Analysis: A Distinction Between Law and Sacrament

The core legal fight over same-sex marriage in the United States ended on Friday, teeing up a political argument that will reverberate throughout the election cycle.

The U.S. Supreme Court ruled that same-sex couples have a constitutional right to marry, and that Texas and all states must recognize those unions.

It’s funny to watch so many smart lawyers trying to figure out the difference between church and state, between religion and civics.

That’s the problem with culture wars. They are designed to conflate those things, and it becomes difficult to separate what happens in places of worship from what happens everywhere else.

The court didn’t say states have to allow same-sex couples to marry in churches. Religion is protected, in that way, from what’s happening out here in the world.

The ruling doesn’t obligate anyone to bless those couples, to smile at them, or to look them in the eye. But the government can’t join in the disdain for same-sex marriage that is and has been spilling out of some places of worship. That’s not what the states are supposed to do.

It is a real stretch to claim that religious freedom is somehow threatened if others don’t follow the laws of your church. It doesn’t work in court. But it works in politics, and we are in the early stages of a big political cycle.

In the grand tradition of electoral politics, Gov. Greg Abbott responded to the ruling with a fundraising appeal.

“Marriage was defined by God,” he wrote in an email to potential supporters within hours. “No man can redefine it. If you agree, I ask that you make a contribution to my campaign today.”

That’s not incorrect enough to be a lie — it’s just a narrow way of looking at things. The courts, in fact, get to describe what constitutes a legal marriage. Religious people can decide what they think is a marriage in the eyes of God. Abbott, a Catholic, a lawyer and a former judge, is speaking here from the pulpit and not the bench.

Justice Anthony Kennedy, writing from the bench, laid down the fresh legal description on Friday:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

In his note, the governor blasted the court’s ruling, but also said, in effect, that the court didn’t take anything away from anyone.

“Despite the Supreme Court’s ruling, Texans’ fundamental right to religious liberty remains protected,” Abbott wrote. “No Texan is required by the Supreme Court’s decision to act contrary to his or her religious beliefs regarding marriage. But we need to keep up the fight to uphold our fundamental rights, or they will continue to disappear. We will fight for greater protections in Texas like the Texas Religious Freedom Restoration Act and the Pastor Protection Act, which I just signed into law.”

Read what he wrote again: It’s not about rights; it’s about fights. The high court settled a legal question and also framed the 2016 primary elections in Texas and elsewhere, setting up litmus tests for candidates based on which side of this particular battlefield in the culture war they choose.

A dozen years ago, in a case that started in Texas, the Supreme Court decided that intimate relations between people of the same sex are not illegal. Now they have decided that same-sex marriage is legal.

Some supporters of a same-sex marriage ban sought to impose their religious practices and beliefs on others, using the mechanism of the state to accomplish that. In Texas, as elsewhere, voters agreed, putting one-man, one-woman marriage language in the state constitution.

As a matter of law, that Defense of Marriage provision is now as powerless as the Confederacy.

Believers can kick people out of their churches. They can deny people their sacraments. But they can’t tell people that getting licensed for a certain set of rights depends on the gender of their partners.

The political fight — the culture war — didn’t stop 12 years ago. There is no reason to think it’s going to end now.