Ross Douthat is asking for the Supreme Court to just leave the Baker alone. I sympathize. But I don’t think such a thing is possible.
There are a lot of arguments about the fallout of Obergefell, mostly some species of slippery slope involving the quashing of religious liberty. I subscribe to such arguments, but I don’t think they help to understand why Obergefell completely changes the situation.
Prior to the 2015 decision which granted same-sex couples the “fundamental right to marry”, homosexuality, and specifically homosexual acts, were in a nebulous place in American culture. Specifically, the question of its morality was nebulous – akin to, say, vegetarianism. Some may believe it to be a good, some may believe it to be unhealthy, and though the two opinions were contrary, persons could still tolerate the opinion of the other. Yes, it may create a type of self-segregation between the two groups, as one found the other repugnant to some degree, but fundamentally both vegetarians and non-vegetarians could see the other as fellow Americans. They are both acceptable views under the state Common Good of the Republic.
This was the case with opinions on homosexual acts. With the decriminalization of homosexual acts beginning in 1962 and completed by 2003, there began a period in which one portion of the population could believe that homosexual acts were immoral while another portion believed they were licit and even morally virtuous. Prior to this, the second was basically illegal. The two opinions are contrary, but the state had either a) given allowance for toleration of what it deemed immoral (thus decriminalization was practical, akin to medieval decriminalization of prostitution in certain locales) or b) removed itself from the question entirely. The second, libertarian view tends to be how Americans, with their abysmally impoverished and limited view of the state vis-a-vis morality, saw the matter.
Obergefell changed this. In that judicial action, the state came roaring back and made a specific moral claim in the manner (and putting falsity to the libertarian view of things, might I add) – homosexual acts were to be seen as equivalent to heterosexual acts. This was to be solemnized in the universal recognition of same-sex unions as marriage.
One could make an abstruse argument that this has nothing to do with morality, but doing so is facetious and ultimately makes a mockery of any idea of public and culturally binding morals – make that same argument about murder or rape why don’t you?
So with homosexual acts deemed not only licit, but a moral good – something not only tolerated, but instituted solemnly by the state – the matter of the Christian Baker has no possible outcome save demanding he respect this moral good.
But does this not infringe the Christian Baker’s freedom of conscience? Or, gasp, his freedom of religion? Well, when said belief is contrary to the legislated good of the state and society, it is not a freedom and is not protected as such. We all implicitly believe this of acts like religiously motivated murder, rape, terrorism, or theft.
Note well, religious freedom is never more than an edict of non-coercion and toleration. The state promises to not force a man or woman to break their conscience to the extent that a belief or activity is not contrary to the good of the state and intolerable. Put more positively, to the extent that a belief or activity is not contrary to the good of the state or is tolerable within that good (e.g. violent pornography [not my belief, just the state’s]), one is free to hold and pursue it. If it is not tolerable, it is illegal and/or criminal, pure and simple.
For the Christian Baker to deny the cake to the same-sex couple, is to act in a way that is both contrary to the good of the state and intolerable – one cannot tolerate a citizen who denies such a right to another anymore than one may tolerate a citizen barring another from the polls.
Anything less is at best is simply passing the buck to another court, at worst inviting a judicial and constitutional crisis.
Cheerless upshot: We Christians? We’re about to become, if not already are, defacto rebels to the stated “Common Good” of this Republic.