A lesbian lawyer explains where we now stand after the marriage equality ruling.
The historic June 26, 2015 decision on marriage equality has given the LGBT community and our country a new civil right, placing it firmly alongside Brown v. Board of Education and Loving v. Virginia. However, history has shown that even the most important decisions can still create challenges when people attempt to exercise their newfound rights. Unfortunately, equality does not mean acceptance and the reality is that the SCOTUS ruling will likely only produce new conflicts and intensify old ones. The most important new conflict will be in deciding where our Fourteenth Amendment right to marriage granted to us in the Constitution begins and where people like Ted Cruz and Rick Santorum’s First Amendment right to religious liberties end? In other words, how do we balance the two in a way that advances the freedoms this country was founded on: life, liberty and the pursuit of happiness? Unfortunately for us, the religious right isn’t actually working to find that balance. Instead, they will use this as their crux to continue denying LGBT individuals the rights they’ve been denying us all along.
The minute the decision came down, states like Mississippi, Texas and Alabama refused to issue marriage licenses and other states are introducing laws that allow clerks to refuse to sign or issue a marriage license based religious objections. For instance, in Louisiana Gov. Bobby Jindal (R), a possible 2016 Presidential contender, plans to support his state’s Marriage and Conscience Act. The legislation would be a license to the private sector to refuse, for religious or moral reasons, to recognize same-sex marriages and provide an “out” for public sector employees to avoid having to sanction gay marriages. While the law tries to ensure that an LGBT couple can proceed through the required steps, it’s possible (and actually likely), that all of the clerks in a particular county could on religious grounds, thereby forcing people to shop from county to county in search of someone willing to sign their marriage license. Moreover, there is no notice provision required and as such, the lack of notice will surely cause public embarrassment when David and John show up to the county clerk and are denied in front of everyone.
To be clear, the majority opinion upholds the First Amendment. The majority states that the First Amendment gives religious groups “proper protection” to “continue to advocate” their beliefs on traditional marriage. But the dissenters, and every religious conservative I’ve spoken to this week, are more skeptical. Inimically, Chief Justice Roberts goes so far as to state that “people of faith can take no comfort” in the ruling despite the clear language in Justice Kennedy’s opinion. He states, “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises . . . and neither they nor their beliefs are disparaged here.” He goes on further to opine that, “[i]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” His statements on respecting religious freedoms seem pretty straight-forward (no pun intended!) to me but somehow Chief Justice Roberts found a way to read into what’s not there – the word “exercise”. He argues in his dissent, that the decision “creates serious questions about religious liberty” and while “[t]he majority graciously suggests that religious believers may continue to ‘advocate’ their views of marriage, the First Amendment guarantee’s the freedom to ‘exercise’ religion and ominously, that is not a word the majority uses.”
Fundamentally, Roberts is arguing that Obergefell vs. Hodgeshas somehow curtailed the First Amendment and his, along with the other 3 dissents, have created a firestorm among the conservative right and in my opinion, will breathe new life into all of the Religious Freedom Restoration Act cases we saw back in April. Amid the “bakery”, “pizza” and “wedding gown” cases where LGBT individuals were denied services and/or products for their weddings based on private business owners’ religious beliefs, more than 100 anti-LGBT bills were introduced in 29 state legislatures – all based in religious freedoms.In addition to bills allowing business owners to deny services, bills were passed or introduced in several states condoning discrimination against LGBT prospective adoptive and foster parents.
What makes religious freedom laws difficult to fight against in a court of law is that they are intentionally vague. Critics say that in recent years, politicians have championed Religious Freedom Restoration Acts (RFA’s) precisely for their ambiguity, not in spite of it. RFRAs allow legislators to affect issues from a safe distance. The law instructs judges to take religious rights more seriously, but doesn’t tell them how to rule. Anti-LGBT advocates can hide behind a RFRA screaming at the top of their lungs that they are not discriminating, we’re just restoring religion’s place in society.
Many people ask me how the conservative right can undo or dull the effects of Obergefell vs. Hodges. The recent Hobby Lobby decision may be the legal precedent that anti-LGBT rely on. In Hobby Lobby the Supreme Court was asked to strike a balance between a women’s right to obtain contraception from an employers’ health care plan and the company’s religious freedoms. In doing so, with an opinion penned by Justice Samuel Alito, the Supreme Court ruled that “closely held corporations” can decline to provide coverage for birth control in the health care plans they offer to their female employees if the coverage would violate the owners’ religious beliefs. When the decision came down, a firestorm erupted between religious groups and gay rights advocates and within days, President Obama received a letter signed by more than 100 religious leaders asking him to “respect this vital element of religious freedom” by exempting religiously affiliated groups from adhering to the LGBT antidiscrimination protections contained in his Executive Orderprohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
In Roberts’ conclusion he states, “[i]f you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
The next presidential election will be the first step in either direction as it is likely that the next president will appoint several Supreme Court justices. Chief Justice Roberts is the youngest of all of the justices and therefore he will be with us for the long haul. If the Court is filled with Roberts and Scalia-esque appointees, not only will future litigation be decided against LGBT rights but over time, Obergefell vs. Hodges’ holdingwill be chipped away at in a similar fashion as Roe v. Wade. If Roberts’ conclusion is any indication of what’s imminent – the fight for our rights in the face of people’s religious freedoms will be the next wave of litigation and I implore the entire LGBT community to not become complacent at this very important juncture; especially the young LGBT generation that have grown up in a predominantly safe and accepting world. Bigotry disguised as religious liberty is still bigotry and the fight for newly minted constitutional right is about to intensify.