What Obergefell said to religious believers, and what it left open

A court can settle a question without settling the argument. Obergefell v. Hodges settled one question: whether states must license and recognize marriages between two people of the same sex. It did not, and could not, settle the question that followed it, which is how a free country lets people with deeply different views of marriage live under the same laws.

This post is an explainer. I'm going to read what the Court actually said to religious believers, set it beside the objections the dissenters raised, follow what happened in the years afterward, and ask what a respectful, constitutional answer looks like. I will write it with respect for gay Americans, who are our neighbors and fellow citizens, and for religious Americans, who are the same. The two groups are not opposing teams. They overlap, share families and live on the same streets.

What the Court decided

On June 26, 2015, the Supreme Court decided Obergefell v. Hodges by a vote of 5 to 4. Justice Anthony Kennedy wrote the opinion. The Court held that the Fourteenth Amendment, through its Due Process and Equal Protection Clauses, requires every state to license a marriage between two people of the same sex and to recognize one lawfully performed in another state.

Whatever you think of the result, and conservatives disagreed with it on the merits and many still do, the legal situation is clear. The decision is the law of the land, and it has been for a decade. The argument that remains is about the edges.

Chief Justice Roberts, in dissent, argued that the question belonged to the people and their legislatures and not to five justices. That is a separation-of-powers argument about how the question was decided, not a verdict on the people affected by the decision, and it is a fair one. But the decision stands, and the practical question is what it protects and what it leaves open.

The paragraph addressed to believers

Kennedy's opinion included one passage that speaks directly to religious people. Its sense is this: the First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. Earlier in the opinion he had said that many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and that neither they nor their beliefs are disparaged here.

Read that carefully, because it is the whole of the Court's assurance. It says three things.

1. The religious objectors' premises are decent and honorable. The Court did not call them bigots. That matters, because it is the opposite of what some commentators have said since.
2. The First Amendment protects religious organizations and persons. Both are named.
3. The protected activity is to "teach" and to "advocate." The passage uses the verbs of speech and instruction. It says nothing in so many words about acting.

That third point is the one that made the dissenters nervous, and it is where the next decade's litigation began.

The dissenters' warning: "advocate" versus "exercise"

Chief Justice Roberts said it most pointedly. The majority, he wrote, graciously suggests that religious believers may continue to "advocate" and "teach" their views of marriage. But the First Amendment guarantees the freedom to "exercise" religion, and, as he put it, that is not a word the majority uses. He then asked the questions that people of faith would face: hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right, and he gave examples: a religious college that limits married student housing to opposite-sex couples, or a religious adoption agency that declines to place children with same-sex couples. He also noted that the Solicitor General had acknowledged that the tax exemptions of some religious institutions would be in question.

Justice Alito, in a separate dissent, warned that the decision would be used to vilify Americans who are unwilling to assent to the new orthodoxy, and that those who disagree would risk being labeled as bigots in public life. Justice Thomas, in another dissent, wrote that religious liberty is about freedom of action in matters of religion generally, called the majority's treatment of it a weak gesture, and warned of potentially ruinous consequences for religious liberty.

Here is the distinction at the heart of the matter. Speech is what you say. Exercise is what you do: how a church conducts its ceremonies, who a religious school hires, whether a believer who runs a business takes part in an event that violates his faith. The First Amendment protects both. The majority's paragraph named only one, and the dissenters, fairly, noticed.

The oral-argument exchange

On April 28, 2015, during the oral argument, Justice Alito asked the Solicitor General, Donald Verrilli, a question that has been quoted ever since. He had in mind the 1983 case, Bob Jones University v. United States, in which the Court upheld the denial of a tax exemption to a school that forbade interracial dating (that case is the subject of Bob Jones University, the IRS and the question it left every church). He asked whether, if the Court recognized a right to same-sex marriage, a religious school that opposed it could lose its tax-exempt status in the same way.

Verrilli, speaking for the United States, said he could not answer that without knowing more of the specifics, but acknowledged that it was certainly going to be an issue. That candid answer was not a promise to revoke anyone's exemption, and it should not be treated as one. The administration did not move against religious schools' exemptions. But the exchange is why the tax question has stayed in the conversation: the government's own lawyer conceded the issue was real.

The decade after: what was tested

The ten years after Obergefell generated a steady stream of disputes. They fall into groups, and the groups have different answers.

Houses of worship and clergy. Churches, synagogues and mosques decide which marriages they will solemnize. This has been the least contested protection, and it follows from the church-autonomy doctrine in cases like Hosanna-Tabor (2012), a unanimous decision holding that the First Amendment bars employment-discrimination suits by ministers against their churches.

Religious social-service providers. Some foster and adoption agencies that held to a traditional view of marriage found their contracts or licenses threatened by state and city rules. The leading case, Fulton v. City of Philadelphia (2021), ended in a unanimous judgment for Catholic Social Services, though on narrow grounds: the city's policy allowed exceptions, so it could not refuse one to a religious agency.

Wedding vendors. A baker, a florist, a photographer, a website designer. Here the question is whether a business owner who serves everyone may decline to create a particular custom expression for a particular ceremony. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court ruled 7 to 2 for the baker, but on the narrow ground that the state commission had shown hostility to his religion. It left the big question open. The question came back.

Tax exemption and accreditation. The fear in the Alito exchange has not materialized into a national rule, but state-level disputes over school accreditation, licensing and funding continue.

