Post-Partisan Evangelicals, Perception Versus Reality, and the Moral Primacy of the Abortion Debate

May 24, 2012 By David French 4 Comments

I was pleased to see that Jonathan Merritt responded to my “open letter” — especially since his new book inspired my post.  He was of course not the only one to respond, but I’m going to try to focus on Jonathan’s response.  Jonathan emphatically disagrees with my embrace of partisanship (of course he would; I hardly expected my letter to persuade him to repudiate the book he just wrote), and in so doing repeats many of his core points.  Here they are:

  • Culture warriors overestimate the power of government to change the hearts and minds of the people it governs
  • Culture warriors operate on a faulty and unbiblical definition of power
  • Culture warriors have adopted a tone that is utterly foreign to the one we find modeled by Jesus himself
  • Culture warriors allowed the Christian church to be reduced to a voting bloc and the handmaiden of a political party
  • Christians who fight in the culture wars have produced an anemic, partisan church that is driving away non-believers in record numbers

With these bullets (and to be fair to Jonathan, bullet points hardly contain the depth and nuance of a book, but he chose them so I’ll address them) I think Jonathan accurately describes a number of myths about the culture wars — myths successfully created and perpetuated by our secular opposition.

First, culture warriors do not overestimate the power of government to change hearts and minds.  We do recognize, however, that the law and government are well-equipped to protect human life and that is in fact one of the core, biblically-ordained roles of government.  Sadly, however, our government enforces with the power of its sword the “right” of a woman to pay a doctor to kill her child.  In an ideal world every child is a wanted child (and we should never cease to pray and work for such a world), but even unwanted children have a right to live and a right to the protection of governing authorities.  Every “culture warrior” I know understands that the ultimate answer is the Gospel.  Every culture warrior I know also understands that the government can and should do more to protect innocent life.

Jonathan’s second point is closely related to his first, but I find that when you look at the actual policy arguments put forward by culture warriors (and we’re both using the term broadly, I know), they’re quite limited in scope.  End legalized abortion.  Maintain current definitions of marriage.  Maintain traditional free speech standards.  Maintain the traditional place of religion in the public square.  Each one of those positions is a specific reaction to specific legal changes initiated by an aggressive, opposing cultural force.  You will note that (mainstream) culture warriors do not advocate any governmental position that mandates belief or violates the rights of conscience of any individual.  We are not asking too much of power — only that it not be used for improper ends.

Third, which of Jesus’s many tones is Jonathan referring to?  The tone he took when driving money-changers out of the temple?  The tone he took when calling the Pharisees “white-washed tombs”?  The tone he took with the woman at the well?  The tone he took when he healed the sick?  The tone he took while dying on the cross?  Jesus’s tone varied greatly depending on the circumstances and the message — and so does the tone of the “culture warriors” I know and work alongside.  To be clear (and as I said in my post), we make mistakes all the time, but the culture warriors I know are diligently and prayerfully following Christ’s call on their lives in both message and manner.

Jonathan next gets directly at a point I make in my letter.  Just because that is the image of the church in the eyes of many does not mean it is the reality.  The reality is the church is by every objective measure focused on helping the poor more than fighting the culture war, but that fact is largely unknown because we don’t control our image in popular culture.  The other side would have us change not by different messaging but through an abandonment of the field.  Al Mohler wrote on Monday: “But when my phone rings with a call from a reporter these days, the question I am asked is never adultery or pornography.  It is about homosexuality.”  When it comes to homosexuality, we are addressing the obsessions of others.  (Don’t believe me?  Here’s a test: track your pastor’s next 25 sermons.  How many deal with homosexuality?)  When it comes to abortion, the blood of the innocents cries out for justice.

Fifth, when Jonathan talks about an “anemic, partisan church,” which church is he referring to?  Take a look at the chart below:

Putting aside the Muslim faith (where immigration is playing a very large part in growth), the denominations that are growing are hardly known for their timidity in the culture wars.  The denominations that are shrinking are those that have largely abandoned the field on, say, abortion and gay marriage (they are partisan in other areas but not known as “culture warriors”).  Even more striking, these denominations have shrunk in size even as the population has grown.  So, yes, believers are leaving certain churches in droves — just not the “culture war” churches.

