What Can the Right Do After Gay Marriage?

Conservatives feared the Supreme Court’s ruling would impinge upon their religious freedom—and believe they’ve found bittersweet vindication.

Mario Anzuoni / Reuters

If public opinion on same-sex marriage was polarized before the U.S. Supreme Court’s ruling in June, it has split almost entirely in two since.

Take the case of Sweet Cakes by Melissa. It predates the Obergefell decision, but on July 2, Oregon’s labor commissioner issued a final order requiring the Gresham bakery’s owners to pay $135,000 in damages to a lesbian couple for whom they refused to bake a wedding cake. The order also requires Sweet Cakes to “cease and desist” from discriminating against gay couples.

If you get your news from The New York Times or liberal outlets you probably haven’t heard anything about the case this week. But if you’re a reader of conservative media, the story is huge. The Heritage Foundation’s Daily Signal has led the way on coverage. There's been close coverage of the case in The Federalist, Hot Air, Breitbart, Reason, and The Blaze. The Times, however, hasn’t touched it (although it did cover another, similar case in Colorado), and The Washington Post’s only detailed coverage is on its generally libertarian legal blog, The Volokh Conspiracy.

Liberals might be tempted to dismiss this as what Mickey Kaus calls undernews—“stories bubbling up from the blogs and the tabs that don't meet MSM standards.” But it seems more like liberals and conservatives are living in different worlds. On the left and in the mainstream media, the conversation about the ruling is focused on federalism, its economic repercussions, or its sociological impact—all largely about how this affects LGBT Americans.

To many conservatives, however, the Sweet Cakes case seems to vindicate their worst fears about the world after a gay-marriage decision. Not only is same-sex marriage now the law of the land, but they worry that they can’t insulate their personal lives from the ruling in the ways they’d hoped. The Colorado case buttresses that sense. In 2012, Jack Phillips of Lakewood refused to make a cake with a rainbow flag for a gay couple; they sued him. The plaintiffs won a decision from the Colorado Civil Rights Commission, and a state appeals court heard Phillips’s appeal on Tuesday. If the Colorado case represents the worst fears of conservatives, the Sweet Cakes case drives them home, because the bakers charge that the cease-and-desist order violates their First Amendment right to free speech. (The bakers aren’t blocked from continuing to state their opposition to gay marriage, but they are blocked from saying they won’t offer service to gay couples.)

Many social conservatives have long since recognized—if not made peace with—the growing acceptance of marriage equality, which is why they’ve moved their focus to finding ways to sidestep it in their own lives, most prominently through the string of religious-freedom laws and rules that were proposed or enacted in the months leading up to the Supreme Court decision. Indiana and Arkansas backtracked; Louisiana notably stuck to it. During that debate, some analysts accused conservatives of overplaying the dangers of legally mandated equality. After the Oregon ruling, those conservatives are feeling bittersweet vindication: Oh, it was crazy to imagine that they’d come for the bakers and florists, huh?

They also worry that the next step will be trying to force churches to end any LGBT discrimination. Conservative writer Ben Domenech sees the left, emboldened by the Obergefell decision, overreaching and trying to erase the barrier between church and state. It’s a strange shift to see the right accusing the left of failing to respect the church-state division, an accusation usually leveled in the opposite direction. There may not be a vast left-wing conspiracy—in fact, liberal groups insist they have no such intentions—but one can see why a conservative might be uneasy about some developments. For example, the American Civil Liberties Union, which supported the federal Religious Freedom Restoration Act when it was enacted in the 1990s, now says it cannot, because the law “is now often used as a sword to discriminate against women, gay and transgender people and others.”

This sense of fear helps explain Kansas Governor Sam Brownback’s order, issued Tuesday, which says that members of clergy can’t be penalized by the state for refusing to participate in or support same-sex marriages. Religious groups insist the order provides necessary protection, while LGBT advocates worry that it is actually intended to allow adoption agencies operated by religious groups to discriminate against gay couples.

Even as conservatives worry that the Supreme Court has gone too far, though, progressives are worried that its ruling has not gone nearly far enough. LGBT activists have already picked their next battle: nondiscrimination protections in other walks of life. The Supreme Court decision covers only marriage, and polls have shown that many Americans mistakenly believe that workplace protections are already in place. As The Wall Street Journal reports, that effort is proceeding more slowly on Capitol Hill than the advocates had hoped. Yet the proposal underscores the widening gap between conservatives and liberals, not just in the policies that they favor, but in how they understand them to be playing out on the ground.