The four dissenters included the usually mild-mannered Chief Justice John Roberts, who called the majority opinion “dangerous to the rule of law”: “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”
Chief Justice Roberts also underscored the “serious questions about religious liberty” the decision raises: “Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. . .there is little doubt these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority.”
How did the GOP presidential candidates respond to this decision? What did they promise to do about it? This is the question ThePulse2016.com’s Gay Marriage Report Card seeks to answer.
Unlike most report cards created by advocacy groups, our report card is not an evaluation of the candidates’ formal position or legislative record, but an analysis and report of how they responded to a major event unfolding in real time from the standpoint of those of us who care deeply about life, marriage and religious liberty. We cannot claim omniscience, but we can and do seek honesty and clarity.
In my last report card on GOP candidates’ response to the Indiana crisis, I sketched out a clear template for our evaluation: Did the candidate speak clearly for the bakers, the florists, and other who are losing their livelihood because of their dissent from gay marriage? Did he or she broadcast or narrowcast his view? (That is, within the limits of his or her ability to draw major television media, was he or she willing to do so? Or did he or she prefer a more passive strategy of releasing an announcement and moving on.) Did the candidates support specific legislative measures to protect the jobs and small businesses of Christians and other traditional believers?
We used a similar metric in evaluating GOP candidates responded to the Supreme Court decision finding a right to gay marriage. We looked for the candidate to respond in three ways:
- He or she would clearly and confidently explain that marriage, as the union of husband and wife, is not only “traditional,” it is rationally related to the welfare of children and the common good.
- He or she would clearly state that this Supreme Court decision is not the end of the debate, but as in Roe v. Wade, it is the beginning of a long cultural and moral argument, one with political ramifications. In other words, he or she would not accept (as the Left doesn’t accept when it disagrees with the Court on cases like Citizens United) that the 5-vote majority Supreme Court has the last word in a democracy. Any suggestion that the proper response is merely to say “this is the law of the land and we need to move on” is an automatic F, in other words.
- He or she would offer a specific legislative proposal that he or she could deliver on in the first 100 days of office to protect the civil rights of gay marriage dissenters. What could voters actually expect from the candidate if they give him or her their vote? We do not expect politicians to be magicians. But should the voters elect a Republican Congress and a Republican President, what can they expect to get in terms of concrete, practical protection?
A specific, concrete legislative measure that can be passed by Congress is important for another reason. For too long, I believe, social conservatives have done politics on the cheap, substituting 501(c)(3) activities for direct political engagement. If this continues, the Left will continue on its march to redefine classic Christian (and other believers’) views on sex and marriage as the equivalent of racism.
The precondition to political organizing, including donor organizing, will be a clear difference between the Democratic and the Republican nominee not just on rhetoric or values, but on a concrete goal that can be delivered if a candidate is elected and that will make a real, practical difference. Such a successful victory can be a foundation for a genuine and new political movement to defend Christians (and other gay marriage dissenters), civil rights and equal participation in the public square.
For me that means, ideally, a clear and explicit promise to pass the First Amendment Defense Act (FADA) in the public square.
Let me note here a conundrum for a report card like this: four GOP candidates for office (Cruz, Rubio, Graham and Paul) are all cosponsors of the First Amendment Defense Act in the Senate. And yet none of them have advocated for FADA in the wake of Obergefell. Would these four candidates prioritize and pass it if elected president? We just do not know, because they have not told us. Given the history of backburnering so-called “social issues,” I have elected here to focus on what the candidates have promised about what they will do, rather than create a legislative scorecard that is only relevant to the senators in the race.
To all of this I added a fourth criteria:
- A willingness to fight for these ideas, within the limits of his or her access to media. My rationale? There is no way a president is going to be able to pass civil rights protection like FADA secretly. If he or she is unwilling to take the heat while running for office, he or she is going to be easily deterred by media pressure once in office. The lessons of history for Republicans must not be forgotten.
So with these criteria, here is how we grade the candidates’ response to the Supreme Court’s decision in Obergefell in the immediate aftermath. (Gov. Jim Gilmore was excluded as he had not announced his candidacy at that time).
