorce rates between 1970 and 1990 could be attributed to eliminating or shortening waiting periods.

The scientific case for the impact of waiting periods in reducing divorce is not bullet-proof, these scholars acknowledge. But Doherty and Sears suggest that a one-year waiting period, combined with a parenting education class that puts interested couples in touch with reconciliation resources, should have an even bigger impact than waiting periods alone.

At the root of this discussion, however, is the larger question: Why should we try to reduce unnecessary divorce at all?

First, unnecessary divorce hurts children. Doherty and Sears sum up the social science evidence:

We now know that divorce on average has dramatic effects on children’s lives, across the life course. Research shows that divorced fathers and mothers are less likely to have high-quality relationships with their children. Children with divorced or unmarried parents are more likely to be poor, while married couples on average build more wealth than those who are not married, even accounting for the observation that well-off people are more likely to get married. Parental divorce or failure to marry appears to increase children’s risk of failure in school. Such children are less likely to finish high school, complete college, or attain high-status jobs. Infant mortality is higher among children whose parents do not get or stay married, and such children on average have poorer physical health compared to their peers with married parents. Teens from divorced families are more likely to abuse drugs or alcohol, get in trouble with the law, and experience a teen pregnancy. Numerous studies also document that children living in homes with unrelated men are at much higher risk of childhood physical or sexual abuse.

These studies generally adjust for parental education and income, which means that the negative effects cannot be explained by these demographic factors.

Second, the majority of people who divorce do not go on to make a happier marriage. If they re-marry, they re-divorce, putting themselves (and their kids) on a relationship merry-go-round.

Third, divorce costs taxpayers money. A 2008 study by economist Ben Scafidi, “The Taxpayer Costs of Divorce and Unwed Childbearing,” estimated that family fragmentation costs the taxpayers at least $112 billion each and every year

What’s the payoff for America’s children?

Doherty and Sears say that rolling family fragmentation back to the levels of 1980 would result in “half a million fewer children suspended from school, about 200,000 fewer children engaging in delinquency or violence, a quarter of a million fewer children receiving therapy, about a quarter of a million fewer smokers, about 80,000 fewer children thinking about suicide, and about 28,000 fewer children attempting suicide.”

28,000 fewer children attempting suicide? Now that’s a second chance worth taking.

Maggie Gallagher is a co-founder of the National Organization for Marriage and host of The Maggie Report (www.maggiereport.com).

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The odd thing about “progressive” tropes is their peculiar, static, timeless quality.

For progressives, time stands still. Each new generation is posed as poised to break through taboos that, in truth, vanished long ago.

The modern youngish woman like Kate (mateless and childless at 39 years of age) must find a way to view her sexual predicament as a social breakthrough, a revolutionary act, an act of liberation from her mother’s restricted and restrictive norms.

“In 1969, when my 25-year-old mother, a college-educated high school teacher, married a handsome lawyer-to-be, most women her age were doing more or less the same thing. . . . She’d never had sex with anyone but my father. Could she have even envisioned herself on a shopping excursion with an ex-lover, never mind one who was getting married while she remained alone?” Kate wonders.

Kate is probably the very last generation of (not very) young women who can even imagine themselves re-enacting this fantasy of sex as liberation. She is the very last generation of women whose mothers married young in a world that frowned on premarital sex, had children with husbands and—because any actual marriage is finite and human longing is infinite—fantasized a better, bigger life and marriage for their daughters than the humdrum reality of married love.

I know. At 51, I’m about a decade older than Kate. My son is just a decade younger.

The next generation of Atlantic cover girls on marriage will have mothers who had too much sex before marriage, and perhaps even afterward, who came of age in a society that celebrated casual sex, divorce, unwed-motherhood, abortion.

Your mother’s been there, done that.

Of course, that will not stop the “progressive” young women from trying to find some way their ongoing sexual perplexities represent a revolutionary advance for women.

But because Kate is an honest woman, her essay reads like a dreary slog through the gap between myth and reality of the sexual revolution.

Kate goes back to speak to younger women today, and is appalled by what she finds among 20-somethings:

Most of them said that though they’d had a lot of sex, none of it was particularly sensual or exciting. It appears the erotic promises of the 1960s sexual revolution have run aground on the shoals of changing sex ratios, where young women and men come together in fumbling, drunken couplings fueled less by lust than by a vague sense of social conformity.

