The Supreme Court’s 5-4 ruling last month in Obergefell v. Hodges,¹ holding that state bans on same-sex marriages violated the Fourteenth
Amendment, was undoubtedly an important constitutional decision. It meant different things for different parties. Three of the dissenting justices, ² along with many commentators, noted their grave concerns that Justice Anthony Kennedy’s majority opinion will lead to serious government
interference with the religious liberty of Americans who believe as a matter of religious conviction that same-sex marriages violate God’s law. Of course,
among those who worked to promote marriage equality and the rights of the LGBT community, Obergefell was reason to celebrate.

It’s not that easy to isolate and evaluate the effect this decision will have on religious liberty. Concerns about conflicts between religious freedom and
laws protecting same-sex couples against discrimination are nothing new. They predate Obergefell by a decade. Over that time period, there has been
a dramatic cultural and political shift in attitudes in favor of same-sex marriage. Demographics strongly suggest that support for same-sex marriage will
continue to increase. To be sure, Obergefell may accelerate cultural and political support for same-sex marriage, but its holding is hardly
responsible for this dramatic change in perspective.

It is true, of course, that the decision requires the governments of all states to recognize same-sex marriages now. Thus, today there are more
jurisdictions in which religious opposition to same-sex marriages may generate legal conflicts.³ This change in constitutional law, standing
alone, may burden some religious individuals. State employees—such as county clerks, for example—may be required to issue marriage licenses to same-sex
couples notwithstanding their religious objections to doing so.

Much of the disquietude expressed about Obergefell’s impact on religious liberty, however, does not focus on government employees. Most of the
potential burdens on religious liberty identified by courts and commentators involve the adoption of statutes and regulations that prohibit discrimination
against same-sex couples by private sector professionals, proprietors, employers, businesses, and religious institutions. The enactment of such laws—and
the refusal to grant religious exemptions from them—is a matter of political will, not constitutional law. The real concern of Obergefell’s critics
is that the Court’s opinion itself may encourage society to be less tolerant of religious opposition to same-sex marriages. If the Court’s decision
persuades more Americans to believe that same-sex marriages are both morally acceptable and deserving of legal respect, arguably there will be less
sympathy for granting exemptions to religious individuals or organizations holding contrary beliefs.

One would think that the first and best place to look to determine the effect of Obergefell on religious liberty is the opinion itself. But a word
of caution is necessary here. Very few Americans actually read Supreme Court opinions—even groundbreaking ones such as Obergefell. They rely on
media and commentary to interpret judicial decisions for them. In the case of Obergefell, many accounts of the case (wrongly) suggest that the
decision is grounded on equality principles and declares that discrimination against gays and lesbians is unconstitutional. If people believe that, this is
what the case will be understood to mean.

In fact, however, the majority opinion in Obergefell does not say that discrimination against gays and lesbians violates the Fourteenth Amendment.
Indeed, it really says very little about equality at all. It certainly does not say that gays and lesbians are a quasi-suspect or suspect class or that
classifications based on sexual orientation should be as rigorously reviewed as racial or gender classifications. Unlike many lower federal court decisions
that struck down same-sex marriage bans, the Obergefell opinion does not discuss conventional equal-protection doctrine at all.

Instead, Obergefell holds that bans on same-sex marriage violate the “substantive due process” right to marry. The focus is on personal liberty, not
group equality. Same-sex marriage bans are unconstitutional because they abridge the fundamental right of privacy and personal autonomy that encompasses
the right to marry. Much of Justice Kennedy’s opinion expresses a powerful vision (often in lofty and eloquent language) of the meaning and value of
marriage, and it describes the unavoidable material and dignitary harm couples will experience who are denied that status. There is only the most cursory
description of the history and scope of discrimination directed at gays and lesbians throughout American history.

To the extent that Justice Kennedy talks about equality at all, he discusses equal treatment with regard to the exercise of a fundamental right. Whereas
core equal-protection doctrine focuses on laws directed at who a person is (a woman or an African-American, for example), this due-process/equal-protection
analysis applies only to the right a person exercises.