Tier One: The A Team
Each member of the A Team refused to accept the Supreme Court has the final say on marriage, showed a willingness to speak to as broad an audience as he or she could gain, and offered at least one concrete step. Only one of the candidates get an A-plus because, at least in the intermediate aftermath (the first week), only one candidate pointed specifically to the First Amendment Defense Act (even though Graham, Rubio and Cruz are all co-sponsors).
Rick Santorum: Grade A+
Rick Santorum immediately tweeted and issued a statement: “Today, five unelected judges decided to redefine the foundational unit that binds together our society without public debate or input. Now it is the people’s opportunity to respond because the future of the institution of marriage is too important to not have a public debate. The Court is one of three co-equal branches of government and, just as they have in cases from Dred Scott to Plessy, the Court has an imperfect track record. The stakes are too high and the issue is too important to simply cede the will of the people to five unaccountable justices.” He did a lengthy no-holds-barred interview with National Review’s Byron York and also went on Fox News to discuss what Congress should do: “One thing is a Religious Freedom Act, a religious protection act, to protect people from what will be the consequence of this ruling, which will limit their religious liberty and freedom in this country. There’s no question it’s already happening with respect to people of faith trying to live their lives out, and disagreement with this court ruling in states around this absurd ruling by Justice Kennedy. So that’s number one.” He spoke at length and comfortably as he usually does on the foundational importance of marriage to the common good.
Less than a week after Obergefell, he was the featured speaker at the National Organization for Marriage’s gala, where he clearly committed to the First Amendment Defense Act (the only candidate to do so), earning him the “plus.” We are blessed to have other good candidates in this fight, but there is no better champion of marriage and religious liberty than Rick Santorum.
Mike Huckabee: Grade A
No one can doubt Huckabee’s profound and courageous commitment to the traditional (or Biblical) understanding of marriage, and he showed it in the hours and days after the Supreme Court’s narrow majority imposed gay marriage in all 50 states. From his statement:
This ruling is not about marriage equality, it’s about marriage redefinition. This irrational, unconstitutional rejection of the expressed will of the people in over 30 states will prove to be one of the court’s most disastrous decisions, and they have had many. The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny.
The Supreme Court can no more repeal the laws of nature and nature’s God on marriage than it can the law of gravity. Under our Constitution, the court cannot write a law, even though some cowardly politicians will wave the white flag and accept it without realizing that they are failing their sworn duty to reject abuses from the court. If accepted by Congress and this President, this decision will be a serious blow to religious liberty, which is the heart of the First Amendment.
Sitting down with George Stephanopoulos, Huckabee quickly turned the discussion to the threats to the livelihoods of gay marriage dissenters:
And, George, this case wasn’t so much about a matter of marriage equality, it was marriage redefinition. And I think people have to say, if you’re going to have a new celebration that we’re not going to discriminate, may I ask, are we going to now discriminate against people of conscience, people of faith who may disagree with this ruling. Are they going to be forced, either out of business, like the florist, the caterers, the photographers, like the CEO of Mozilla, who was run out of his job because of a personal contribution to support a proposition in California that actually won on the ballot.
Huckabee also went on “The Kelly File” and continues to seek out opportunities to express his powerful sense that judges do not have the right to redefine marriage.
Huckabee endorses a constitutional amendment defining marriage as one man and one woman, but, even better, by early July, he came up with three concrete steps he could take if elected to the White House, even without Congressional approval:
On Day One of my administration, I will use the power of the presidency to protect and defend people of all faiths in all fifty states.
First, I will sign religious liberty executive orders that support traditional marriage and protect businesses, churches, non-profits, schools and universities, hospitals, and other organizations from discrimination, intimidation, civil penalties, or criminal attacks for exercising their religious beliefs.
Huckabee is running a lean campaign without a lot of staff. Here’s hoping he looks at the First Amendment Defense Act in the near future.
