Alito shares this anxiety. “Today’s decision … will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” he writes. In particular, he objects to the comparison between bans on same-sex marriage and the bans on interracial marriage that were widespread before the Court overturned them in 1967 in Loving v. Virginia. “The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent,” he argues.
On Friday, same-sex marriage supporters outside of the Supreme Court were giddy with delight—advocates have been working toward this moment for literally decades. There was also somewhat giddy dissent: Bobby Jindal, Louisiana’s governor and a GOP presidential candidate, suggested that the Court should be abolished. Pike Couty, Alabama, has decided to stop issuing marriage licenses altogether. But as Alito, Roberts, Scalia, and Thomas point out, this decision will almost certainly kick off a series of legal challenges related to religious liberty. The justices focus on three issues in particular, some of which have already created legal and political tussles: gay adoption; the tax-exempt status of religious organizations that wish to discriminate on the basis of sexual orientation; and the obligation of private churches and individuals to recognize and perform same-sex marriages.
As The New York Times wrote earlier this month, this decision means that “gay couples [will] for the first time be able to widely adopt children regardless of which state they live in.” Same-sex partners have long struggled to secure adoption rights, particularly in states that place limitations on the kinds of couples that can adopt. Mississippi, for example, has a law expressly forbidding adoption by couples of the same gender; Nebraska restricts same-sex couples from being foster parents. These laws may face challenges in light of the Court’s decision, but another kind of law may become more common: Earlier in June, Michigan passed a law allowing adoption agencies—even those that are publicly funded—to refuse to place children with same-sex couples if they have religious objections to doing so. It’s unclear how this religious-liberty claim might be interpreted in light of Obergefell; this is one of the “hard questions” that will be raised by the Court’s decision, Roberts writes, and “there is little doubt that these and similar questions will soon be before this Court.”
The other example Roberts specifically calls out is the tax status of religious organizations that wish to discriminate on the basis of sexual orientation. This was a question that came up during oral arguments for Obergefell: Alito raised a 1983 case involving the evangelical Christian Bob Jones University, which had refused to allow interracial dating on its campus. The Court ruled that the school could not be tax exempt if it maintained its ban; the university accepted the consequences, not changing its policy until 2000. The question, now, is what will happen to the many, many religious organizations that don’t support homosexuality, let alone gay marriage. This involves everything from stated policies—“for example, [when] a religious college provides married student housing only to opposite-sex married couples,” Roberts writes—to issues of employment and benefits for employees in gay unions.