Given the recent rapid swing in public opinion regarding same-sex marriage and sexual orientation more broadly, the Supreme Court’s historic ruling in Obergefell v. Hodges will likely come to be seen as a landmark of the constitutional landscape. Just as, in our era, prospective Supreme Court Justices must explain how their judicial philosophy approves of the 1954 Brown v. Board ruling that de jure racial segregation is unconstitutional, so, at some point in the future, we can imagine Senators grilling nominees to the high court to ensure that they approve of Obergefell.
But that future is not yet here. Although some enlightened Republican politicians see in Obergefell a welcome opportunity to declare defeat on this front of the culture wars and move on to battle on more favorable terrain, others will fight on. At the national level, Republican presidential aspirants hoping to capture the support of the constituency that Pat Buchanan once (affectionately) called “peasants with pitchforks,” are already denouncing Obergefell as lawless and godless.
With support for same-sex marriage now at around sixty percent, that pitch will surely fail at the national level, even as the need to appeal to the Republican base in the primaries may create difficulties for the eventual nominee when it comes time to pivot to the general election. A more serious rear-guard action will occur in some of the most conservative states.
Segregationists in the South (joined by some in the North) responded to Brown with a campaign of “massive resistance.” It took decades before support for segregation became a fringe position in American life, and even today, Brown’s iconic status rests in substantial part on the right’s reinterpretation of its meaning. Conservative justices profess fealty to Brown because they see in it the principle of color-blindness, which they find useful for opposing race-based affirmative action.
It is hard to imagine a similar re-imagination of Obergefell as a decision that thwarts rather than serves gay liberation. Nonetheless, it is easy to imagine a campaign of, if not massive resistance, then at least substantial resistance to the Court’s ruling. Indeed, that campaign has already begun.
What forms will the social conservative right’s resistance to Obergefell take? It is difficult to predict all of the details in advance. One of the characteristic features of organized efforts to evade legal obligations is their adaptability. Consider the disenfranchisement of African Americans following the end of Reconstruction. States and localities blatantly violated the Fifteenth Amendment; when that didn’t work, they resorted to an ever-shifting set of tactics, like literacy tests (with grandfather clauses for illiterate white voters), gerrymandering, and nominally private violence.
Should organized resistance to same-sex marriage persist for more than a few years, we can expect innovative forms of obstruction. Initially, however, we are likely to see variations on three main themes: Merely technical compliance; religious opt-outs; and under-the-radar outright defiance.
Last year, the satirical magazine The Onion ran a story about a Mississippi law requiring doctors to climb an eighteen-foot-high wall before performing an abortion. The story was fictional but only just barely. Since the Supreme Court’s 1973 ruling in Roe v. Wade, anti-abortion state legislatures have enacted hundreds of laws that, while not completely forbidding abortion, make it difficult for women to obtain abortions. Many such laws are eventually declared unconstitutional, but not all of them, and even when a law is eventually enjoined as invalid, in the interim it may have been enforceable, and fighting it will have drained resources from pro-choice organizations.
Similar efforts will likely emerge in states with strongly anti-same-sex marriage elected officials. Louisiana and Mississippi have announced that they will delay implementation of same-sex marriage in their states at least until the Supreme Court denies a (rarely granted) petition for reconsideration and, even then, may find new reasons to drag their heels.
Other state officials are contemplating borrowing a page from the massive resistance playbook by ceasing issuing marriage licenses entirely. This tactic met with partial success in the civil rights era. Although the Supreme Court held that a state could not simply privatize its public schools and thereby evade Brown’s desegregation mandate (because the schools remained public in key respects), in Palmer v. Thompson the Justices upheld Jackson, Mississippi’s decision to close its public swimming pools rather than integrate them.
If the Supreme Court’s Obergefell ruling rested simply on equal protection, then perhaps the swimming-pool case would be an apt precedent. For then, as in Palmer, no one would be treated unequally when the state denied marriage licenses to everyone. However, the Obergefell Court relied chiefly on the proposition that there is a fundamental right to marry. By contrast, there is no fundamental right to swim in a public pool. Accordingly, states cannot simply get out of the business of issuing marriage licenses.
