A MAN WHO lived with more than one woman was anathema in the 19th century; the media called polygamy an "act of licentiousness" that deserved to be categorically denounced, its adherents disenfranchised. In 1885, the U.S. Supreme Court upheld a federal law making plural marriage a felony, declaring that "the union for life of one man and one woman in the holy estate of matrimony [is] the sure foundation of all that is stable and noble in our civilization." A New York Times editorial celebrated that result, observing cheekily that "we had not supposed there had ever been any serious question."
Today, it's the old-timey view that marriage is between one man and one woman only--and that sex should be reserved to that union--that raises the Grey Lady's ire. When Californians sought to ban gay marriage in 2008, the editors of the Times called the initiative a "mean-spirited" effort "to enshrine bigotry in the state's Constitution."
Even assuming you think the paper was right the second time around, the reversal is striking. But while the norms have clearly changed, the desire to punish anyone who refuses to comply with those norms appears to be forever.
As the nation goes to war over birth control mandates and gay wedding cakes, many religious supporters of traditional marriage and sexual mores understandably feel their rights are being trampled. But so did the Mormons a century ago. To justify the anti-polygamy laws forbidding that group to live out its faith, Christian traditionalists stretched the First Amendment to precarious lengths. Now, the arguments they created and employed are being turned against them.
"WE CAN'T PROMOTE a marriage that God says isn't really marriage," the blog post would have read. "Even if our beliefs are a bit different or unpopular, we have to stick to them."
But those words, penned by Joanna Duka and Breanna Koski, were never published to their website. The authors feared the government of Phoenix might come after them if they were.
The young women, aged 23 and 24 respectively, are the owners of Brush & Nib Studio, an Arizona-based custom artwork and calligraphy shop. Shortly after getting their new business off the ground in 2015, they realized that a city ordinance passed two years earlier opened them up to enormous fines and even jail time as a result of their beliefs. The law forbids certain companies not just from discriminating against gays and lesbians but also from saying anything that so much as implies a customer would be unwelcome because of his or her sexual orientation.
Duka and Koski don't want to be forced to create wedding invitations and other artwork that celebrate same-sex marriage, so they're suing to overturn the Phoenix regulation as a violation of their First Amendment rights. Their prospects seem grim, however: In September of last year, the Maricopa County Superior Court denied their request for a temporary injunction to stop the law from being enforced while the challenge proceeds. "There is nothing about custom wedding invitations made for same-sex couples that is expressive," the decision, incredibly, reads.
That ruling is just one in a litany of recent instances in which small business owners have faced serious legal consequences for not wanting to be involved in commemorating same-sex unions. In Colorado, the owner of Masterpiece Cakeshop was hauled before the state's Civil Rights Commission. In Oregon, the proprietors of Sweet Cakes by Melissa were fined an eye-popping $135,000 and had to shutter their storefront. In New Mexico, the state Supreme Court told photographer Elaine Huguenin that she and her husband would be "compelled by law to compromise the very religious beliefs that inspire their lives." In upstate New York, a couple was forced to stop renting out their farm for wedding ceremonies unless they agreed to let gay couples marry there as well.
In theory, the Constitution is supposed to prevent things like this. The First Amendment says that the government "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In each of the above cases, though, the government got around that limitation by arguing that individuals have the right to believe as they like on their own time, but when they venture out into the marketplace, they forfeit the privilege of acting in accordance with the dictates of their faith.
The same supposed distinction between private opinions and public behaviors also features prominently in debates over the Obama administration's contraception mandate.
That rule, which was handed down by the federal Department of Health and Human Services (HHS) in 2012 as part of the Affordable Care Act, said that free birth control coverage had to be included in all employee health insurance packages. But some religiously affiliated employers, and in particular Roman Catholic ones, believe that facilitating the use of contraception makes one complicit in sin.
The agency exempted houses of worship from the rule, which let Catholic churches off the hook. But that did nothing for Catholic schools, hospitals, nursing homes, adoption agencies, and other charities. Eventually, the administration offered an "accommodation" in which the groups' insurers, rather than the groups themselves, would technically be responsible for paying for the coverage. Not surprisingly, this accounting sleight of hand did not allay the charities' concerns.
In Zubik v. Burwell, a coalition of faith-based nonprofits asked the Supreme Court to determine whether the mandate, as applied to such organizations, violated their religious freedom. Among the petitioners are the Little Sisters of the Poor, an order of Catholic nuns who care for the indigent elderly and have become the public face of this dispute.
Despite the nuns' sympathetic character, the political left remains strongly opposed to allowing them and their coreligionists to opt out of the requirement. "What these people are after isn't religious freedom," wrote Barry W. Lynn, executive director of Americans United for Separation of Church and State, in a blog post that represents the general tenor of progressive rhetoric on the matter. "It's the right to use theology to control the private behavior of others, to impose their religion on the unwilling and to employ narrow dogma as an instrument of discrimination."
Discrimination is a term that comes up frequently in these debates, since "the very nature of religion is 'discriminatory,'" says U.S. Civil Rights Commissioner Peter Kirsanow. "Now, it's not invidious discrimination. But Catholics are different from Jews. And Jews are different from Muslims. And Muslims are different from Protestants, and on and on."
Kirsanow argues that those differences ought to be respected. "One of my main concerns is the elevation of principles of nondiscrimination over principles of liberty," he says. "We should be more concerned about government coercion than we are about individual coercion. Both may be bad, but one is scores of orders of magnitude more serious than the other. And one was the principal reason we fought a revolution."
Yet in case after case, the desire to prevent business owners from taking steps that inconvenience someone else--either...