The condemnations of illiberal democracy are frequently shallow because they tend to assume rather than show the coherence of “liberal democracy.”
Leading up to Justice Kennedy’s fateful 5-4 decision, there was plenty of debate on both sides, and the proponents of same-sex marriage emphasized that they just wanted to be treated the same as heterosexual couples. They even coined the deceptively simple slogan, “Marriage Equality.” That was then.
As soon as the proponents of same-sex marriage prevailed in the U.S. Supreme Court, it became clear that the rules of engagement had changed. Debate seems no longer permitted, and “equality” is no longer the goal—neither the reasoning nor result of Obergefell is subject to challenge. Liberals may give lip service to the rights of free speech and religious expression, but like the Orwellian logic of Animal Farm, some rights are “more equal” than others.
For example, following Obergefell, Austin City Councilman Don Zimmerman, a vocal opponent of same-sex marriage, posted a message on Facebook (and later elaborated in a radio interview), stating his concern that the open-ended reasoning of Justice Kennedy’s decision could lead to the extension of constitutional protection to pedophiles, who could claim that their desire for “intergenerational love” required the elimination (or lowering) of the age of consent. Zimmerman’s concern is a big stretch, but then the holding of Obergefell was also unimaginable a decade ago. Certainly Zimmerman’s comment is a valid opinion constituting protected speech under the First Amendment. Or is it? Austin resident Mark Walters filed an ethics complaint against Zimmerman with the city’s Ethics Review Commission, alleging that his remarks violated the city’s personnel policies because they were “unprofessional” and “disrespectful.” Walters’ complaint received sympathetic treatment in the local media. Walters reportedly wants Zimmerman removed from office, but would settle for making him attend “sensitivity training.”
A more troubling example is the LGBT community’s response to Republican Texas Attorney General Ken Paxton’s non-binding, advisory opinion, issued at the request of Lieutenant Governor Dan Patrick (also a Republican) concerning the potential religious objections of government employees (such as county clerks) to the issuance of marriage licenses and performing wedding ceremonies for same-sex couples in the wake of Obergefell. Paxton’s opinion was a mainstream overview of the principles governing religious accommodation in the government workplace, ultimately concluding that employees with bona fide religious objections to participating in same-sex marriages (a highly fact-specific inquiry) should assign such tasks to other employees who do not have such objections. Paxton did not advocate nullification of or civil disobedience to Obergefell, but merely explained the relevant legal authorities under the First Amendment, applicable employment laws, and state and federal Religious Freedom Restoration Acts.
Yet Paxton now faces a State Bar complaint alleging that he violated the rules of professional conduct by instructing county clerks to “break the law.” And approximately 150 lawyers signed a letter threatening to bring charges against Paxton if he doesn’t withdraw his legal opinion. Acknowledging the existence of religious objections to Obergefell, it seems, is tantamount to violating the Constitution and allegedly constitutes grounds for disbarment. This may be nothing but a publicity stunt, but it was widely (and credulously) reported in the local media in Texas.
After Obergefell, LGBT activists are apparently revising their slogan to “Shut Up and Obey.”