The greatest threat to the church is not fighting abortion or voting in droves for Republicans.  The greatest threat to the church is the path taken by the Mainline — abandoning orthodoxy.  Of course we can do a better job in presenting our message to the culture.  We’re fallen and flawed people, after all.  But let’s be clear, to be accepted as “post-partisan” we have to give up any effective advocacy against legal abortion.  The instant you are effective is the instant you are no longer post-partisan.

You’ll note (as my critics certainly have) that I place abortion at the center of my argument.  My argument against post-partisanship is not free-standing.  In other words, it’s driven by the context of our times, and much like during the slavery debate prior to the Civil War, our relevant political parties have chosen sides on the issue of life.  They have chosen sides in a way that is different in kind from their marginal differences on war and peace (Obama continued every single existing Bush war policy and tactic), entitlements (where the primary argument is over rate of growth, not their existence), and tax rates (where again the difference is over small changes in percentages, not existence).  Even in the arena of gay marriage there is more in-party diversity than exists on the abortion question.

The intentional, legally-protected taking of human life on an industrial scale is a moral monstrosity condemned by every single strand of Christian orthodoxy.  Every one.  There is no coherent comparison between abortion and our wars in Iraq and Afghanistan (Are unborn children trying to kill their mothers?), where our nation faced — and still faces throughout the Middle East — governments and individuals bent on killing as many Americans as they can.  While Christians can certainly debate the wisdom of any given conflict or military tactic, to compare our response to 9/11 and the 33 year Islamic Jihad against America (beginning with the hostage crisis in 1979) to the legally-protected intentional killing of millions of innocent children is, quite simply, depraved.

Jonathan claims that my tactics and the tactics of those who fight with us have “failed us so miserably.”  Yet the last five years have seen a record number of successful legislative efforts to regulate and restrict abortion and now the number of Americans who call themselves “pro-choice” is at a record low.  And that progress has occurred in the face of decades of relentless demonization of pro-life advocates, not just at the hands of the mainstream media and pop culture, but also — sadly — at the hands of Christians who are ashamed of the movement’s steadfast efforts.

When the “culture warriors” of 1860 looked to cast their vote, they had but one real option.  But now, with the benefit of hindsight, Christians are rightly proud of the stand that they took, the witness they presented to our nation, and the votes they cast.  Sure, not all the Republicans of 1860 had truly biblical views of race, slavery, and individual liberty, and the party was deeply flawed on a number of levels, but their view of human life was fundamentally different in kind than the competing views of the Southern Democratic or Constitutional Union parties.  Simply put, until both political parties embrace not just the repeal of Roe v. Wade but the legal protection of innocent life — from conception until natural death — I will be a partisan of the only party that has made the correct choice.

Catching up on the debate:

My original post: “An Open Letter to Young, Post-Partisan Evangelicals”

Jonathan’s response:  ”Faulty Logic and False Choices: A Response to David French”

Jonathan’s book:  A Faith of Our Own: Following Jesus Beyond the Culture Wars

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An Open Letter to Young, “Post-Partisan” Evangelicals

May 23, 2012 By David French 103 Comments

It’s that time again — the time when the younger evangelical generation surveys our damaged nation, observes the terrible reputation of leading evangelical “culture warriors” in the pop culture and with their peers, and says, “You guys blew it.  It’s time for a new approach, for a post-partisan approach.  We’re not in anyone’s political pocket.  We’re not focused on politics at all.”  You look at books like Jonathan Merritt’s A Faith of Our Own: Following Jesus Beyond the Culture Wars and think, “Finally someone is speaking to us.  We’re about Jesus — not about Republicans, not Democrats, just Jesus.”  Young, post-partisan evangelicals, this letter is for you.

Dear fed-up idealists,

I used to be you.  I know that’s hard to believe.  After all, I’m pretty darn partisan.  I’m a religious liberties lawyer, a pro-life activist, the founder of Evangelicals for Mitt, and the most recent winner of the American Conservative Union’s Ronald Reagan Award.  I serve my country in uniform in the Army Reserves and am a veteran of the Iraq War.  In other words, for a lot of you out there, I’m less role model than cautionary tale.  I’m the guy you’re trying not to be — the guy you think is destroying our Christian witness.  Heck, I’m the guy that even I used to hate.

