When I read the other day that Marco Rubio had suggested on David Brody’s influential Christian Broadcasting Network show that we were on the brink of conservative church teachings on homosexuality being deemed “hate speech,” I made a mental note to write about it, but then lost that note somewhere along the way. Fortunately, Sarah Posner, who knows the subject better than I do, took it on, and leaves the supposedly very smart Rubio looking muddled and confused.

[Rubio] is vague about who is labeling Catholic teaching “hate speech.” Does he mean the government? Does he mean people on the internet? Under the First Amendment, the government cannot stop citizens from engaging in speech, even if a listener finds it hateful. If by “they” he means American citizens, the simple answer is “they” have a constitutionally protected right to criticize the Catholic church; the church also has a constitutionally protected right to its doctrine.

But if Rubio is suggesting that “they” are the government, I can’t begin to wrap my mind around the scenario he is suggesting. Is he suggesting the government will deem a church’s teaching “hate speech?” There’s no basis or precedent that would remotely suggest that the government could regulate religious speech (whether “mainstream Christian teaching” or other religious teaching) at all, much less deeming it “hate speech.” The Free Exercise Clause protects religious practice and religious speech. Under the Free Speech Clause, the government cannot proscribe “hate speech” or even define it. Under the Establishment Clause, the government cannot endorse (or renounce) a particular religion.

You can say gay people are intrinsically disordered. Or you can say they don’t have a constitutional right to get married. They can say you’re a homophobe. The government can’t stop any of you.

You’d figure if Rubio, a lawyer, went to the trouble of bringing this up he’d be aware that “hate speech” is not something generally prohibited by law in this country, even outside the framework of political or religious expression, unless it is designed to and in fact leads to legally prohibited behavior like a riot or a very specific act of discrimination. When uttered under the protection of religious expression, there’s almost no such thing as proscribed “hate speech,” as was pretty clearly established by the Supreme Court in Snyder v. Phelps, where the despicable and most definitely hateful ravings of the members of the Westboro Baptist Church at military funerals were deemed protected.

What’s going on here is that Rubio is hard-pressed to identify exactly how “religious liberty” is going to be affected by marriage equality. Since very few Christian conservatives are working in professions that touch on weddings they can go out of their way to boycott, some more general threat must be identified. And so you have Rubio’s slippery slope argument that somehow or other Catholics will be prohibited from expressing their opinion on same-sex marriage. It’s based on a general attribution of malice and bad faith on the part of the majority of Americans who support marriage equality, including, by most measures, a sizable majority of Catholics.

Maybe Rubio just got carried away and thought of the “hate speech” thing as a dog whistle to blow in the direction of Brody’s audience. We’re all supposed to think of him, though, as a cut above your average Republican pol in terms of intelligence and insight. I dunno. Between this stunt and his call for a national security posture based on the Taken movie series, he’s joining Bobby Jindal as a candidate determined to keep dumbing down his message until he’s on the edge of using hand puppets.

Ed Kilgore

Ed Kilgore is a political columnist for New York and managing editor at the Democratic Strategist website. He was a contributing writer at the Washington Monthly from January 2012 until November 2015, and was the principal contributor to the Political Animal blog.