What does this distinction between liberty and equality rights have to do with the likely impact of Obergefell on religious liberty? To begin with,
it means that this case, important as it is, is limited in its scope. It does not extend beyond the right to marry. Its holding does not require religious
individuals or institutions to alter their conduct toward gays and lesbians or same-sex couples in any other context. Moreover, the role of government with
regard to liberty rights has historically been different than its role when equality rights are at issue. Generally speaking, the government mandate with
regard to liberty rights is one of noninterference. Government should keep its hands to itself and leave the exercise of fundamental rights to private
decision-making and ordering. Equality rights are different. Here, government is already involved in regulating or providing benefits to private activities
and must restructure what it is doing to achieve constitutionally required equality. Put simply, the government is more likely to interfere in private
affairs when it attempts to further equality principles. It is no accident that the case that fuels the most fear about intrusions into religious liberty, Bob Jones University v. United States,⁴ involves a compelling state interest grounded in racial equality, not in the promotion of some
personal liberty interest.

Also, in analyzing alleged abridgments of a liberty right, the Court usually focuses on the importance of the right. In equality cases its emphasis is on
the biased motives of the majority in enacting the challenged law. Thus, opponents of same-sex marriage are more likely to have their beliefs impugned and
their interests ignored if bans on same-sex marriage are understood to be manifestations of invidious discrimination that violate equal-protection
guarantees rather than abridgments of personal liberty violating substantive due process. If the danger to religious liberty from Obergefell arises
from the message it communicates about opponents of same-sex marriage, that danger is reduced considerably by the majority’s decision to base their
analysis on a substantive due-process foundation.

This distinction is apparent if we compare Justice Kennedy’s opinion in Obergefell with his opinion in United States v. Windsor ⁵
(the case that struck down DOMA, the Defense of Marriage Act) two years ago. Windsor was more of an equal-protection case. A core component of its
analysis was the Court’s determination that the supporters of DOMA were “motivated by an improper animus or purpose.”⁶ The mean-spirited intent
of the statute—to demean and disparage same-sex couples—was constitutionally impermissible and required its invalidation. Kennedy’s language is starkly
different in Obergefell. Here, Kennedy writes that the belief underlying opposition to same-sex marriage “has been held—and continues to be held—in
good faith by reasonable and sincere people here and throughout the world.”⁷

It is also useful to read Obergefell together with Loving v. Virginia,⁸ the 1967 case striking down bans on interracial
marriages. Loving is primarily a conventional equal-protection, race-discrimination case. The Court describes Virginia’s anti-miscegenation law as a
racial classification, “odious to a free people.”⁹ The reasons for adopting the law were “obviously an endorsement of the doctrine of White
Supremacy.”¹⁰ The law had no purpose other than “invidious racial discrimination.”¹¹ In Obergefell, by comparison, Kennedy
writes that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and
neither they nor their beliefs are disparaged here.”¹² It is inconceivable that anyone on the Court would use such language to describe the
racist beliefs condemned in Loving.

Surprisingly, the dissenting justices in Obergefell reject the hand of mutual respect that Kennedy extends to opponents of same-sex marriage. They
insist that his opinion is disparaging of opponents of same-sex marriage and that it will be used aggressively to deny religious liberty to anyone seeking
an accommodation of their religious beliefs. Justice Kennedy’s respectful language is allegedly nullified¹³ by his statement that when sincere
personal opposition to same-sex marriage is enacted into law, it places the imprimatur of the state on an exclusionary policy that necessarily “demeans or
stigmatizes those whose . . . liberty is denied.”

¹⁴

Recognizing that the effect of a law may be stigmatizing or demeaning, however, does not mean that the law was intended to have that effect.
This idea is subtle, but it is important. Sometimes proponents of a law focus so much on the law’s benefits that they fail to accurately appreciate its
harm or costs to third parties. That is different than animus—where the purpose of the law is to inflict harm on a despised group. Similarly, a commitment
to sacred and traditional understandings of a social institution may reflect primarily reverence for the role that understanding plays in a complex
theology or worldview. It is possible to respect adherents of that understanding while acknowledging the problematic consequences that result from enacting
it into law.