What caused the “de-eroticization of sex,” she wonders.

Who exactly are the new enemies of Eros?

Sex has been divorced from meaning. Men are not being raised to be good family men, and women are not being raised to appreciate good family men. And men are failing to become the kind of men women want. Porn is available for all as a substitute for life.

So Kate, facing a future without children or marriage, wants to celebrate singleness and to kill her youthful idealization.

“Everywhere I turn, I see couples upending existing norms and power structures,” she says, citing a friend who fell in love with her dog walker, a man 12 years younger, with whom she stayed for three years “and are best friends today.”

Well, everywhere I turn in Kate’s essay I see women doing the best they can to celebrate the best they feel they can get, and it’s unbearably sad.

The truth is celebrating singleness—i.e., celebrating “not doing something”—makes no sense. Loving is better than not loving. Choosing to love and commit to a husband or a child is a much higher ideal than choosing not to; that’s why it needs to be celebrated and idealized.

Of course, not everyone marries or becomes a mother, and of course every human life has other possibilities for meaning, and other forms of love to give.

But all of these other loves—the aunt, the grandparent, the best friend—came into being because somewhere some woman gave herself to the independence-shattering act of making a family.

The decline of manhood and norms around sex, marriage, and family produces for young women what may in fact have to be endured—but celebrated? Not after reading Kate’s essay.

Maggie Gallagher is a co-founder of the National Organization for Marriage and host of The Maggie Report (www.maggiereport.com).

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Boy, did it succeed.

Sen. Jim DeMint of South Carolina, Congressman Steve King of Iowa, and the founder of the American Principles Project, Princeton Professor Robert George, asked the questions. (Full disclosure: Professor George is also the founding chairman of the National Organization for Marriage, which I co-founded).

Five major GOP candidates stood nakedly on the stage, taking deep questions about constitutional principles—without a podium or a reporter in sight—for 20 minutes.

Strong, new, and newsworthy commitments emerged from almost all of the candidates on social issues, aka “civil rights.”

For the first time, presidential candidates were asked: Does the 14th Amendment’s guarantee of equal protection apply to unborn human beings, and if so, doesn’t Congress have express constitutional authority to enforce this guarantee?

(Herman Cain told me afterward that this was the one question that surprised him.)

Michele Bachmann opened ground on the life issue by saying “yes,” while Mitt Romney showed he understood George’s question by saying he would decline to create a “constitutional crisis” over the issue by confronting the court and instead would pledge to appoint justices who would interpret the Constitution correctly.

Ron Paul retreated to his Maginot Line of “states rights.” Murder, he points out, is a state issue and so should abortion be. Well, yes, pointed out George, unless and until some state decides to deprive a whole class of human beings of the protection of their lives, in which case the 14th Amendment expressly authorizes Congress (not the courts) to step in to remedy this gross violation of civil rights.

Also newsworthy: For the first time, all the major contenders (except Texas Gov. Rick Perry) have pledged to nominate a vice presidential candidate who supports life and marriage. Romney at first left himself some wiggle room, but in the end firmly committed to a pro-life, pro-marriage veep: “These are important enough issues that the person I select would share my views,” he promised.

And for the first time, major presidential candidates committed to protecting people and religious organizations in danger of being excluded from the public square because they do not support gay marriage or gay adoption.

George raised the issue of Catholic and Protestant adoption and foster care agencies in Illinois that are being excluded from participating in helping children because they do not place children with same-sex couples in civil unions.

Romney lived through this kind of thing in Massachusetts, where he was one of the few public voices standing up for Catholic Charities’ rights to help orphaned and abused children—and he was eloquent about the principles involved:

“I believe in religious tolerance and religious liberty,” Romney said. “That means, to me, we are not going to force people of faith to violate their faith in order to practice their professions … I’m not one of those who says get rid of the conscience protections,” thereby forcing people to do things that violate their faith.

Romney went on: “I would say in Massachusetts, about half of adoptions were being placed by Catholic Charities. And they were excluded because they would not place children in homes with same-sex couples. That’s a mistake; we should permit people to apply their faith,” especially when there are many other agencies who can deliver services.

Two people were missing in Columbia: Perry, who was drawn away by the urgent wildfires spreading across Texas, and former Sen. Rick Santorum of Pennsylvania.

As arguably one of the more principled conservatives in the race, I missed hearing what Santorum could have added to the debate over the powers of Congress under the 14th Amendment to guarantee equal protection to unborn human beings.

But thanks to the APP Palmetto Freedom Forum, he, like Michele Bachmann, has an opportunity to pick up the 14th Amendment gauntlet Mitt Romney deemed too hot to handle.

Maggie Gallagher is a co-founder of the National Organization for Marriage and host of The Maggie Report (www.maggiereport.com).

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Presidential candidates for the 2012 election need to know that marriage is not only an essential issue in this race; it is a winning issue.

Elites have sounded the death knell on the marriage debate again and again, but popular support for traditional marriage refuses to die. Americans at the ballot box have repeatedly shocked elite opinion by demonstrating that even in deeply blue states a majority of Americans continues to oppose same-sex marriage.

This May, a poll commissioned by Public Opinions Strategies for the Alliance Defense Fund found that 62 percent of those surveyed agreed with this statement: “I believe marriage should be defined only as a union between one man and one woman.” Fifty-three percent strongly agreed, while just 35 percent disagreed.

Yet recent polling also reflects that Americans in the mushy middle are no longer hearing much about the opposition to same-sex marriage. Their willingness to express support for a traditional understanding of marriage is starting to shift, depending on how the question is posed to them and what other questions surround the polling question.

This shift means something: when the issue is framed as one of fairness or equality, Americans are now reluctant to disagree with gay marriage, but when it is framed as a moral or family issue, they continue to adhere strongly to traditional norms of marriage.

As Ken Blackwell recently put it, marriage is not a wedge issue but a bridge issue, creating strange bedfellow coalitions never before seen in American politics across lines of race, creed, and color.

Nonetheless, the campaign to silence opposition to gay marriage by reframing it as illegitimate hatred or bigotry is effective: those who defend marriage as the union of one man and one woman suffer consequences.

Write a book on marriage, and mainstream corporations will fire you. Ask Frank Turek, who claimed that his contract with Cisco was terminated when a human resources executive found out through Google that he had written a book opposing same-sex marriage.

Appear in an advertisement opposing same-sex marriage, as Maine’s Don Mendell did, and your professional license might be jeopardized or taken away.

Donate to pro-marriage organizations—or simply to a group that supports a candidate who also happens to support marriage—or ask a sitting Congressman who opposes gay marriage to address your business group—and you will meet with threats to your economic interests and your business enterprises from those who do not see same-sex marriage as an issue about which Americans of good will can and do disagree. Instead, you will be charged with failing to realize that same-sex marriage is today’s defining civil rights issue, opposition to which marks you as a bigot outside the American mainstream. Ask, for example, the Wilton Manor Business Association of South Florida, which yielded to boycott threats by retracting their invitation to Rep. Allen West.

Advocates of gay marriage are not slow to use any lever of power, including government, to impose their new morality on America. The primary goal of the existing gay marriage movement is to use cultural, social, economic, and political power to create a new norm: marriage equality. The governing idea behind “marriage equality” is this: there is no difference between same-sex and opposite-sex unions. If you see a difference, there is something wrong with you. “You’re a hater, you’re a bigot, and you need to be fired!” Watch out.

So why is marriage, the one issue that the progressive left is energetically making too radioactive even to address, also the one issue that a candidate committed to American civilization cannot evade, avoid, or downplay?

The first reason is the nature of marriage itself.

Every human society has recognized that there is something special about the union of husband and wife. Amid the spectacular myriad of relationships that human beings create, marriage is unique for a reason: these are the only unions that can create life and connect those new young lives to the mother and father who made them.

For same-sex marriage advocates to make good on their promise of marriage equality, the very idea that children need a mom and dad must be delegitimized, rendered unspeakable in polite company. Same-sex marriage represents an intellectual and moral repudiation of the idea that marriage is grounded in any human reality outside of government, that government is obligated to respect and protect. Marriage is becoming an idea at the mercy of changing fashion, without deep roots in human nature.

