All of a sudden, conservatives were never really against gay marriage to begin with. They just wanted to achieve it through the democratic process. “Many people will rejoice at this decision, and I begrudge none of their celebration,” wrote Chief Justice John Roberts in his dissent, implying that he thinks gay marriage is a delightful thing. On Fox News, The Weekly Standard’s Stephen Hayes endorsed gay marriage but called the Court’s decision “the wrong way to do the right thing.”
Forgive my cynicism, but I don’t buy it. First, the conservatives who say they want same-sex marriage but only through the democratic process don’t acknowledge just how devastating that principle would be to millions of LGBT Americans who want to marry the person they love. After all, if it’s wrong for the Supreme Court to require same-sex marriage, then it’s just as wrong for lower courts to do so. But of the 37 states that had legalized gay marriage on the eve of the Court’s decision, 26 had done so via lower courts.* Only 11 states had legalized it through the legislative process or by popular referendum. That means that, in Roberts and Hayes’ ideal world, gay and lesbian Americans in 39 states would still lack marriage rights. Thirty-one of those states, as Charles Lane noted on the Fox panel with Hayes, have passed constitutional amendments banning same-sex marriage. Undoing those amendments democratically, especially in states like Utah, Alabama, and Mississippi, would have taken a long time—Hayes himself estimated 15 to 20 years. If you’re fine telling millions of gay Americans to wait that long, you don’t really consider same-sex marriage that important.