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:
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.
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:
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.
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: