After hearing the oral arguments in the Obergefell v. Hodges case and listening to a Heritage Foundation panel discussion on the Supreme Court justices’ questions and what they might mean, I’m slightly more hopeful that the justices will resist the urge to invent a constitutional right to same-sex marriage. That would be a good thing. But at the risk of sounding like a Jeremiah, I have to say I’m not sure what practical difference resisting that urge will make.
As Solicitor General Donald Verrilli noted in response to a comment from Chief Justice Roberts, even if the justices do rule against a constitutional right to same-sex marriage, “questions of accommodation [of religious liberty] are going to arise . . . in states where there is no same sex marriage [and in states] where there [is].”
Verrilli is right. Leaving it to the states to decide their own definition of marriage isn’t necessarily going to protect the religious freedom of their citizens. And by declining the Elane Photography case, the Court has already signaled its lack of interest in resolving these questions when they do arise.
As of now, 37 states have legal same-sex marriage. Only 11, however, decided the issue through the democratic process. The other 26 have had same-sex marriage imposed on them by the courts. The vast majority of those decisions have occurred since the Windsor decision in June 2013 – an outcome the justices most certainly anticipated.
In the unlikely event the Supreme Court fails to create a constitutional right to same-sex marriage in Obergefell v. Hodges, my guess is that few if any of those 26 states will turn back the clock. The economic and other pressures to retain the status quo will be massive and unrelenting, and many governors and attorneys general won’t have the stomach for the fight. Others, like the governor and attorney general of Virginia, support same-sex marriage anyway and have no desire to fight.
In the 13 states that still define marriage as the union of a man and a woman, same-sex marriage advocates will wage intensive campaigns to pressure those states, first, to legally recognize same-sex marriages performed in other states (if the Court doesn’t require it in deciding Question 2 in Obergefell), and second, to legalize same-sex marriage, as well. The mauling Indiana took over its RFRA law offers an indication of what those campaigns will look like. Same-sex marriage advocates will give no quarter until every state falls into line.
The pressure will be equally intense on individuals, businesses, and institutions that refuse to get with the program. Those who oppose same-sex marriage for religious or any other reason will at the very least continue to be vilified, marginalized, and threatened with losing their jobs and businesses. Churches, religious schools, and other institutions and organizations will also be targeted. Resisting such pressure will become increasingly difficult, if not impossible.
So while I would certainly welcome a Supreme Court decision affirming the right of states to define marriage as they see fit, at best it will be nothing more than a bump in the road. The money and cultural influence of the same-sex marriage lobby will still drive us relentlessly on toward the nationwide legalization of same-sex marriage even if it means the complete destruction of anyone who doesn’t get out of the way.