How did this happen?  Why did this happen?  The short answer is that it happened because life happened — real life.  So let’s take a trip back through time.

–1991–

Step 1: Despising my elders.  We called ourselves “Solomon’s Colonnade” after the temple area where Jesus delivered one of his many stinging rebukes to the religious leaders of the day.  There were only a few of us, friends from college, but we were determined to upend the silly, partisan hypocrisy of the religious right.  I blame Bono, really.  I attended a U2 concert during the 1987 “Joshua Tree” tour, and was enthralled as Bono (a real rock star!) not spoke openly about his love for Jesus, he wound up his rousing mini-sermon with a passionate condemnation of the televangelists who were then dominating public religious life.  His words were both shocking and exhilarating: “Here’s my message to the televangelists: get the f**k off my TV screen!”

Well, that generation of televangelists did eventually “get the f**k off” the TV screen — doomed by their own insatiable appetites — but that wasn’t enough for me.  Simply put, I was convinced we hadn’t been doing church right, and my friends in Solomon’s Colonnade were going to do what we could to reboot the whole thing.  We spent hours talking late into the night, discussing everything from ideal church governance to the right way to engage politics and the culture.  We didn’t reach any consensus other than the consensus that we could do it better — whatever “it” was.  And we had to do better.

I graduated from college, Solomon’s Colonnade faded into oblivion, but my goals didn’t change.  Oh, I was philosophically conservative — a biblical literalist, an admirer of Edmund Burke, and very deeply pro-life — but I was convinced that the core, life-affirming values of my faith were being wasted and squandered by partisans and charlatans.  Shortly after law school, while reflecting on the latest media-reported “outrage” from Jerry Falwell or Pat Robertson or James Dobson, I remember emailing my friends something like this: “There has to be a revolution in American Christianity.  The old guard has to go, and we have to put Jesus at the center of all we do.  I don’t have to lead the revolution, but at least let me drive the tank.”  How those words would come to haunt my conscience . . .

–2004–

Step 2: Encountering life.  I was living my dream.  Sure, I was still pro-life (I co-founded Harvard Law School’s only pro-life student group), but you couldn’t categorize me!  I had also written a then widely-read op-ed arguing that gay marriage was “inevitable” and that the state had forfeited any legal grounds for denying gay couples the “right” to marry.  No labels for me!.  Shortly after publishing that op-ed, I found myself not only leading a nonpartisan free speech organization but also being profiled in a progressive Christian magazine (sadly defunct or I’d link the article) as an example of nonpartisan Christian leadership.  My friends in Solomon’s Colonnade would have been so proud.

But I soon realized that my nonpartisanship had a steep price.  I could be pro-life, but not too pro-life.  You see, if you’re too pro-life; if you talk about too much, then you can’t be post-partisan.  One political party is completely dedicated to legal protection of abortion on demand.  The other political party is completely dedicated to repealing Roe v. Wade.  If you talk too much about abortion, others will define you, and if you’re defined how can you be independent?

“No problem,” my hip inner voice said.  Pro-life is really whole life.  Anti-poverty programs, environmental advocacy — that’s all ‘pro-life’ in the broad sense, right?  Can’t I be pro-life and maintain my independence?”  But my rational inner voice quickly rebelled.  If I’m “whole life” without talking about unborn children then I’m functionally pro-abortion, but if I’m “whole life” and bring unborn children into that conversation in any meaningful way, then I’m right back where I started.  Besides, the effect on life of driving a Prius over a pickup truck can’t be measured with a (metaphorical) electron microscope.  But if an abortion clinic shuts down or a young mom is persuaded not to abort, a real live human being is born — a person of incalculable worth.  Yes, I want them to grow and flourish in a just society, and yes I want them to have economic opportunity.  But it’s tough to enjoy justice and opportunity when you’re dead.

So I was pro-life.  Firmly.  Actively.

I clung, however, to my marriage position — with even greater ferocity.  But my rational voice rebelled once again against my hip inner voice.  Didn’t no-fault divorce fly directly in the face of biblical marriage?  Weren’t legal regimes that were focused entirely around adult self-actualization having measurable and devastating effects on our culture?  Why then would we continue down the path of marriage as a legally recognized means of adult self-actualization rather than marriage as a legally-protected institution of cultural preservation?