Bobby Jindal: Grade A
Bobby Jindal’s statement made it clear this is not for him an issue to get over and accept, “The Supreme Court decision today conveniently and not surprisingly follows public opinion polls, and tramples on states’ rights that were once protected by the 10th Amendment of the Constitution. Marriage between a man and a woman was established by God, and no earthly court can alter that.” He reiterated his support for a Constitutional Amendment in a Politico op-ed and in a television interview with Chuck Todd, and he specifically stood with those losing their livelihoods because they do not want to cater to a same-sex wedding:
Here’s where the next fight’s going. I think the Left is now going to go after our First Amendment rights. I think it is wrong for the federal government to force Christian individuals, businesses, pastors, churches to participate in wedding ceremonies that violate our sincerely held religious beliefs. We have to stand up and fight for religious liberty. That’s where this fight is going. The Left wants to silence us. Hillary Clinton wants to silence us. We’re not going away.
Governor Jindal, please take a hard look at the First Amendment Defense Act, and endorse it.
Ted Cruz: Grade A-
Cruz gets major points for his willingness to fight in a highly public way against the Court’s unfounded creations of a Constitutional right to gay marriage and for proposing multiple steps he would support, from a Constitutional Amendment to a court-stripping bill. He appeared on Sean Hannity and NPR radio, sat down for an interview on Yahoo with Katie Couric, and penned a National Review essay. In each interview, he underscored the argument that submission to the 5-judge majority is not what democracy and respect for the rule of law means.
From Cruz’s Hannity radio interview:
CRUZ: Yesterday and today were both naked and shameless judicial activism. Neither decision—the decision yesterday rewriting Obamacare, for the second time—six justices joined the Obama administration; you now have Barack Obama, Kathleen Sebelius, and six justices responsible for forcing this failed disaster of a law on millions of Americans and simply rewriting the law in a way that is fundamentally contrary to their judicial oaths. Today, this radical decision purporting to strike down the marriage laws in every state, it has no connection to the United States Constitution; they are simply making it up. It is lawless, and in doing so they have undermined the fundamental legitimacy of the United States Supreme Court.
HANNITY: What recourse is available? The only thing I can think of… I’d go back to Levin’s book The Liberty Amendments, and that is, you know, convention of the states. I don’t know what recourse is available. Can you think of any?
CRUZ: There are a number of recourse we have. Let’s focus those on substance, then on the broader structural problem of a lawless court. On substance, on marriage, I’ve introduced a constitutional amendment that would protect the authority of state legislators to define marriage as the union between one man and one woman. We should pass that amendment. I’ve also introduced legislation stripping the federal courts of jurisdiction over legal assaults on marriage. The Constitution explicitly gives congress the power to strip jurisdiction as a check on a lawless judiciary. We should use that. Now the sad thing, Sean, is there aren’t a whole lot of Republicans in Congress willing to stand and fight on either one of those.
Unfortunately a court stripping bill would not provide any protection against the emerging threats to traditional believers in the public square. Nor would it reverse the gay marriage ruling, since it would forbid higher courts from reversing Obergefell or the lower court decision that preceded it. In his National Review article, Cruz proposed judicial retention elections as a potential check on the courts. But such a move would require a Constitutional amendment, which the president has relatively little power to pass.
CNN captured Cruz in Iowa responding to a voter’s question, and he called for an Article V convention to amend the Constitution. The Article V pathway to amend the Constitution is a state-based strategy that circumvents Congress and the White House entirely, making it unclear how electing Cruz would help.
While Ted Cruz was primarily trying to point to his deserved record of a willingness to fight that distinguishes him from many other Republican candidates, Cruz has not yet publicly pointed towards legislation he could pass that would protect our civil rights and allow us to continue to build and organize for our views in the public square. Hence the minus. Cruz is intensely competitive and we know he hates that minus. We respect his support for marriage and his courage and his co-sponsorship of FADA. We hope he begins to point to it on the campaign trail.
Cruz earns his place on the A team for marriage.
Tier Two: The Gentlemen’s Cs and Ds
Scott Walker: Grade C+
Scott Walker called the decision a “grave mistake,” and pointed out that he personally had voted for a marriage amendment “to defend our constitution from exactly this type of judicial activism.” He proposed “the only alternative left of the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage.” He spoke at length about religious liberty, but only as embedded in the existing Constitution and in the Wisconsin Constitution. His position on treating Christian florists, bakers, and photographers as if they were Jim Crow racist has never been made clear: “I call on the President and all governors to join me in reassuring millions of Americans that the government will not force them to participate in activities that violate their deeply held religious beliefs. No one wants to live in a country where the government forces people to act in opposition to their conscience. We will continue to fight for the freedom of all Americans.”