303 Creative v. Elenis, briefly

In 2023 the Court answered part of the question that Masterpiece left open. In 303 Creative LLC v. Elenis, decided 6 to 3, with Justice Gorsuch writing, the Court held that Colorado could not compel a website designer, Lorie Smith, to create custom websites celebrating a marriage that violated her beliefs. The decision rested on the Free Speech Clause, not on free exercise. The parties agreed that her website designs were expressive, and the Court said Colorado could not force her to speak a message she did not believe.

Note the shape of the holding. It is narrow. It protects expressive work that a person creates, not the sale of ordinary goods and services, and it does not, by its terms, let a business turn customers away because of who they are. For more, read 303 Creative Was About Compelled Speech, Not a License to Refuse Customers.

The Respect for Marriage Act of 2022

In December of 2022 Congress did something unusual: it legislated on both sides of the question at once. The Respect for Marriage Act, signed by President Biden on December 13, 2022, did two principal things. It repealed the 1996 Defense of Marriage Act and required the federal government to recognize marriages valid where performed, and it required states to recognize marriages from other states. And it included provisions meant to protect religious institutions: nonprofit religious organizations, including churches, are not required to provide facilities, goods or services for the solemnization or celebration of a marriage, a refusal creates no civil claim, and another section says the Act does not affect benefits and statuses that do not arise from marriage, such as tax-exempt status and tax treatment.

The bill passed with bipartisan support in both chambers, with 12 Republican senators and 39 Republican House members voting for the final version. It was a legislative compromise, and it is a model of how these questions ought to be answered: by an elected Congress, in statutory text, rather than by a court in a footnote.

I want to be fair about the limits. The Act's religious-liberty language is narrower than what many religious-freedom advocates sought. It protects nonprofit religious organizations. Its exemption speaks of nonprofit religious organizations, not individuals or for-profit businesses, and it does not cover every dispute. But it is a statutory floor. It speaks, in statutory text, to the fear about tax exemption that the oral argument raised.

The steelman: why the other side worries

Fairness requires stating the other side's concern at its best, because it is not trivial.

A gay couple that has just been married wants what any other couple wants: to be treated as ordinary citizens in public life, to buy a cake or hire a photographer or rent a hall without being told they are not welcome. The history of discrimination against gay Americans is real, including criminal laws that were on the books within living memory. Many gay Americans fear that exemptions for religious objectors will become a general license to refuse service, and that the exemptions will be stretched beyond their stated purpose. That fear is not paranoid. It reflects what happened with other groups when public accommodation was a matter of local discretion.

I'd answer in four points.

1. Most of the protections at issue are narrow. Churches choosing their ministers and marrying whom they choose, schools teaching their doctrine, and artists declining to create a message are not a general license to refuse everyone. 303 Creative turned on the agreed fact that the designer's websites were expressive work, and on her objection to the message, not to the customer.
2. Liberty for religious people is not a threat to equality. The Constitution protects the equal citizenship of gay Americans and the free exercise of religion. They sometimes collide at the edges, and the law's job is to draw the line at each collision, case by case, with both interests in view. Neither side gets the whole field.
3. Neutral principles protect everybody. The same free-speech doctrine that protected Lorie Smith has protected gay-rights groups, unpopular protesters and religious minorities. A rule that lets government compel speech is a rule that will be used against whoever is out of favor.
4. Compromise by legislation is better than victory by litigation. The Respect for Marriage Act is one example. State laws that pair non-discrimination protections with religious exemptions are another. Those are harder to write and last longer.

What a conservative should take from it

Here is what I think. A conservative committed to limited government and to religious liberty should hold three commitments at once.

First, accept the law as it is and argue for changes through the lawful means. That is what the dissenters in Obergefell themselves called for.

Second, insist on the exercise of religion, not only on speech about religion. The promise of the Free Exercise Clause is about conduct. A faith that may be spoken in a pulpit but not lived in a life is a hobby.

Third, treat the people on the other side of the argument as fellow citizens who are acting on their own sincere convictions, as the Court itself said of religious believers. Courtesy is not a concession. It is the thing that keeps a plural society from tearing itself apart.

For the legal framework, read What a state RFRA does and does not do, in twelve plain questions, Employment Division v. Smith and the Scalia rule that still splits conservatives, and 'Religious liberty is a license to discriminate,' answered with the law. The text of the Fourteenth Amendment is in the Constitution, and the Court's recent record is on the Courts page.

The case in brief

1. Obergefell (2015) held 5 to 4 that states must license and recognize same-sex marriages, and Justice Kennedy's opinion said religious organizations and persons may teach their view of marriage.
2. The Roberts and Alito dissents warned that "advocate" and "teach" are not the same as "exercise," and the oral-argument exchange on tax exemption showed the issue was real.
3. Courts have since protected clergy and churches, narrowed state action against religious agencies in Fulton, and in 303 Creative barred compelling a designer's expressive speech.
4. The Respect for Marriage Act of 2022 added statutory protection for nonprofit religious organizations and says it does not affect their tax-exempt status.
5. The right path is lawful argument, protection of the exercise of religion and not just speech, and respect for neighbors on both sides.

What you can do: read the religious-liberty section of the Respect for Marriage Act on Congress.gov and ask your state legislators how your state protects both equal treatment and religious exercise.