The parable of David French
This is how conservatism dies, and this is how marriage is surrendered
From time to time, just one human story becomes something akin to a modern parable. David French—writer, lawyer, public intellectual—is now that person. It is no insult to say that French, in himself, contains multitudes. In two recent articles, French defends both what is wrongly called the “Respect for Marriage Act” and his own process of thinking about same-sex marriage. He says that he has written these articles as acts of personal intellectual honesty, and I have no reason to question his integrity of mind. What I mean to criticize most strenuously is the ideas he now promotes. I do not argue that David French is disingenuous. I argue that he is wrong, and dangerously wrong at that.
In a piece published last week at The Atlantic, French argues that the Respect for Marriage Act rightly “protects same-sex marriage” and “contains religious-freedom protections for religious dissenters, including explicit protections for tax exemptions.” His main argument is that the legislation codifying same-sex marriage nationwide rightly balances competing interests (LGBTQ rights and religious liberty) and thus represents “how pluralism is supposed to work.” He argues that the bill just maintains “the legal status quo.”
But French’s piece also appeared to argue civil marriage should include same-sex marriage, or at least should do so after the Supreme Court’s Obergefell decision of 2015. He asserted that the bill, while imperfect, “still contains provisions that can comfort (almost) everyone.”
Well, I remain uncomforted. I agree with the religious freedom advocates who see the “protections” offered in this bill as woefully inadequate. In expansive language, the bill offers vague promises that, in turn, assert protections already in place, address arguments no one was making, or leave religious schools and organizations extremely vulnerable. French once worked as an attorney for Alliance Defending Freedom, but the ADF president has called the claim of real religious protections in this bill “hogwash.” I am not sure that was meant as a technical term of law, but it is language clear enough we can all understand.
Sen. Mike Lee, R-Utah, stated by tweet: “I offered to support the bill if the sponsors would include my amendment to prohibit the government from removing tax-exempt status based on religious beliefs about same-sex marriage (for or against). The sponsors adamantly refused even to consider that. Why?”
One of the first problems I see is that, while the bill as passed by the Senate contains language assuring that no religious congregation will be required to perform same-sex ceremonies, protections for religious teachings against same-sex marriage (and the range of claims associated with LGBTQ identity politics) are clearly inadequate. There is much more to say about the threat to religious liberty seen here, but the issue of David French’s change of mind on same-sex marriage demands a closer look, given his years of influence among evangelicals.
In a second piece, published just two days after his Atlantic article, French explained “Why I Changed My Mind about Law and Marriage, Again.” Again? In this essay, French tells us that he had offered public support for redefining civil marriage to include provision for same-sex couples back in 2004, before reversing his position in light of the Obergefell decision of 2015. He says that he makes a clear distinction between Christian marriage, which can always mean only a man and a woman, and civil marriage, which he sees as rightly decided by some balancing of interests. French made direct reference to the ominous statement in the Court’s hearings on Obergefell in which Donald Verilli, then Solicitor General of the United States, had told the Court that claims against religious institutions that did not affirm same-sex marriage “will be an issue.” French tells readers that he “became concerned that the movement for same-sex marriage would be ultimately ruinous for religious liberty.” He was right, then.
He is wrong now when he asserts that the Supreme Court sufficiently values religious liberty so that legislation like the Respect for Marriage Act can now codify same-sex marriage without threat. To borrow the right word, hogwash.
So, as David French acknowledges, he changed his mind on same-sex marriage, again. But what about his view of same-sex civil marriage in itself? Here is where we now see something we had missed before—or at least I had missed before. I had no knowledge of French’s argument in 2004. It was, a decade later, his defense of religious liberty after Obergefell that caught evangelical attention and appreciation.
But was French flatly against same-sex civil marriage? It now appears that the answer is no, and has been no for a long time. French identifies as a civil libertarian who wants to see a balancing of interests and claims within pluralism. As for his position on redefining marriage as a civil institution, he writes, apparently of his 2004 position: “I wanted gay couples to enjoy marriage-equivalent legal protections but without changing the legal definition of marriage. I wanted gay couples to enjoy the legally protected right to build a life together without creating a legal superstructure that ripped apart religious freedoms that are indispensable to the health of the republic and to the flourishing of countless millions of American lives.”
That argument should astound evangelical Christians. The key issue seems to be French’s basic confidence in pluralism as the great civic goal and central political principle. But pluralism requires careful definition and boundaries. In a recent book, French explains, “I recognize pluralism as a permanent fact of American life and seek to foster a political culture that protects the autonomy and dignity of competing American ideological and religious communities.” But what, dare we ask, are the allowable boundaries of respectable pluralism? In answering this question, David French is particularly unclear. If he is clear, his view would undermine any stable public morality based on any objective moral truths.
In their noteworthy debate over “Drag Queen Story Hour” programs for children in public libraries, Sohrab Ahmari proclaimed French’s mixture of civil libertarianism and ideological pluralism as “David French-ism.” Well, David French-ism exploded into view with these two recent articles.
One of the most perplexing marks of our time is the defection of so many “conservatives” from the cause of conserving what Russell Kirk called “the permanent things.” If marriage is not conserved—if civil marriage is not conserved as a man-woman union—then nothing genuinely conservative can last, at least for long. Support for the Respect for Marriage Act is bad enough. The way David French frames his argument is worse. This is how conservatism dies, and this is how marriage is surrendered.
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