And our current marriage culture is in serious trouble. According to a new Brookings Institution report by two major family scholars (Brad Wilcox and Andrew Cherlin), “the sexual disorder that marked the underclass in the sixties has moved up the class ladder well into Middle America.”

The study discovered that by the late 2000s, “moderately educated American women were more than seven times as likely to bear a child outside of marriage as compared with their college-educated peers.” While college-educated mothers showed a six-percent rate of nonmarital births, the rate of nonmarital births for moderately educated mothers was closer to the rate for mothers that do not have high school degrees—44 percent and 54 percent, respectively.

Add to these statistics that 43 percent of moderately educated young adults between ages 25 and 44 report that “marriage has not worked out for most people they know,” while only 17 percent of highly educated young adults report this.

The collapse of our marriage culture has economic costs. The cost to taxpayers of our rising rates of fatherlessness and fragmentation is at least $112 billion each year, as government expands to meet the needs of children in broken families. (For more statistics, see Benjamin Scafidi’s economic analysis, “The Tax Payer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and All Fifty States.”)

All of these children in fatherless homes are casualties of the deepest idea of the sexual revolution: human institutions that limit sexual desire must be remade in order to achieve “maximum feasible accommodation” with adult sexual desire.

Same-sex marriage will contribute further to the erosion of our marriage culture by making it unacceptable to say that children need married moms and dads. Our goal should not be to strengthen Americans’ commitment to good romances, but to strengthen our commitment to marriage as a social institution dedicated to bringing together male and female so that children have mothers and fathers. In that institution, the government clearly has a stake because it is so vital to the common good.

Far from being a neutral or pro-liberty position, same-sex marriage amounts to a government takeover of an ancient and honorable institution. Here, there are deep similarities philosophically between the abortion and gay marriage movements. At the heart of each movement is the belief that by re-jiggering words, elites change reality itself. A human life can be redefined as a cluster of cells. Marriage can be remade to mean whatever the government decides. Reality itself can be re-mastered to accommodate sexual desires.

But in truth, government cannot create life, and did not create marriage, and government has no business redefining either.

The second thing at stake in the marriage debate is the relationship between Christianity (and Judaism) and the American tradition itself.

The new public norms at the heart of “marriage equality” attempt to deface the Bible by ripping out Genesis and remaking the American tradition, so that public norms are incompatible with orthodox Judeo-Christian beliefs. For the first time in American history, mainstream, orthodox Judeo-Christian beliefs will render an American a second-class citizen, subject to a variety of bars and exclusions government imposes to reduce the reach of “anti-equality” bigotry.

It’s hard to see what conservatives will have left to conserve if we accept this, especially at the most fundamental level (which is the philosophical level, the level on which America is founded and sustained, for we are a nation conceived in liberty and dedicated therefore to propositions).

How should a candidate strengthen his or her commitment to upholding marriage? A first step is to sign NOM’s Marriage Pledge, which includes the following five concrete actions:

1. Support and send to the states a federal marriage amendment defining marriage as between one man and one woman.
2. Defend the Defense of Marriage Act (DOMA) in court.
3. Appoint judges and an attorney general who will respect the original meaning of the Constitution.
4. Appoint a presidential commission to investigate harassment of traditional marriage supporters.
5. Support legislation that would return to the people of Washington, D.C., their right to vote for marriage.

Beyond signing the pledge, GOP candidates should also make the steps below part of their platform:

1. Speak for marriage as the union of husband and wife that is unique for a reason: children need mothers and fathers. A good society will acknowledge the need to help children in all family forms, but will aim for a state where children are raised in the most favorable situation: a stable two-biological-parent family.
2. Develop new strategies to protect and expand religious liberty, which is being relentlessly threatened by a newly energized and aggressive progressive elite. A model to follow is Arizona’s new law that protects religious student groups from discrimination at public universities because the groups require adherence to orthodox religious beliefs and practices. Employment discrimination laws may need to be amended to protect traditional marriage supporters. A playing field where the law protects those who enter gay marriages from economic injury, but where defending the content of Genesis can also get you fired, is not fair or level or just.
3. Fund research on marriage, and especially research on interventions to strengthen marriage. Reduce unnecessary divorce and lower the rate of out-of-wedlock pregnancy without undermining parental rights or religious liberty.
4. Use your bully pulpit to promote the Second Chances Act and other reasonable reforms of no-fault divorce.
5. Ask Hollywood to look for ways to help promote marriage. Use the cultural influence of the White House to launch a new generation of artists and storytellers committed to telling the real truth about love and marriage.
6. Foster and reward a new generation of empirical social scientists willing to brave political correctness to investigate the benefits of marriage. The empirical culture wars are won and lost at the level of elites. Use the power of the presidential office not to interfere in science, but to encourage a new generation of scientists that is willing to go fearlessly wherever the data actually leads.