Then, as a lawyer, I saw the catastrophic effects that normalization of same-sex relationships was having on religious liberty.  And I realized I was wrong.

As I decisively entered the “culture war” I discovered something shocking: there aren’t that many of us.  (What’s that?  Are you telling me that Christians aren’t obsessed with gays and abortion?  That’s what all the polls say!)  As I traveled around the country and spoke at churches, Tea Party rallies, and conferences, I realized that the number of Christians who truly fight the culture war is quite small.  How small?  In 2011, I researched the budgets of the leading culture war organizations and compared them to the leading Christian anti-poverty organizations.  Here’s what I found:

How do those numbers stack up with leading Christian anti-poverty charities? Let’s look at just three: World Vision, Compassion International, and Samaritan’s Purse. Their total annual gross receipts (again, according to most recently available Form 990s) exceed $2.1 billion. The smallest of the three organizations (Samaritan’s Purse) has larger gross receipts than every major “pro-family” culture war organization in the United States combined. World Vision, the largest, not only takes in more than $1 billion per year, it also has more than 1,400 employees and 43,000 volunteers.

In other words, Christians are overwhelmingly focused with their money and their time on the poor, not on culture war issues.  Then why are Christians portrayed differently?  Because the media is obsessed with the sexual revolution and demonizes dissent.  If news outlets focus on Christians only when engaged on culture war issues and ignores the much more extensive work we do for the poor in Africa, in Asia, and at home, then it’s no wonder the wider world sees us as politically-obsessed.  Anyone who believes that Christians are in control of their own public image does not understand how public perceptions are created in this country.  No one is in total control of their own image and reputation.  Not even the President — and shame on me for not realizing that in my days of naive rage.

–2007–

Step 3: Becoming my elders:  I’ll never forget the day I met James Dobson.  I was preparing to appear on a Focus on the Family broadcast highlighting a number of my cases on behalf of Christian students.  In a very real way that broadcast would cement my transition (not that anyone cared about that but me) from “post-partisan” to firmly, completely “religious right.”  I was joining Focus and many others in their long fight against cultural and legal trends that result in millions of aborted babies, millions of broken families, persistent poverty, and increasing inequality.  On that day, I was struck by Dr. Dobson’s humility and the humility of his staff.  There was a palpable feeling that they were answering God’s call on their lives — serving their role in the Body of Christ, a role certainly no more important than that played by others but vital nonetheless.

Of course they’re not perfect.  Of course I’m not perfect.  Of course I’m in fact deeply flawed.  But so are relief workers at World Vision.  So is the pastor you may admire so much.  So were each one of Jesus’s disciples and apostles.  As we fight the culture war, we’re going to make mistakes, we’re not going to agree with each other, and sometimes I still get deeply frustrated at my own side.  But I no longer believe the lie that there is a path for Christians through this culture that everyone will love — or even most people will love.  I no longer believe the lie that American Christians are “too political” and if we only spoke less about abortion we’d be more respected (the mainline denominations have taken that path for two generations, and they continue to lose members and cultural influence).

So, “post-partisan” Christians, please ponder this: First, as the price for your new path, are you willing to forego any effective voice at all for unborn children?  Are you willing to keep silent when the secular world demands your silence?  After all, that is the true price of non-partisanship — silence.  Second, if you believe that a more perfect imitation of Christ (more perfect than the elders you scorn) will lead to more love and regard for the Church, consider this: No one was more like Christ than Christ, and he wound up on a cross with only the tiniest handful of followers by his side.

Follow Jesus, yes, but don’t think for a moment that will improve your image, and don’t be surprised if He takes you down much the same path He took the generation before you.

Read more on the Faith and Family Channel

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No One Can Unite Evangelicals and Mormons Quite Like Barack Obama

May 14, 2012 By David French 33 Comments

I must confess that I awoke this Monday morning feeling a bit useless — feeling very small and insignificant in fact.  Not that it’s a bad thing.  After all, in this graduation season if I could give one piece of advice to young and ambitious graduates it would be this: “Learn to get over yourself — and quickly.”  But still, it’s not necessarily fun to feel insignificant.

Why did I feel like blowing off work, skipping even my shower, and just heading straight to my favorite video game to tune out the world?  Because last week Barack Obama accomplished more in about two minutes and thirteen seconds than I was able to accomplish in more than six years of continual effort.  Barack Obama united evangelicals and Mormons around Mitt Romney.