Justice Kennedy’s analysis here focuses on the difference between private belief and state action. Beliefs may be benign when they are accepted by, and
limited to, individuals and private communal institutions, but have very different meaning and consequences when they are codified into law. A religious
community that will not sanctify a same-sex marriage in its house of worship is fundamentally different than a state that will not recognize a same-sex
marriage anywhere.

Indeed, this distinction is intrinsic to religious pluralism in the United States. Most religions are exclusionary to some extent. That is accepted as a
matter of private belief. Members of minority faiths do not feel demeaned because larger religions consider minority beliefs to be erroneous and will
exclude adherents of such beliefs from membership in the majority’s church. The analysis changes once the state becomes involved, however. If the state
adopts the tenets of larger faiths, proclaims the beliefs of minority faiths to be in error, and denies members of minority religions access to the
privileges of citizenship available to the majority, the government’s actions will be understood very differently. When it is the state that denies the
validity of the minority’s beliefs and it is public opportunities that are being denied to the minority’s members, the government’s actions can be
accurately described for constitutional purposes as demeaning and stigmatizing.

In brief, I consider Justice Kennedy’s opinion in Obergefell to be a limited decision vindicating the right of same-sex couples to marry. There is
nothing about its tone or substance that suggests that it should serve as a clarion call to ignore and trample over the interests of religious individuals
and institutions who oppose same-sex marriage. There is some troubling language near the end of the opinion, language that seems to imply as a
constitutional matter that there is nothing special about religious exercise that justifies special accommodations for religious persons or institutions. ¹⁵ This brief passage hardly suggests that discretionary accommodations are unwise or unnecessary or that they will be rejected by the political
branches of government.

However, even if Obergefell is read as a limited decision, religious liberty conflicts relating to same-sex marriage are certainly going to arise.
It is important to reiterate, however, that most of these conflicts depend on the adoption of statutes and regulations prohibiting discrimination against
gays and lesbians or same-sex couples in the workplace or places of public accommodation. No federal statute provides such protection today. Twenty-eight
states provide no civil rights protection for gays and lesbians either. Obergefell does not alter this civil rights landscape. Nor do I see any
indication of political will to tamper with the tax exemptions of religious institutions in the foreseeable future. The Bob Jones case, which upheld
the denial of a federal tax exemption to a religious university, involved racial discrimination, not the abridgment of a liberty right. For the foreseeable
future, the gap between Obergefell and Bob Jones is far too wide to be the basis of serious worry.

Indeed, readers concerned about Obergefell’s consequences might examine Justice Kennedy’s opinion to see if its analysis and language can be used to
support the protection of religious liberty affirmatively. Justice Kennedy writes with some eloquence about the nature of marriage, personal autonomy, and
human dignity. He notes the nobility and dignity of marriage.¹⁶ He describes how the bond of marriage enables “expression, intimacy, and
spirituality.”¹⁷ Kennedy argues that the liberty the Constitution protects includes “personal choices central to individual dignity and autonomy
. . . that define personal identity and beliefs.”¹⁸ And he movingly acknowledges “the universal fear that a lonely person might call out only to
find no one there.”

¹⁹

For the most part, the dissenting justices disparage and ridicule these sentiments about human dignity, nobility, and autonomy. Their error in doing so is
palpable. Defenders of religious liberty should embrace these core principles and insist that they apply as meaningfully and forcefully to individuals
seeking to adhere to their religious beliefs, identity, and community as they do to individuals joining together in marriage. An individual’s decision to
accept the duties that arise out his or her relationship to God is central to human dignity and defines that person’s identity. Membership in a religious
community enables “expression, intimacy, and spirituality” in ways that may transcend what an individual can do alone. Faith and religion respond to the
“the universal fear” that we may call out in need and receive no response.

Obergefell
confirms that same-sex marriages are lawful throughout the United States. That reality is not going to change. Religious individuals and communities should
consider the possibility that the best way to defend religious liberty when it conflicts with laws protecting same-sex couples from discrimination may be
to argue that the principles and values supporting state recognition of same-sex marriage apply with equal force to the accommodation of religious liberty.