The stubborn common sense of the American public in resisting same-sex marriage, even in the face of the mainstream media’s approval, provides a platform for presidential candidates to seize, and thereby not only resist a radical transformation of the American tradition, but also help build a culture committed to a core American idea: moral truth exists, and our rights (including our right to marriage) are not gifts of government, but are grounded in and bounded by Nature and Nature’s God.

Maggie Gallagher is a co-founder of the National Organization for Marriage and host of The Maggie Report (www.maggiereport.com). This essay is part of the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond”
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to its Survival”
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery”
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

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Support the work of Public Discourse by making a secure donation to The Witherspoon Institute.

Copyright 2011 the Witherspoon Institute. All rights reserved.

My friend and colleague Brian Brown just sent me an email with the subject ”California burning”:

I’m overwhelmed here but thought you should see this news report.

I’ve never seen anything like this. In Orange County there are angry protesters screaming at Yes on 8 people on random street corners. Vandalism is widespread with our signs being removed an hour after being put up . . . or spray-painted with NO over Yes on 8 during the night. People are using paint to mark Yes on 8 or No on 8 on their cars and property.

I don’t know if the national media have caught on to just how central Prop 8 has become to this election in California.

By November 4th, the Yes on 8 campaign will have generated more than 60,000 donors, over 30-million dollars, and hundreds of thousands of volunteer hours on the marriage amendment. Voters in Arizona and Florida will also have a chance to weigh in on marriage this November 4th.

The campaign in California is centering on the question: will public schools teach gay marriage? Polls began to swing strongly in favor of Prop 8 once campaign ads began to suggest that if Prop. 8 loses, children will be taught in public school that two men can get married. Public schools are an important issue in itself but voters’ concern about them is also a proxy for the larger questions: How will gay marriage change what the next generation believes about marriage?

Why does the legal definition of marriage matter to so many people? Why are so many people of diverse creeds and colors coming together, and braving petty vandalism and pettier insults, to speak for marriage as the union of husband and wife?

The Meaning of Marriage

For many of us, the place to begin is to recognize one simple idea: government did not create marriage. Marriage has its roots deep in human nature, based as one Connecticut Supreme Court Justice recently wrote ”in biology, not bigotry.”

Marriage is a virtually universal human social institution. Despite hundreds of important variations, everywhere marriage has a certain recognizable shape: Marriage is a public union, not just a private union, it’s a sexual union not some other kind of union, between a husband and a wife (at least one of each) in which the rights and responsibilities of the couple toward each other–and toward the children of their union–are publicly defined and supported, and not merely left up to each individual to privately work out.

Marriage as a universal human idea has deep roots in three enduring truths about human beings everywhere: Sex between men and women makes babies, society needs babies, and babies need a father as well as a mother.

Put it this way: When a baby is born, there is bound to be a mother somewhere close by. If we want fathers to be there both for their children and the mothers of their children, biology alone will not take us very far. Clearly we need a cultural mechanism for connecting fathers to the mother-child bond, and for communicating to the next generation of young people in the throes of erotic and romantic dramas that they have a serious obligation to act in ways that will protect the children their bodies make together.

The word for this connection, in this and virtually every known human society, is marriage.

Marriage points to the great truth: men and women need each other, and our children need both of us. Not everyone has a mother and father, and we offer important protections and concern for children in all family forms. But marriage represents the visible incarnation of an important shared ideal–and a practical teacher of a great set of core truths. Marriage is civilization’s great effort to connect sex, love, money, babies, men and women, mothers and fathers.