In late 2005, I realized that Mitt Romney was not just an outstanding governor of Massachusetts and a man of character and integrity (that much was obvious), but he should also be President of the United States.  Starting in early 2006, Nancy and I did our best to try to make that happen — organizing straw polls, launching a website, giving money, writing a book, and generally talking to anyone who’d listen.  Our message was simple: Mitt Romney and evangelicals certainly have theological differences, but they share core values, and Mitt can be counted on to defend those values.

Over time, our blog morphed just a bit and became a home for thoughtful Mormon-evangelical dialogue, and I treasure those conversations (in fact, that may ultimately prove to have been the highest and best purpose for our efforts).  At the same time, it sometimes felt like we were making zero headway with our fellow evangelicals.  In 2008, they flocked to a less-conservative Mike Huckabee rather than support Mitt.  And in 2012, southern evangelicals flocked to the less-conservative Rick Santorum.  Heck, at one point it even seemed like Newt Gingrich would sweep the evangelical vote.

But Mitt hung on, kept fighting, and won enough evangelicals to win the nomination.  But what about the general election?  After months of opponents hammering Mitt for being “no different” from Obama, would evangelicals see reality?  And if so, would they see in time to make a difference?

Now we know the answer.  It turns out that no one can draw distinctions better than President Obama.  We already knew that he was radically pro-abortion (after all, he refused to support the born-alive infant protection act), that he believes sexual liberty trumps religious liberty (see, for example, his HHS contraceptive mandates), and that some of his key supporters were contemptuous of stay-at-home moms, but last week he went all the way.  Last week he adopted the secular left social platform in its entirety when he endorsed gay marriage.  On life, religious liberty, and marriage, he is a firm “no.”  Mitt Romney is a firm “yes.”

My work is done.  My mission is accomplished.  But I didn’t accomplish it.  Thank you, President Obama, for doing my job far, far better than I ever could.  Now, if you’ll excuse me, I’ve got some gaming to do.

Read more on the Faith and Family Channel

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Deroy Murdock Misleads About Romney’s Record on Gay Marriage

December 30, 2011 By Nancy French
No American governor has faced more critical cultural issues than Mitt Romney, Massachusetts’ chief executive from 2003 to 2007. In the midst of Governor Romney’s efforts to rescue his state from a fiscal crisis and create lasting and innovative health care solutions, activist judges and a far-left legislature forced issues of same-sex “marriage,” abortion, religious liberty, stem cell research, and gay rights into the forefront. Each time he was challenged, the Governor not only made the conservative choice, but also did so with an optimistic, unifying message. In doing so, he became a national leader on these vital cultural issues without squandering his ability to govern the Commonwealth.

In spite of this impressive conservative record, Deroy Murdock claims in National Review today that Gov. Romney actually encouraged gay marriage as governor. The truth, however, is that Gov. Romney been one of the nation’s foremost advocates for traditional marriage by launching a multi-year (and multi-state) campaign to preserve traditional marriage after Massachusetts’ Supreme Judicial Court’s decision to legalize same-sex marriage.

My husband, David French has set the record straight several times, because it comes up quite frequently over the years as half-truths keep floating around the internet.  (David, I should say, is a co-founder of Evangelicals for Mitt, an independent website dedicated to spreading awareness about Governor Mitt Romney among Christian conservatives. He also holds a J.D. from Harvard Law School and is a leading constitutional attorney. We live outside Nashville and worship at Zion Presbyterian Church, a congregation of the Presbyterian Church in America.)  David claims that Gov. Romney been one of the nation’s foremost advocates for traditional marriage:

From the moment the activist judges in the Massachusetts Supreme Judicial Court handed down their breathtakingly arrogant decision in Goodridge v. Department of Public Health, the Governor took strong and consistent actions to defend marriage. He also took decisive action to make sure his state would not grant marriage licenses to out- of-state couples, thereby guaranteeing that Massachusetts would not become the “Las Vegas of gay marriage” (as he called it) and trigger a constitutional crisis as couples returned to their home states with Massachusetts licenses. He also initiated and led an effort to amend the Massachusetts constitution by referendum and has gone so far as to file suit against the Commonwealth’s own legislature after it took action to prevent the people of Massachusetts from voting on that amendment—a suit that resulted in the legislature complying with its constitutional responsibilities and sending the marriage amendment on to the next stage of the ratification process.