Religious opt-outs may be the most promising avenue for states seeking to thwart or delay the implementation of same-sex marriage. In Employment Division v. Smith, the Supreme Court held that there is no constitutional right of an individual to disobey a general rule of law, but as last year’s Hobby Lobby case made clear, legislatures can grant religious exceptions that go beyond what the Constitution requires.
However, the scope of a legislature’s power to grant religious exceptions from constitutional duties is somewhat unclear because the litigated cases involve religious exceptions for private actors who have no duty to abide by the Constitution in the first place. For example, New York’s Marriage Equality Act recognizes same-sex marriage but affirms the right of private religious organizations to refuse to participate in solemnizing such marriages. It does not grant county clerks the right to opt out of issuing marriage licenses.
Can a state grant a government official the right to opt out of his constitutional obligation? There is no Supreme Court case law directly on the question.
Some guiding principles nonetheless seem fitting. Suppose that a police officer sincerely believed he had a religious obligation to use excessive force in making arrests in violation of the Fourth Amendment. Surely the state could not accommodate that (admittedly unlikely) religious obligation by subjecting the people the officer arrests to unconstitutional force.
At the same time, however, federal and state law grant medical and other personnel, including those employed at public facilities, the right to opt out of performing abortions, even though abortion is a constitutional right. The Supreme Court has never directly addressed a challenge to such provisions, but it is a reasonably fair implication from the Hobby Lobby case that if it did, the Court would uphold these “conscience clauses.”
What explains the difference between the (presumably invalid) religious exception to the Fourth Amendment and the (presumably valid) exception to the abortion right? The obvious answer is that a person arrested by the hypothetical police officer will certainly have her Fourth Amendment rights violated, while the refusal of one doctor, nurse, or pharmacist to participate in an abortion does not necessarily deny anyone the right to abortion, so long as other personnel are available to do the job.
Thus, at a minimum, in order for a religious exception to granting same-sex marriage licenses for county clerks and their equivalent to be constitutionally valid, there would need to be other county clerks readily available to do the job. Even then, such a conscience exception might be invalid. Imagine that a county clerk had a religious objection to granting marriage licenses to interracial couples or to Muslims. Would it be a sufficient answer to the constitutional claim that the couple can simply get their license from another clerk? Almost certainly not—and insofar as Obergefell rests on principles of equality and dignity as well as liberty, it probably should not be permissible for a state to permit its religiously-scrupled clerks to refuse marriage licenses to same-sex couples, even if it provides a separate-but-equal window for them.
A legal test of religious opt-outs may come sooner rather than later. Two days after the Supreme Court’s ruling in Obergefell, Texas Attorney General Ken Paxton issued an advisory opinion concluding that county clerks may have a religious right to refuse to issue same-sex marriage licenses. Should one or more clerks act on that advice, litigation could quickly ensue.
In his controversial book The Hollow Hope, Gerald Rosenberg argued that courts cannot bring about social change, using Brown as his main example. Rosenberg argued that serious desegregation did not occur until after Congress enacted the 1964 Civil Rights Act, placing the political branches of the federal government behind the desegregation mission. Chief Justice Roberts sounded a similar theme in his dissent in Obergefell.
I share the view of many scholars who think that Rosenberg’s thesis is overstated, and thus that the Chief Justice was also wrong in warning that the Court’s Obergefell ruling robbed marriage equality proponents of the opportunity for a greater victory in the political domain. Still, a substantially narrower version of the thesis is obviously correct: A Supreme Court ruling does not enforce itself. People who are determined to resist will do so.
For example, the Supreme Court declared organized school prayer unconstitutional over fifty years ago. The ruling was widely unpopular and resistance took a variety of forms. States enacted laws authorizing formally voluntary school prayer; they authorized moments of silence; and so forth. Even after the Court struck down these efforts, resistance continued—and continues to this day.
Often the most effective resistance is also the crudest: government officials simply violate the constitutional mandate and wait to be sued. They then drag the litigation out as long as possible, sometimes abetted by a sympathetic district judge, and then once the victorious plaintiff graduates, they start the process anew.
In the end, the success or failure of these and other obstructionist tactics depends on social acceptance of the underlying legal norm. Changing social norms over the last several decades strongly suggest that resistance to marriage equality will not last long. But that does not mean that acceptance will come immediately. After all, sixty-one years after Brown, Americans—especially white Americans—are still struggling to accept racial equality.