If we let courts or politicians change this definition of marriage, this great historic cross-cultural meaning of marriage will be replaced by the new government dogma (er, legal principle) upon which gay marriage is based: There is no difference between same-sex unions and opposite-sex unions; anyone who thinks otherwise is just a bigot.

Our children will be taught this new dogma in hundreds of ways, and the old marriage idea–marriage matters because children need a mother and a father–will be publicly discredited as discriminatory.

Religious Liberty Conflicts

Same-sex marriage will also affect religious individuals and religious institutions. The relationship between the government and the major faith traditions of our country will change in ways that threaten the traditional liberties of these faith communities.

The religious liberty implications flow from the gay marriage movement’s attempt to make ”gay the new black,”–to make orientation exactly the same as race, as the California Supreme Court explicitly declared.

Equality, especially racial equality, trumps religious liberty in our constitutional scheme. Indeed just a few weeks after declaring that same-sex marriage is a constitutional right (because sexual orientation is a protected class just like race), the California Supreme Court explicitly affirmed that the government has the right and obligation to punish a Christian doctor who refused to perform the insemination procedure on a lesbian couple. Treating two women in a union any differently than a husband and wife is now the same as discriminating on the basis of race under California law–and it is a well-established principle of law that religious beliefs do not give an individual or an institution a right to violate norms of racial equality.

Key leaders of the gay marriage movement understand that to move beyond tolerance–that is, to get to the place where orientation is treated just like race under U.S. law–they have to redefine marriage. As long as the law says ”marriage means a husband and wife,” the people and faith communities who also believe this cannot be treated as the moral or legal equivalent of the racists who opposed interracial marriage.

Taking the Interracial Marriage Analogy Seriously

The quickest way to see the impact of same-sex marriage and civil unions (which endorse the same legal principle) is to ask: How does the law treat racists who oppose interracial marriage?

We do not throw such people in jail. But the government uses a broad array of powerful tools to marginalize, stigmatize, and repress people who hold ideas that the government has defined as fundamentally counter to basic democratic norms of equality.

Licensing

Licensing is one big arena. Catholic Charities was driven out of the adoption business after the Massachusetts court ordered gay marriage–because it is a felony to run an adoption agency without a license and the state requires licensees to treat a union of two men just the same as a husband and wife. As Prof. John Garvey, dean of the Boston College of Law succinctly summed up: ”State Putting Church Out of the Adoption Business.”

Similarly, the California Supreme Court recently said the government can punish a California physician for failing to inseminate a lesbian couple.

Other licenses may be effected, especially professional licenses–physicians, social workers, marriage counselors, psychologists, attorneys, and teachers.

State Tax Exemptions

The most powerful tool, short of the criminal law, that the government has is the threat of the withdrawal of the tax exempt status (state or federal) of schools and charities that violate fundamental public policy (such as racist organizations).

This issue has been litigated all the way to the Supreme Court, with regard to the issue of interracial marriage. A fundamentalist university that forbade interracial marriage and dating was stripped of its tax exempt status by the IRS. And the Supreme Court ruled that there is not First Amendment right to tax exempt status. The government can in fact punish religious groups in this way if they violate public policy.

In this regard it is chilling to note that within a few months of the passage of New Jersey’s civil union law, a Methodist group was stripped of part of its state real estate tax exemption because it refused to permit civil union ceremonies on property that it permitted any group to use for weddings.

Emerging Conflicts

The single best short guide to the legal consequences for Catholics and other faith communities of the legal endorsement of ”no different” equality though same-sex marriage is the new book Same-Sex Marriage and Religious Liberty: Emerging Conflicts whose editors include Prof. Douglas Laycock (one of the nation’s most respected religious liberty scholars) and Anthony Picarello (general counsel to the United State’s Council of Catholic Bishops).

The third editor, Prof. Wilson (who takes no position on same-sex marriage), explains that ”the demand for same-sex unions will result in a torrent of litigation, just as the assertion of abortion rights after Roe did, if legislatures fail to decide ex ante whether there is a duty to assist or, conversely, a right to refrain. Given the status of most churches and religious organizations as state nonprofits and federally tax-exempt organizations, public support arguments will surely be advanced to compel religious groups to participate in same-sex marriage. Thus, religious organizations in Massachusetts (and perhaps soon other states that embrace same-sex marriage)–as well as in states with domestic partnership or civil union laws–may reasonably worry that litigation will be required to defend their choice to refrain from participating in same-sex unions.”