Critically, he has become a leading national advocate for marriage, with his optimistic and uplifting message dominating the public debate. Rather than casting the debate as one over adult rights, the Governor has made the best possible case for marriage, noting what we all should know but too often forget (at great cultural cost): Marriage does not exist for the convenience and enjoyment of adults, but as the best possible way of raising and nurturing children. The credible defenders of marriage in Massachusetts all agree, and through their own statement they have recently and emphatically made their feelings clear: Mitt Romney has been an invaluable supporter and advocate.

Yet despite this record, people like Deroy Murdock claim that Mitt Romney actually enabled gay marriage by not defying the Supreme Judicial Court of Massachusetts—in other words, by not breaking the law.

This is simply an incorrect reading of the decision. Here is what the Supreme Judicial Court actually said: “We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others.” In other words, the court itself changed the definition of marriage. The reference to legislative action in the opinion merely gave the legislature a chance to amend the law to state what the court already said it meant. This was not advising the legislature; it was changing the law. Any governor who defied this decision risked contempt of court. Rather than becoming what the media would undoubtedly call the “George Wallace of gay marriage” by standing in the courthouse door and barring couples from receiving marriage licenses, the Governor chose legal means to resist the court’s decision.

And his decision was correct. It is now clear that the Goodridge decision represented not the beginning of the end of traditional marriage but what may well be the high-water mark of the same-sex marriage movement. Since that decision, homosexual marriage activists have been on the defensive virtually everywhere, losing referenda and losing court decisions. Had Governor Romney not offered a principled and effective defense of marriage, the outcome may very well have been quite different.

The Governor believes all people should be treated equally in the eyes of the law, but that no additional legal protections for sexual orientation should be added. Since his race against Ted Kennedy in 1994, sexual orientation nondiscrimination laws have become commonplace across the country, and it is easy to see and understand their effects. Since 1994, these laws have been used as pretexts for ejecting Christian student groups from college campuses, for closing religious-based adoptive services, for silencing people of faith as they seek to debate issues of sexual morality, and for transforming marriage laws (see the New Jersey Supreme Court’s recent decision).  In 2006, he strongly defended the right of Catholic Charities to refuse to place adoptive children in homes with homosexual couples. In taking this stand, he opposed virtually the entire Massachusetts political establishment, but he was defending the fundamental freedom of people of faith to live out their values. Once again, Governor Romney made the right choice.

But if you don’t believe David, obviously a Romney supporter, listen to the testimony of someone who was there in the trenches as all of this played out. Maggie Gallagher quit her job in 2003, when she learned the Massachusetts courts were likely to make gay marriage a reality.  Then she founded the National Organization for Marriage and jumped with both feet into the quagmire of the gay marriage issue in Massachusetts.  In other words, she was there as the sausage was being made, and she went on to become one of America’s foremost defenders of traditional marriage.  She says it’s “grotesquely unfair” to paint Romney as a supporter of the institution of gay marriage.  Romney “didn’t just oppose court-ordered same-sex marriage with words, he fought hard, including behind the scenes,” she says.  ”On gay marriage, he’s been a rock.”  (For more information, read the Real ClearPolitics article called, “Mitt Romney Never Flip Flopped on Gay Marriage.”)

For the first time in many years, conservatives have a presidential candidate who not only shares their core political and moral values but can also communicate those values in a persuasive, compelling, and—yes—unifying way. We should not permit legal distortions, leftist-style scare tactics, and identity politics to obscure the truth about Mitt Romney—a man of principle who is and will be the best conservative standard-bearer in 2012.