The White House reassuring millions of us? We don’t need emotional reassurance from President Obama; we need concrete action from the next GOP president.
Gov. Walker’s most recent rhetoric has not been particularly reassuring. In Red Oak, Iowa, Walker stated that although he supports a Constitutional amendment on marriage, he doesn’t think it will pass. “To me, I think the most appropriate and timely focus for the next president is to focus on defending religious liberties,” Walker said.
We agree. But it’s what he says next that is troubling. Instead of offering any concrete step he will take to defend gay marriage dissenters, Walker once again (as he did after Indiana) points with pride to what he says is good language in the Wisconsin Constitution: “very explicit language about protecting religious liberties,” along with some “anti-discriminatory language.”
Is Gov. Walker proposing new anti-discrimination legislation for gay people along with some kind of religious liberty protections modeled on the Wisconsin constitution? I don’t know, and neither do GOP primary voters. Given the seriousness of the emerging threats to religious liberty (as underscored by the Chief Justice), this level of vagueness from Scott Walker should not be acceptable to social conservatives.
Gov. Walker must strengthen this response by committing to FADA, or at least to some concrete protective proposal. Simply pointing to the virtues of the Wisconsin constitution, as if he were running for Wisconsin governor, clearly isn’t enough.
Carly Fiorina: Grade D+
I think I grade Carly on a curve because she is so good at sounding unafraid, even when she is backtracking. Carly, like Carson, wanted everyone to know she supported civil unions and equal benefits, and that she’s not a homophobe. But she also managed to express genuine sorrow and sympathy for traditional marriage believers that sounds sincere:
Well, I have always been supportive of civil unions—when I was—because I don’t believe the government should discriminate in the provision of benefits. When I was the chief executive at Hewlett-Packard, we provide benefits to same-sex couples. That is very different, very different from five Supreme Court justices saying to people, “we’re going to tell you what marriage is.” And of course, throughout the millennia and in every religion in the world, marriage has a very specific meaning. Marriage is an institution grounded in spirituality. It is a union between a man and a woman, and from that union comes life, and life is a gift from God. So, my own view is, I’m sorry the Supreme Court took up this case. I think it was best left to the states and the people of the country to continue the conversation that has been going on for some time now in churches, in synagogues, in living rooms and in town hall meetings. And now that this decision has come down, I think we need to focus all of our energies on ensuring that we protect the religious liberties and the freedom of conscience on those who profoundly disagree with this decision.
She takes a stance but lacks any kind of plan.
Jeb Bush: Grade D+
Jeb Bush tried to thread the Indiana needle, saying he is firmly committed both to religious liberty and also to not discriminating. Accepting and reinforcing the Left’s view that declining to participate in a same-sex wedding is discrimination is giving away the store before the fight has even begun, in our view. It’s a pity. I like Jeb Bush, but he doesn’t have the stomach for a fight, and unless he can get the Left to agree, he’s unlikely to do anything, by his own account:
Guided by my faith, I believe in traditional marriage. I believe the Supreme Court should have allowed the states to make this decision. I also believe that we should love our neighbor and respect others, including those making lifetime commitments. In a country as diverse as ours, good people who have opposing views should be able to live side by side. It is now crucial that as a country we protect religious freedom and the right of conscience and also not discriminate.
He endorsed no specific strategy to protect conscience rights, but told CBS News a Constitutional amendment is “not realistic” and went on to say, “we need to focus, just as I said, on trying to forge consensus so that we can move forward.” Which sounds an awful lot like giving the Left a veto on new religious liberty protections.
