The Supreme Court just legalized same-sex marriage in all 50 states. But what does that mean for religious conservatives who believe same-sex marriage is wrong? Will churches be forced to perform gay weddings? Will bakers be forced to bake gay wedding cakes?
The answer to the first question is no. But the answer to the second question still isn't clear. And that's because of the biggest hole in the Supreme Court's decision.
Religious conservatives can still preach that same-sex marriage is wrong
Justice Anthony Kennedy's opinion went out of its way to reassure religious conservatives that this case won't interfere with their beliefs. They can "continue the family structure they have so long revered" — which implies that pastors won't be forced to perform same-sex marriages because of this decision. And they can try to persuade people that same-sex marriage is morally wrong and people shouldn't practice it (although at least one local newspaper, the Patriot-News in central Pennsylvania, has already announced that it will no longer publish anti-same-sex marriage op-eds or letters). They're just not allowed to get the state to turn those beliefs into law:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
But that barely scratches the surface of the conflict between religious freedom and LGBTQ civil rights. As the controversy over Indiana's Religious Freedom Restoration Act earlier this year showed, religious conservatives aren't worried about losing their ability to say same-sex marriage is wrong. They're worried that they're going to be forced to recognize same-sex couples in practice.
The clichéd example is that bakers who oppose same-sex marriage will still have to bake wedding cakes for same-sex couples. (In some states that have anti-discrimination laws protecting LGBTQ citizens, that's already happening.) The deeper fear, as Vox's Matt Yglesias pointed out, is that — even if they're safe for now — churches will eventually be forced to recognize and perform same-sex marriages, or lose their tax-exempt status if they don't.
Kennedy's decision has absolutely nothing to say about that, one way or the other. That's because this decision — like every recent Supreme Court decision about LGBTQ rights — has managed to avoid a question that it's typically required to answer whenever it says that the state is violating someone's equal rights.
When can the state discriminate?
A law can be discriminatory and still be constitutional. From a constitutional perspective, there are two questions: Does this law discriminate against a group? and Is that discrimination justified?
The answer to the second question depends on the group being discriminated against. If a law is racially discriminatory, it has to meet a very high standard called "strict scrutiny" to be upheld — the state has to prove that it had a very good reason to make the law and that it worked very hard to tailor it narrowly to minimize the discriminatory effects. Very few laws meet that standard. If a law discriminates against the elderly, though, the state just has to show it had a "rational basis" for passing it — that's a much easier standard to meet. (There's an intermediate standard called "heightened scrutiny.")
The Supreme Court has heard a bunch of cases lately dealing with LGBTQ rights. But it hasn't said which standard it's using to judge laws that discriminate against them. And that trend continued with today's decision. Some observers felt that Kennedy went out of his way to avoid saying that laws that discriminate against LGBT citizens need to meet a higher standard to be upheld.
This ruling doesn't help LGBTQ couples fight adoption bans — or discriminatory bakers
As constitutional scholar Adam Winkler points out, that could be a problem for LGBTQ people trying to fight bans on, say, same-sex adoptions. But it also leaves open the crucial question of whether a law like Indiana's, which would allow an individual or group to discriminate against LGBTQ people on the basis of religion, is constitutionally acceptable.
Winkler writes:
The Court in Hobby Lobby said that businesses have religious rights and can, on that basis, refuse to follow generally applicable laws. Yet the Court also said that religious freedom wouldn't justify racial discrimination because the government has a compelling reason to prevent such treatment.
The court has said that religious freedom doesn't allow discrimination against groups that get the "strict scrutiny" standard. But without knowing what standard the court is applying to LGBTQ citizens, it's impossible to know whether religious freedom trumps LGBTQ rights.
The only way that's going to get clearer is through future legal battles. So it's possible that religious conservatives' fears are justified: that even though today's ruling doesn't force a church to recognize a same-sex marriage, a future ruling will. Matt wrote this earlier this year, and I think he's right:
Maybe someday soon, opposition to same-sex marriage will be seen as equally beyond the pale as Bob Jones's ban on interracial dating. Maybe churches will be forced to choose between losing their tax-exempt status and being forced to perform weddings they regard as theologically illegitimate. This strikes me as far-fetched — the Catholic Church and other religious institutions have, for decades, managed to secure exemption from bans on gender discrimination in employment even as formal gender discrimination in general is deemed unacceptable. But though it's far-fetched, I've seen enough history that I won't call it crazy. It turns out the crazy Mississippi racist was right and the sensible civil rights advocates were wrong about the slope from school integration to race mixing.