 

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Did Gov. Romney Choose Gay Marriage? Santorum Misconstrues Romney’s Record

December 15, 2011 By Nancy French

I’m watching the debate, during which Rick Santorum really misconstrued Gov. Romney’s record on gay rights.  Here’s what David wrote about this very argument in January of 2007 here:

Did Mitt Romney choose gay marriage for Massachusetts? That’s the thrust of a bizarre and amateurish legal argument that is circulating through the internet and conservative media. A group calling itself “MassResistance” has been peddling for many months the argument that the Massachusetts Supreme Court did not actually mandate same-sex marriage in Massachusetts but instead merely requested that the legislature change the laws to permit same-sex marriage. Since the law was not changed (and since the Court didn’t have the authority to order the legislature to write new laws)–so the argument goes–Governor Romney therefore never had to recognize same-sex marriage and was in fact the “father” of same-sex marriage when he permitted state and local officials to perform and recognize such marriages. For the latest example of this specious argument, see the quotes from MassResistance member John Haskins in this story.

If such silly legal arguments didn’t cause so much harm, I would read them and laugh. Instead, some serious people seem to be taking these arguments seriously, so let me take a moment for a little bit of constitutional law 101. As with most bad arguments, MassResistance starts with a grain of truth: Judges have very little authority to order legislators to do anything, and depending on the state constitution may have no power at all to issue orders to the legislature. The proper, constitutional, role of the judiciary is to interpret the law, not make new law.

MassResistance argues that the Massachusetts Supreme Court overstepped its bounds and ordered the legislature to change state laws to permit same-sex marriage. Because the laws have not yet been changed (and because the court can’t issue such an order in the first place), same-sex marriage is not yet legal in Massachusetts, and Governor Romney’s decision to recognize same-sex marriages since the court’s decision was entirely optional and discretionary.

Sounds compelling, right? Sounds almost scholarly, doesn’t it? Well, there’s a problem. Even if you accept every premise of MassResistance’s argument regarding the proper role of the courts and the legislature, their argument falls apart based on the language of the same-sex marriage case itself.

You can read the entire opinionat the Massachusetts court website, but for those who lack the time–or stomach–to read the whole thing, please pay attention to this paragraph:

We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others. This reformulation redresses the plaintiffs’ constitutional injury and furthers the aim of marriage to promote stable, exclusive relationships. It advances the two legitimate State interests the department has identified: providing a stable setting for child rearing and conserving State resources. It leaves intact the Legislature’s broad discretion to regulate marriage.

What does this mean? It means that the court interpreted (that’s another word for “construed”) Massachusetts law to mean that two people of the same sex could marry–and that any interpretation contrary to the court’s would violate the rights of homosexuals. In other words, the court did not order the legislature to do anything. Instead, it did what the constitution allows it to do–it interpreted the law. It did so in an improper, activist way that abandoned the obvious original intent of the Massachusetts constitution and the Massachusetts marriage laws, but it interpreted the law nonetheless.

Now, take a look at the next paragraph:

In their complaint the plaintiffs request only a declaration that their exclusion and the exclusion of other qualified same-sex couples from access to civil marriage violates Massachusetts law. We declare that barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution. We vacate the summary judgment for the department. We remand this case to the Superior Court for entry of judgment consistent with this opinion. Entry of judgment shall be stayed for 180 days to permit the Legislature to take such action as it may deem appropriate in light of this opinion.

Read it again. And again. Do you see any order directed against the legislature? No? Well, that’s for a good reason. The court did not order the legislature to do anything–it merely stayed its judgement for 180 days for the legislature to take action that it deemed “appropriate.” However, since the marriage laws had already been interpreted (construed) to include same-sex marriage, the legislature did not have to take any action at all for same-sex marriage to become legal. It was already legal because of the court’s decision.

Frankly, it is sad that so many could be misled by something so simple–and simply wrong. When the Governor confronted the Massachusetts Supreme Court, he had two choices: (1) He could fight the decision using legal means; or (2) he could risk contempt citations and impeachment in an ineffectual, grandstanding attempt to block same-sex marriages. Rather than becoming the what the media would undoubtedly call the “George Wallace of gay marriage” and hand homosexual activists a propaganda victory to go along with their court victory, Governor Romney fought using the law and using his enormous gifts of persuasion. As a result, the same-sex marriage movement has lost public momentum, has lost court cases, and has lost at the ballot box. And we have Governor Romney and his principled, courageous, and compassionate defense of traditional marriage to thank for much of that success.

Mitt Romney did not “choose” gay marriage. At a critical moment in our nation’s history, Mitt Romney did make a choice, and he chose to defend marriage in a way that can and should make all conservatives proud.

P.S. If you doubt David’s qualifications to read a court case, please read his bio.

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