Nearly every state that has passed same-sex marriage legislation has made exceptions claiming that no pastor will be required to perform same-sex marriages. But as Robert George has pointed out, the protections are thin indeed. Tax exemption will be challenged, and so will accreditation for Christian colleges and schools that hold to traditional views of marriage. Once opposition to same-sex marriage is judged discriminatory, no institution that opposes it will be unaffected.

Sudden as it seems to some, the Supreme Court’s endorsement of gay marriage in Windsor was a long time in coming. In cultural terms, of course, it is the fruit of fifty years of sexual liberation with all its attendant institutional, technological, and psychological shifts.

In terms of Constitutional interpretation, the foundations were laid decades ago in decisions that discovered and developed a Constitutional right to privacy. According to Duke’s H. Jefferson Powell (The Moral Tradition of American Constitutionalism: A Theological Interpretation ), the key decision was not Roe but Eisenstadt (1972), which revived a new version of substantive due process. During the nineteenth century, substantive due process arguments had been used in cases involving state regulation of business. That notion of substantive due process was eclipsed by what Powell describes as the “Modern Theory,” under which the Court’s aim was to protect decisions arrived at through democratic processes. In Eisenstadt, the court revived substantive due process, applied now to state restrictions on the distribution of contraceptives.

Justice William Brennan argued in the decision that the “right to privacy” must mean “the right of the individual, married or single, to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Powell calls this “an intellectual milestone” since the Court rejected the statute “solely because the Court believed the state’s moral choice was an unreasonable intrusion into individual matters the Court considered ‘fundamental.’” It was a return, Powell says, to the jurisprudence of the common law, which regularly issued “substantive judgment about moral-political matters.”

In the light of Eisenstadt, one has to conclude that the Court’s DOMA decision was not only virtually inevitable but also, given the current state of Constitutional interpretation, correct.

Brennan’s argument adapts perfectly to Windsor: The right to privacy must include the right of an individual “to be free from unwanted governmental intrusion into matters so fundamentally affecting a person as sexual orientation and the desire to marry.”

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