Marco Rubio: Grade D
Issuing only a pro forma statement, Rubio ran away, not towards, the media on this one: “While I disagree with this decision, we live in a republic and must abide by the law. As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.” He promised to “strive to protect the First Amendment rights of religious institutions and millions of Americans whose faiths hold a traditional view of marriage.” But he appears to have laid out no concrete plans for doing so:
I firmly believe the question of same sex marriage is a question of the definition of an institution, not the dignity of a human being. Every American has the right to pursue happiness as they see fit. Not every American has to agree on every issue, but all of us do have to share our country. A large number of Americans will continue to believe in traditional marriage, and a large number of Americans will be pleased with the Court’s decision today. In the years ahead, it is my hope that each side will respect the dignity of the other.
It is my hope too, but I am not betting my freedom on it.
Rand Paul: Grade D
Rand Paul’s main response was an op-ed in Time magazine, where he defended the right to contract, said the Constitution is silent on marriage, and pledged himself “ready to resist any intrusion of government into the religious sphere,” but he did not say how. And like Bush he wanted to endorse both the liberty of gay marriage dissenters and the “equal rights” of gay couples:
…The 14th Amendment does not command the government endorsement that is conveyed by the word “marriage.” State legislatures are entitled to express their preference for traditional marriage, so long as the equal rights of same-sex couples are protected.
When the first words out of a candidate’s mouth after the Supreme Court struck down the marriage laws of more than 30 states are, “While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract,” you have the opposite of a champion. He ended his op-ed with a suggestion government get out of the marriage business, but he did not say how to accomplish that either.
Given this response, it is hard to reasonably expect Rand Paul to lead the fight against government intrusion on gay marriage.
Rick Perry: Grade D-
Perry issued a pro forma statement, saying: “I am disappointed the Supreme Court today chose to change the centuries old definition of marriage as between one man and one woman. I’m a firm believer in traditional marriage, and I also believe the 10th Amendment leaves it to each state to decide this issue. I fundamentally disagree with the court rewriting the law and assaulting the 10th Amendment. Our founding fathers did not intend for the judicial branch to legislate from the bench, and as president, I would appoint strict Constitutional conservatives who will apply the law as written.”
And then he has dropped the subject. No fight in that Texan for the rights of gay marriage dissenters in this election cycle.
The Bottom Tier: The F-Troop
Ben Carson: Grade F
I am as surprised as you are by this grade and by how poorly Carson responded to this historic overturning of our marriage laws. He practically rushed to throw in the towel: “While I strongly disagree with the Supreme Court’s decision, their ruling is now the law of the land,” he said. He reiterated his commitment to civil unions and said we should fight for religious liberty. But apparently not very publicly and not with any specific suggestions on how to protect gay marriage dissenters.
Chris Christie: Grade F
Governor Christie began by saying he agreed with Chief Justice Roberts but quickly turned to the idea there’s nothing he plans to do about it: “That being said, those five lawyers get to impose it under our system and so our job is going to be to support the law of the land. And that under the Supreme Court’s ruling is now the law of the land, but I don’t agree with the way it’s been done. But I take an oath and the same way I’ve supported and enforced the law here in New Jersey since our Supreme Court made their 7-0 decision on same-sex marriage and I’ve supported and endorsed that law, I would have to do the same across the country. But I want to be clear, I don’t agree with the way it was done. But it’s been done and those of us who take an oath have a responsibility to abide by that oath.”
Christie later returned to that sacred oath meme, opposing conscience protections for marriage clerks, thundering: “You took the job and you took the oath. . .you have to do it.” (Yeah, the Supreme Court Justices also took an oath, buddy. Try standing up for the little guy?)
He made it worse when he started bragging about how he would appoint “Christie type judges.” Ouch! Christie’s judicial appointments in New Jersey were terrible. Either he didn’t care or he couldn’t discern. Or he traded away judges for something else he needed in N.J. politics. Any which way, not good for gay marriage dissenters.
I still remember with admiration when Chris Christie vetoed gay marriage in N.J., as he promised to do in his campaign, to the astonishment of the local media. But this time he’s not promising much; don’t expect more from Christie than his explicit promise which amounts to appointing “Christie-type judges.” Chris Christie: Pretty conservative for a New Jersey governor.
