Justice Anthony Kennedy, while dictating one of the most sweeping social changes in history in his opinion in the Obergefell v. Hodges case that legalized same-sex marriage across America, waxes magnanimous towards foes of the expansion of the millennia-old definition of marriage. He said those who believe same-sex marriage is wrong may “reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged” in the court’s pronouncement. Likewise, President Obama spoke deferentially of “Americans of goodwill” whose “[o]pposition in some cases has been based on sincere and deeply held beliefs.”
But these statements are platitudes at best; more likely, they are simply disingenuous. In a previous Supreme Court opinion, United States v. Windsor, Kennedy characterized the Defense of Marriage Act as calculated to “degrade or demean” same-sex couples, hardly a “decent and honorable… premise” by any definition. And the president has often compared the treatment of gays wishing to marry with the treatment of blacks prior to civil rights legislation in the 1960s. Certainly the president would not characterize opponents of racial equality as “Americans of goodwill” simply following “sincere and deeply held beliefs.”
So while Kennedy and the president pay lip service to religious freedom when it comes to the same-sex marriage, the American Civil Liberties Union is more forthright. Even before the decision was handed down on Friday, the ACLU’s deputy legal director Louise Melling made clear in a Washington Post op-ed that toleration for religious liberty claims when it comes to same-sex marriage and gay rights issues in general is wearing thin. “[R]eligious liberty doesn’t mean the right to discriminate or to impose one’s views on others,” Melling wrote.
On the surface, Melling’s view may seem to be at odds with Kennedy’s summation of his opinion’s effect on religious liberty:
But to what end? Even if the debate continues unhampered by further government intrusion on religious liberty, what can opponents hope to accomplish short of a constitutional amendment? Even if public opinion swings back in favor of traditional marriage, Kennedy’s majority opinion has cut-off the legislative route. The above paragraph ends with:
Even if 100 percent of the voters in a state opposed same-sex marriage, no state law or state constitutional amendment would withstand Kennedy’s ruling. The last amendment to the U.S. Constitution, the twenty-seventh, was ratified in 1992, 202 years after it was introduced. Before that, the most recent amendment was ratified in 1971. This country does not amend the Constitution lightly, but even if it were to happen in this case, the process would not be a rapid one.
And how would opposition be treated during that time? As “decent and honorable”? As holding a “sincere” belief? Louise Melling of the ACLU provides the more likely answer:
The key is this sentence: “In the civil rights era, we rejected the claims of those who said it would violate their religion to integrate.” Those who reject same-sex marriage are the new segregationists. “Homophobes” are the new racists. Perhaps there will be a honeymoon period for same-sex opponents to get their minds right (although this would not be apparent from the reactions of many same-sex advocates on Twitter, admittedly not a representative sample of America). Perhaps some same-sex marriage advocates even lack the strength of conviction that rejection of same-sex marriage is no better than racism, an equivalence opponents of same-sex marriage of course utterly reject. Kennedy’s opinion, however, and the president’s framing of the same-sex issue as the civil rights issue of today leave little alternative. If Kennedy’s opinion means “love wins,” the flip side is “hate loses.”
In the 1980s, Bob Jones University lost tax exempt status over its prohibition of interracial dating (a policy it ultimately disavowed years later.) Can there be any doubt that tax exempt religious institutions that refuse to accommodate same-sex dating and marriage will face a similar fate? Solicitor General Donald B. Verrilli, Jr., admitted the similarity of the situations during arguments in Obergefell v. Hodges, saying, “[I]t’s certainly going to be an issue. I don’t deny that.”
While not specifically mentioning the tax exemption issue in his opinion, Kennedy seemed anxious to “deny that,” as did President Obama in his public remarks following the decision. But it will not be long before referring to same-sex marriage opponents as “Americans of goodwill” with “utmost, sincere conviction” will be as unthinkable as characterizing white supremacists with those words. For same-sex opponents, losing tax exemption may be only the beginning.
