If the debate over marriage looks like it’s becoming more polarized, that’s because it is.
Professor John C. Eastman, founding director of the Claremont Institute’s Center for Constitutional Jurisprudence, said the Supreme Court opened a Pandora’s box in June when it struck down all laws nationwide defining marriage as the union of one man and one woman.
Rather than resolving an issue once and for all — as the court often thinks itself capable of doing — the decision only “further emboldened” the gay rights movement and led to a series of fights at the state level, he said.
“Now, they’re going after any exemptions for religious liberty and whatever. It’s incredibly polarized,” he said.
This is not the first time the Supreme Court has sought to resolve political discord only to further inflame an issue.
“The consequence of trying to settle the issue, ignoring the political resolution that was in the works in Dred Scott v. Sandford, led to the Civil War,” Mr. Eastman said, referring to the 1857 Supreme Court decision that said slaves and their descendants could never become U.S. citizens.
He also pointed to the 1973 decision in Roe v. Wade creating a constitutional right to abortion, which has sparked a nearly half-century culture war in which the question of abortion has taken center stage in the political arena.
“You can’t run for dog catcher in this country without people asking what your position on abortion is,” Mr. Eastman said.
The most prominent legal issue has shifted from abortion to gay marriage and religious freedom.
In response to, or in anticipation of, the Obergefell decision, 22 states in the past two years have introduced legislation that would protect various religious objectors from having to serve at same-sex wedding ceremonies, according to the National Conference of State Legislatures.
Tennessee, for instance, has proposed legislation that would allow religious marriage counselors to refuse to serve same-sex couples. Mississippi enacted a law that protects people who hold traditional views of sexuality and marriage from governmental discrimination.
Sarah Warbelow, legal director for the Human Rights Campaign, said conservatives are using the Obergefell decision as a pretext to enact laws that they have long wanted on the books but didn’t have the political capital to implement.
“I think that there are individuals who have long wanted this to be true across the board, and they’re using the marriage-equality decision to gin up support in a moment when people are sort of contemplating how the world has changed for LGBT people,” Mr. Warbelow said.
“So I think the fierceness and the fury that we’re seeing in some of these bills is an attempt to enshrine discrimination in a moment when Americans are increasingly supportive of the LGBT community,” she said.
Such laws often result in a tidal wave of opposition from Silicon Valley- and Hollywood-based corporations, breeding resentment from states that believe business interests are usurping the democratic process.
Pressure from the business community has recently influenced two Republican governors of conservative states, South Dakota Gov. Dennis Daugaard and Georgia Gov. Nathan Deal, to veto legislation that the gay rights movement said was discriminatory.
Although North Carolina has maintained its ban on the use of public facilities intended for the opposite sex, more than 130 CEOs signed a letter urging Gov. Pat McCrory, a Republican, to repeal the legislation. Corporations such as PayPal and Deutsche Bank have canceled expansions into the state that would have created hundreds of jobs.
Such an outcome doesn’t surprise Clark Forsythe, acting president of Americans United for Life, who said the Supreme Court is uniquely unfit to legislate untethered from the text of the Constitution because it by design lacks democratic legitimacy.
“When the court takes issues out of the political process, out of the democratic process, when there isn’t a clear constitutional basis for doing so — a basis that’s found in the text, structure or history of the Constitution — then the court creates unprecedented constitutional rights and tends to make them broad and abstract and not subject to deliberations in the democratic process,” Mr. Forsythe said.
He said the democratic process gives people an outlet through which they can express political disagreements, which “tends to mollify and ease divisions.” But when the court reframes these issues as legal fights over rights, the “interpretation tends to be extreme.”
Mr. Eastman said the debate over marriage, like the abortion decision, is not going away anytime soon.
“I do believe this is going to remain contentious, particularly because the other side, emboldened by their victory in Obergefell, is now pushing the envelope to places where very few people want to go, which is transgender bathrooms and men in girl’s showers and all of these things that are now happening,” he said.
Obergefell may not be the last case on the matter for the Supreme Court.
“By taking on an issue that they’ve got no constitutional title to take on, they’ve obligated themselves to stay involved and become the perpetual overseer of this political controversy,” Mr. Eastman said. “It’s an unseemly role for the court, an illegitimate and unconstitutional one. They’ve brought it on themselves, and I think the very legitimacy of the court and the rule of law is going to be one of the collateral harms from their illicit involvement here.”
Indeed, Ms. Warbelow said many of these state laws may be unconstitutional given the precedent set in Obergefell.
“We think the Mississippi bill in particular [is unconstitutional] because it engages in impermissible viewpoint discrimination — that is to say, it privileges certain views about marriage and gender identity over others.”