The Gay Marriage Fight Isn’t Over

Beware the red state backlash against today’s historic ruling.

Justice Anthony Kennedy, as the crucial fifth vote in favor of a constitutional right to marry for gay and lesbian couples, has just cemented his
legacy as the Thurgood Marshall of the LGBT movement, reports politico.  In an opinion of astonishing breadth and rhetorical eloquence, he led the Supreme Court through a decision rich in its description of the importance of marriage to the dignity and equality of all couples—and their families.


“It is now clear that the challenged laws burden the liberty of same-sex couples, and…they abridge central precepts of equality,” he wrote. No laws thus described could possibly stand. But the Supreme Court’s historic decision in Obergefell v. Hodges can’t mask this reality: In many states, gay and lesbian couples will have great difficulty exercising their newfound marriage rights. In some ways, this new chapter of the gay marriage fight will likely mirror abortion rights in the wake of Roe v. Wade—a right technically legal but frustratingly difficult to exercise in many corners of the country.

It’s too simple to see this decision as bringing down the curtain on the national debate over marriage equality, especially since almost two-thirds of Americans now feel that same-sex couples should have a constitutional right to marry. The debate is indeed now largely over in blue states. But today’s decision will supply a hefty dose of oxygen to efforts already underway in red state legislatures to continue to deny marriage rights to gay couples.


This won’t be a full-on “Jim Crow Redux.” For one thing, the long struggle to defeat segregation and disenfranchisement laws itself led the Supreme Court to develop a robust doctrine of equality. The LGBT rights movement has benefited from that legacy, and the Court can be expected to continue using it to police efforts to compromise marriage equality. But make no mistake: In certain corners of the country, it’s only going to get tougher for gay and lesbian couples to exercise their now-legal right to wed. And the motivation of lawmakers is the same—to take away constitutional rights.

ALSO READ: Supreme Court Orders States to Recognize Same-Sex Marriage

North Carolina laid down an early marker with the recent enactment—over Governor Pat McCrory’s veto—of a law that allows public employees to refuse to participate in the steps needed to make a same-sex marriage valid. In sweeping language, the law allows the clerks who issue the licenses and the magistrates who perform the marriages to opt out performing their duties “based upon any sincerely held religious exemption.” The law isn’t limited to same-sex weddings—a racist magistrate could also refuse to perform an interracial or interfaith wedding—but it’s abundantly clear that same-sex unions were the motivation for this ill-considered measure.

The North Carolina law makes clear that someone has to issue a marriage license to a same-sex couple, but there’s no provision requiring the refusenik to state any religious objection beforehand. This lack of notice is sure to lead to some couples suffering public embarrassment upon having a clerk turn and walk away rather than processing their license application. And even though the law tries to ensure that the couple can proceed through the required steps, it’s possible that all the magistrates in a particular county could refuse to perform a wedding, thereby touching off a scramble to find a magistrate from another county willing to do so.

How can such a law be permissible? Don’t public officials have a duty to carry out their jobs? Usually, yes. And this law might well be unconstitutional, as it burdens what the Court has just found to be same-sex couples’ fundamental right to marry. But establishing the law’s unconstitutionality will take time and money. Meanwhile, other conservative states can be expected to follow suit, or take even more radical steps, in short order. After all, North Carolina—which, remember, cast its electoral votes for Obama in 2008—is hardly the most conservative state.

Here’s an example: the Alabama Senate recently passed a bill that would express the lawmakers’ disdain for same-sex marriages by getting the state out of the marriage licensing business entirely. Although the measure stalled in the House, Obergefell could reignite efforts to move it forward. The law would replace licenses with private contracts that would then be filed with the state—a rash move that would destabilize all gay and straight marriages within the state (since contracts can be varied) and create enormous problems for interstate recognition of marriages.
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Other laws don’t as directly block access to marriage for gay and lesbian couples, but are designed to make life harder for same-sex couples. The blowback against Indiana’s religious freedom law—which would have allowed businesses to refuse to provide wedding-related services to same-sex couples—was essentially repealed after public outcry. Soon thereafter, though, Mississippi put a similar law in place, without a specific reference to the right of private businesses to discriminate. But it effectively allows discrimination to happen by stating that no one’s religious freedom can be substantially burdened without a “compelling reason.”

Isn’t the right to marry a “compelling reason”? After today’s decision, yes, but a private business’s decision not to provide services to same-sex couples doesn’t directly affect their right to marry. The couple would be forced to argue more broadly about the right to be free from discrimination. That argument is hard to make in Mississippi—and in a majority of other states—where anti-discrimination laws don’t cover sexual orientation. In many of these states, a similar combination of religious freedom protections and a gap in the anti-discrimination laws will allow religious liberty to trump gay couples’ interests.

For example, Michigan just passed a law that allows adoption agencies to refuse to provide services to any prospective parents if placing a child with those parents would violate the organization’s “sincerely held religious beliefs.” This one isn’t as likely to prove a real barrier to same-sex couples seeking to adopt, because the law also requires a declining agency to refer the prospective parents to another agency, or to the state’s website listing other agencies that will work with the couple.

Yet the law is another important case of marriage equality pushback. It puts the state on the side of anti-gay discrimination, because the agencies refusing gay couples receive state money. It segments the adoption market, by ghettoizing same-sex couples. And it furthers the narrative that gay and lesbian couples lack a necessary ingredient—either a mother or a father—that Obergefell effectively rejects in finding that the marriages of same- and opposite-sex couples are equal.

These and other initiatives are dramatic illustration of the fact that the people and lawmakers in conservative states won’t give up so easily on gay rights. The more interesting question is how widespread and long-lasting the backlash will be.


Source: politico