The Washington Blade, one of the nation’s leading gay papers, recently took on the same question: ”Could churches in time risk their tax-exempt status by refusing to marry gays?” the paper asked. The nation’s gay newspaper of record basically came to the same conclusion as Prof. Robin Wilson: ”That remains to be seen and will likely result in a steady stream of court battles.”

In theory these negative religious liberty impacts could be addressed by legislation (as happened after Roe) granting broad statutory protections to religious groups. (For example, we could enact the following: ”No individual or organization will be punished by the government, or be denied equal access to any government benefit or privilege, because they define marriage exclusively as the union of husband and wife and confer special benefits or privileges exclusively on married couples so defined”).

In practice, gay marriage advocates have never been willing to accept any robust religious liberty protections in gay marriage or civil unions.

Why not? Two reasons: First, because such protections would imply that acceptance of same-sex unions is not obligatory to the same degree as opposite-sex unions. Second, because for many gay marriage leaders the goal is to use the law to reshape the culture to eliminate ”prejudice” (or perceptions of any difference between gay and straight unions)–just as the law was used to reshape culture on race.

Many gay marriage leaders, in other words, believe people who see marriage as inherently male-female are the moral equivalent of racists and should be treated legally, morally, and culturally just like racists who opposed interracial marriage.

For people who believe this, the religious liberty impacts aren’t a side effect of the legislation–they are the point. Marginalizing, repressing, and stigmatizing the voices of animus and prejudice is a big part of the goal.

Gay rights advocates, when the religious liberty threats are raised, will typically offer legally meaningless words that distract from the real legal threats–e.g. ”clergy will not be required to perform civil union or marriage ceremonies.” Such language merely echoes the limited protection the First Amendment of the U.S. Constitution already clearly provides, instead of addressing the real sources of the huge church-state friction ahead.

Clergy will not be put in jail for refusing to marry same-sex couples. The tax-exempt status of the pulpit itself is most likely quite safe.

But religious schools, hospitals and professionals will almost certainly face new legal pressures–from the withdrawal of equal access to government benefits to threats to licensing, accreditation, and tax exempt status–if marriage-equivalent civil unions or same-sex marriage bills are passed.

Is Marriage Good?

Of course from the perspective of our marriage tradition, comparing gay marriage and interracial marriage is comparing apples and oranges. Bans on interracial marriage were an innovation introduced after the Civil War in a limited number of states; they had no deep roots in common law or religious culture. Everyone acknowledged that a union of a black man to a white woman could be a marriage–which is why these unions had to be banned to maintain a racial classification system in the law. Calling same-sex unions ”marriages,” by contrast, requires the law to redefine the very meaning of the word, and to strip marriage as a public, legal status of its ancient, honorable, and distinctive relationship to responsible procreation.

Bans on interracial marriage, in other words, were about keeping two races separate so that one race could oppress the other–and that was bad. But marriage is about bringing together the two great halves of humanity–male and female–in part so that children can know and be known by, love and be loved by, their own mother and fathers–and that is a great and important good.

The future of marriage is in the hands of voters in California this Tuesday. A majority will have the chance to rebuke not only four activist judges, but an unprecedented campaign of harassment, name-calling, and disrespect aided and applauded by powerful figures (like Mayor Gavin Newsome and Attorney General Jerry Brown).

Voting Yes on Prop 8 will not deprive same-sex couples of a single practical right or benefit under California state laws. Civil unions will continue to provide legal protections for same-sex families.

But the people of California will recover their right to define marriage as a union of husband and wife, for generations to come.

Maggie Gallagher is the President of the Institute for Marriage and Public Policy, and President of the National Organization for Marriage. Her most recent book, co-authored with University of Chicago Professor Linda Waite, is The Case for Marriage: Why Married People Are Happier, Healthier, and Better-Off Financially.

Copyright 2008 The Witherspoon Institute. All rights reserved.