Photo: Karen Pulfer Focht, AP
When the Supreme Court issued the Obergefell decision three years ago today, it looked like the battle for marriage equality was over. After all, the majority ruled that the marriage was now a national right to which any couple was entitled. The ruling was settled law.
But never underestimate the zeal with which opponents of LGBTQ rights will apply to their efforts. Yes, marriage equality is a national right. It is also ripe for erosion by anti-marriage forces.
Look no further than Alabama for proof. Eight counties in Alabama have stopped issuing marriage licenses altogether so that they don’t have to give them to same-sex couples. (The state legislature has repeatedly tried to pass a bill that would eliminate licenses statewide.)
Alabama may be an extreme example, but the right already has a handy template for eroding a right established by the Court: a woman’s right to choose. Roe v. Wade is still the law of the land, but conservative state legislatures have effectively limited the right so severely that in many cases, the right to choose is a hollow promise.
The legislatures didn’t take sweeping actions to restrict abortion. Instead, they used a series of incremental steps that had the effect of making it virtually impossible for providers in large sections of the country to offer abortions.
They also established the conscience clause, allowing providers to opt out of care if their faith disallowed it. Thus, a pharmacist in Arizona just refused to provide a miscarriage-inducing medication for a woman whose fetus had no heartbeat.
If that sounds a lot like a religious liberty case applied to different circumstances, it’s not by chance. The Masterpiece Cakeshop ruling by the Supreme Court paves the way for a much broader application of a conscience clause for businesses.
The Supreme Court may be unlikely to completely overturn the Obergefell decision so soon after it was issued. But, as it has with abortion rights, it may be perfectly willing to pick away at it. You can get married, but your baker and florist may ruin your wedding plans with impunity.
The religious liberty argument is a convenient battleground for anti-marriage forces. But the anti-LGBTQ right can also use that religious liberty argument to erode rights unrelated to weddings, like housing and jobs. Carving out religious exemptions around abortion hardly stopped opponents. They just used it to push for more restrictions.
Of course, if there were federal protections, like the Equality Act, the attacks would continue but have fewer repercussions. Until Democrats control Congress and the White House, though, federal legislation is a distant dream.
The firewall against the subtle erosion of our rights is public opinion. Marriage equality is supported by a majority of Americans, with support particularly strong among young adults. A recent poll found that only 17% of those 18 to 29 oppose marriage equality.
That won’t stop the right from trying. Far from settling the issue, Obergefell just set up a new round of skirmishes. The culture war has been going full tilt since the 1980s. It shows no signs of letting up.