Lindsey Graham: Grade F
Senator Graham took the opportunity of the Court inventing a right to gay marriage to say the GOP should take a Constitutional amendment defining marriage out of its party platform. “It will hurt us in 2016 because it’s a process that’s not going to bear fruit,” he said on “Meet the Press.” His prescription: “Accept the Court’s ruling; fight for the religious liberties of every American.” Fight how? He doesn’t say.
Here, from the statement he composed and released, are his priorities:
However, the Supreme Court has ruled that state bans on gay marriage are unconstitutional, and I will respect the Court’s decision. Furthermore, given the quickly changing tide of public opinion on this issue, I do not believe that an attempt to amend the U.S. Constitution could possibly gain the support of three-fourths of the states or a supermajority in the U.S. Congress. Rather than pursuing a divisive effort that would be doomed to fail, I am committing myself to ensuring the protection of religious liberties of all Americans. No person of faith should ever be forced by the federal government to take action that goes against his or her conscience or the tenets of their religion. As president, I would staunchly defend religious liberty in this nation and would devote the necessary federal resources to the protection of all Americans from any effort to hinder the free and full exercise of their rights. While we have differences, it is time for us to move forward together respectfully and as one people.
Don’t expect Sen. Graham to do anything “divisive”’— like, for example, labeling the concerns of traditional believers “divisive.”
John Kasich: Grade F
The Supreme Court overturns the marriage laws of your state and many others by inventing a new right? That gets a big yawn from John Kasich: “I do believe in the traditional sense of marriage—that marriage is between a man and a woman. But I also respect the Supreme Court of the United States. The Supreme Court of the United States made the decision, and as I have said repeatedly we’ll honor what the Supreme Court does—it’s the law of the land.”
What about threats to gay marriage dissenters? Kasich doesn’t want you to panic: “Look, I think we all have to see how this develops. I believe fundamentally that religious institutions have got to be given protection. I have friends that are gay, I don’t have any of them say, ‘well you’re wrong’. I don’t hear that at all. Hopefully this is going to go smoothly. If not, and if problems arise, and if people feel as though they aren’t being respected, well then we’ll have to deal with it. But let’s not get carried away. Let’s just wait to see what happens here.”
Memo to John Kasich: when the Chief Justice of the Supreme Court says there’s a serious problem, maybe you should at least pretend to care?
Kasich’s response suggests he will do nothing to fight for the rights of traditional believers. And he talks down to us to boot.
George Pataki: Grade F
We looked hard but in vain for any statement at all from Gov. Pataki in the days and weeks after Obergefell. Gov. Pataki appears to have said literally nothing. However, on July 24, according to the Washington Blade, Gov. Pataki told a group of LGBT activists and donors: “I accept the ruling. I don’t think we should — Republicans or others — shouldn’t seek a constitutional amendment to overturn it. I happen to think that change is best made by the states through the legislative process, but the court has ruled, the decision is done and that is the law of the land.”
Donald Trump: Grade F
Donald Trump issued no statement, wrote no op-ed, and basically didn’t seem to care about the issue at all. During a CNN interview, Jake Tapper asked him about it. He said he’s for traditional marriage, and that he has a great wife. That’s about it.
Here is the Donald when he doesn’t want to talk about a controversial issue:
Jake Tapper: Let’s talk about same-sex marriage, you said, a few years ago, that you were evolving on that issue. Where are you?
Donald Trump: I’m for traditional marriage, it is changing rapidly.
Tapper: But, what do you say to a lesbian who’s married, or a gay man who’s married, who says ‘Donald Trump, what’s traditional about being married three times?’
Trump: Well, they have a very good point, but, you know, I’ve been a very hard working person, I’ve had, actually I have a great marriage. I have a great wife now. And my two wives were very good, and I don’t blame them, but I was so—I was working, maybe like you, 22 hours a day—
Tapper: I’m not asking you to explain your divorces, but—
Trump: No, I know, but I’m just saying, it was—I blame myself because my business was so powerful for me, I don’t know if that’s a good thing or a bad thing.
Tapper: But what do you say to a lesbian or a gay man who are married, and say—
Trump: I really don’t say anything, I mean, I’m just—Jake, I’m for traditional marriage.
Maggie Gallagher is a senior fellow at American Principles in Action.