Obergefell won't be overturned, but it's quite clear that there are 'disputes' which still remain (& which at least 2 & possibly 3 justices in a month's time are still willing to hear) with regards to how LGBTQ+ individuals are treated as a protected class when compared to religious beliefs (e.g., Masterpiece Cake).
Nevertheless, for people who claim to believe in a plain reading of the Constitution, it sure seems strange to see them continually trying to tack "except for gay people" onto the 14th Amendment.
I think it's a genuine balancing act, because free exercise and equal protection are both constitutionally enumerated rights. Legal theories on both sides that attempt to establish one as somehow "more enumerated" than the other are specious. The only way to cut that knot is to argue that sexual orientation shouldn't be a protected category for equal protection purposes at all, which is a straightforwardly cruel position at this point.
It's a balancing act, all right, but not quite in the way you think.
You seem to think, Nathan, that decisions like
Obergefell are based on a premise, inferred from the Equal Protection Clause, that gay people can never be treated any worse than gay people. It's as if you are saying that sexual orientation is, in some way, like race, and that discrimination against gays, lesbians, and bisexuals is just as constitutionally unacceptable as discrimination against racial minorities. But Justice Anthony Kennedy, who has written every one of the pro-gay-rights decisions of the Court, has never said anything like that in any of the opinions he has written. Justice Kennedy has never said that sexual orientation is a "suspect classifiction." The legal premise that
Obergefell is based on is that marriage is a "fundamental right." It's true that Kennedy inferred this "fundamental right" from the Equal Protection Clause; he invoked precedents such as
Zablocki v. Redhail, and
Turner v. Safley for the authority to infer that marriage-is-a-fundamental-right premise from the Equal Protection Clause. But the premise that marriage is a fundamental right is a libertarian premise. Your premise, that gay people can never be treated worse than straight people, is an egalitarian premise. Libertarianism and Egalitarianism don't mean the same thing. They often do get mixed up with one another in Supreme Court opinions, though. The Court has inferred "equal protection of the laws" from the Due Process Clause of the Fifth Amendment, and it has inferred a few "fundamental rights" from the Equal Protection Clause.
To claim that marriage is a "fundamental right" protected by any clause of the Constitution, however, is to base the decision on a premise of an "un-enumerated right," like the right to use contraceptives, the right to have an abortion, and the right to engage in sodomy." So this is a balancing test between an enumerated right -- the free exercise of religion -- and an un-enumerated right -- the right to get married. It is not a balancing test between the premise of the Free Exercise of Religion Clause and the premise of the Equal Protection Clause -- as you see it -- that gay people can never be treated worse than straight people.
