After Same-Sex Marriage, Then What?

On discrimination and religious-liberty claims, the battle for equal rights is far from over.

Next week, the Supreme Court will hand down its ruling in Obergefell v. Hodges. While the Court has several options at its disposal, it is widely expected to hand down a broad rather than narrow ruling—one that would make same-sex marriage legal in all 50 states. A poll released last week by PRRI, of which I am the CEO, found that nearly two-thirds of the country, including 58 percent of Republicans and 71 percent of Democrats, say that they expect the Supreme Court will do just that. And even if the pending court decision doesn’t resolve it, a recent Pew poll found that more than seven in ten say that the legalization of same-sex marriage nationwide is inevitable.

In 2015, nearly all public polls have shown solid majority support for same-sex marriage, between 55 percent and 61 percent. Today’s support is the result of broad shifts in opinion that have occurred across the country’s different regions, religious groups, and other demographic groups.

The data suggests that the public is on solid empirical ground in its judgment that the legalization of same-sex marriage is inevitable. The chart below, which plots a single data point per age for Americans between the ages of 18 and 90, demonstrates that there is a linear relationship between age and support for same-sex marriage. For example, 73 percent of 20-year-olds support same-sex marriage, twice the number (36 percent) of 80-year-olds who support it.


Even groups that have traditionally held conservative views on same-sex marriage have, on the whole, not successfully convinced their younger members to hold the line in opposing it. The chart below illustrates these large generation gaps. In six of eight of these conservative groups, majorities of the youngest members support same-sex marriage. Most notably, only 23 percent of Republican seniors support same-sex marriage, compared to 53 percent of Republican young adults. Among Southerners, support for same-sex marriage among young adults is nearly twice the support among seniors (63 percent versus 32 percent). White evangelical Protestants and Mormons are the only two groups in which majorities of younger members do not support same-sex marriage. But even among these most conservative groups, the generation gaps are yawning. And it is striking that among young white evangelical Protestants, opposition falls short of a majority.


Whether or not the Supreme Court deals the final blow to the culture war over same-sex marriage next week, public opinion trends indicate—and the public overall perceives—that the days of the decades-long debate over this issue are numbered. In light of that reality, both supporters and opponents of gay rights are already asking, “Then what?”

The most immediate outcome will be a fight over reconciling the new legal status for LGBT couples with the nation’s patchwork of nondiscrimination laws. According to data compiled by the Human Rights Campaign, only 19 states prohibit discrimination in the workplace based on sexual orientation and gender identity. An additional three states prohibit discrimination based on sexual orientation but not gender identity, while ten states provide protections only for LGBT people who are public employees. 18 states have no laws prohibiting workplace discrimination against LGBT people. Laws prohibiting discrimination in housing and public accommodations are even spottier.

So, in the wake of the anticipated Supreme Court ruling, many more LGBT Americans could find themselves in a strange, precarious place. Eighteen states would be forced to recognize the legality of their marriage while providing no protections against discrimination in the workplace, housing, or public accommodations. In these states, a gay employee could be congratulated by a coworker for his upcoming nuptials and the next day find a pink slip on his desk. Legally married gay couples could find themselves denied equal rights to housing or a vacation rental.

It is notable that these nondiscrimination laws don’t exist in more states, as they are far more popular than support for legalizing same-sex marriage. Today, nearly seven in ten (69 percent) Americans favor laws that would protect LGBT individuals against discrimination in jobs, public accommodations, and housing, compared to 25 percent who oppose such policies. And there is majority support for these protections across partisan and religious lines. In fact, most Americans actually already believe that workplace nondiscrimination is the law of the land: Three-quarters (75 percent) of Americans incorrectly believe it is currently illegal under federal law to fire or refuse to hire someone because they are gay, lesbian, bisexual, or transgender.

With this kind of support, passing broad nondiscrimination laws would seem to be a political layup. But such laws have been strongly opposed by Republican leadership and religious conservatives at the federal, state, and local level. In 2007, the federal Employment Nondiscrimination Act (ENDA) died in the Senate under threat of a Bush veto, and in 2014, despite bipartisan passage in the Senate, Speaker of the House John Boehner refused to bring the bill up for a vote.

Until very recently, gay-rights opponents’ strategy was a direct frontal assault, justified by asserting, as Boehner did last year, that ENDA would “increase frivolous litigation and cost American jobs.” But with data from the Government Accountability Office showing that states with employment protections for LGBT people have experienced relatively few complaints, and with direct opposition more difficult to maintain each year in light of growing support, opponents launched a new tactic based on an old principle: religious liberty.

These new appeals to religious liberty that have erupted over the last few years are signs of the looming end of the culture war over gay rights. As conservative New York Times columnist Ross Douthat insightfully put it over a year ago, the religious-liberty fights are essentially “a way for religious conservatives to negotiate surrender.”

But everything hinges on the scope of religious-liberty claims. The First Amendment already clearly protects the rights of clergy and congregations to follow their own consciences within the realm of their own churches. As it stands, pastors are free to refuse to perform wedding ceremonies for anyone based on their own beliefs and congregational guidelines, and not even the most sweeping Supreme Court ruling this week would conceivably undermine that freedom. No one on either side is arguing about those religious-liberty claims.

The rub comes when conservatives want to extend their religious-liberty claims outward—to carve out an exemption to a broadly applicable law for themselves, one which would allow them the right to refuse to sell products or services to potential customers or clients who are gay. Recent polling suggests that most Americans are unwilling to concede surrender with these conditions. By a margin of nearly two to one, Americans oppose allowing a small business owner to refuse products or services to gay and lesbian people, even if doing so violates their religious beliefs (60 percent oppose, 34 percent favor). Most religious groups oppose these exemptions; white evangelical Protestants are the only religious group with majority support for these exemptions, and even among this group, support is only a bare majority (51 percent).


On the issue of allowing gay and lesbian couples to marry, the court of public opinion has rendered a verdict, and it is likely that the Supreme Court will concur. On the question of nondiscrimination protections, public support is overwhelming but the remaining skirmishes will be fought over the appropriate scope of religious-liberty claims. Douthat argued that by granting broad exemptions, the winning side could allow religious conservatives to surrender with some dignity intact. But in order for the proposed terms of surrender to be acceptable to the victors, they cannot be integral to the principle that was itself the object of the war. If there is a clear defeat, the terms of surrender must actually entail capitulation and not amount to an attempt to carry on the fight by other means or in other theatres.

The preponderance of data on gay rights today suggests that most Americans do not just support specific policies about same-sex marriage or nondiscrimination; they have embraced underlying values of full equal treatment under the law and equal access to opportunities. And if that is the great principle that has been decided by the decades-long culture war, the terms of surrender will need to be consistent with it.