The ugly war on gay rights: When “religious freedom” becomes “freedom from laws”

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http://www.salon.com/2015/07/03/the_ugly_war_on_gay_rights_when_religious_freedom_becomes_freedom_from_laws/

FRIDAY, JUL 3, 2015 05:59 AM EDT

With gay marriage legal, Ted Cruz wants to undermine the Constitution in the name of "religious liberty"

SIMON MALOY


Bobby Jindal, Mike Huckabee (Credit: AP/Alonzo Adams/Reuters/Steve Nesius/WDG Photo via Shutterstock/Photo montage by Salon)

When the Supreme Court decision in Obergefell v. Hodges came down and same-sex marriage was suddenly, finally legalized throughout the country, the response from social conservatives was loud and predictable: “What about our religious liberty?” We’ve seen versions of this fight play out time and again over the last few months and years as religious conservatives have sought to slow the rapid advance of gay rights by arguing that their constitutionally protected religious freedoms are threatened when the state makes it illegal to discriminate against gays. With the Obergefell ruling, the “religious liberty” crowd are facing their most challenging setback: If marriage equality for gays is now the law of the land, what can one do to protect one’s “religious freedom”?

Republicans like Ted Cruz and the Republican attorney general of Texas think they have the answer, and it gets to the ugly trajectory of the “religious freedom” push against gay rights: If the law won’t allow you your “religious freedom,” well, then, declare your freedom from the law.

Cruz laid out his argument on NPR a few days ago, claiming that states that weren’t parties to the Obergefell suit “are not bound by it” and “there’s no legal obligation to acquiesce to anything other than a court judgment.” In an interview with the Texas Tribune, Cruz said that government clerks should “absolutely” be able to refuse to issue marriage licenses if they have a religious objection. “Ours is a country that was built by men and women fleeing religious oppression.” Cruz’s opinion on the matter was joined by Texas Attorney General Ken Paxton, who wrote that “county clerks and their employees retain religious freedoms that may provide accommodation of their religious objections to issuing same-sex marriage licenses.”

So there you have it: two high-ranking conservative public officials explicitly arguing that government employees may ignore the law if they can claim a religious objection. As the Atlantic’s David Graham writes, this is the very stuff of nullification theory: the idea that states are either not obligated to follow federal law or that states can pass laws that supersede federal law. Anyone who’s spent any time studying the Constitution – like Harvard Law graduate and former Texas solicitor general Ted Cruz, for example – knows that nullification is flagrantly unconstitutional and undermines the very foundations of our system of government.

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