In-Depth: Is Marriage Equality in Danger?

As a result first of Justice Gorsuch’s confirmation and, espeically his disingenuous dissent in a recent case from Arkansas regarding birth certificates for children born to same-sex couples, many people in the LBGTQ community are raising concerns about the continuation of marriage equality as the law of the land. (See examples of such commentary here and here.) As with many things in the world of law and policy – especially given the Trump Administration’s track record – the answer isn’t clear.

It is Family Equality Council’s belief that:

  • marriage equality itself, as articulated in the Obgerefell v. Hodges decision is safe as long as the same five justices who voted for it remain on the Court;
  • even if we lose a justice, and he or she is replaced by a justice in the mold of Gorsuch, and Obergefell is overturned (a real risk in that scenario), existing marriages would remain valid;

and yet even if marriage equality is not overturned,

  • it is highly likely that we will continue to see attacks on our marriages, specifically against the rights and benefits that attend to marriage.

As set forth below, a quick look at history and future possibilities make clear that if we truly want to protect the rights we fought so hard to secure, then we  must all get and remain active in the political process.  After all, one thing that is clear is that elections matter.

On June 26, 2015, the U.S. Supreme Court issued its decision in Obergefell v. Hodges, exactly two years after United States v. Windsor, and twelve years after Lawrence v. Texas.  In each case, Justice Anthony Kennedy was the “swing vote” and wrote a 5-4 majority opinion in which he explained that the Fourteenth Amendment extends equal protection and due process to all persons, regardless of sexual orientation, and thus laws which infringe on their fundamental rights, including the right to sexual intimacy and to marriage, are invalid. In May 1996, Justice Kennedy also wrote the majority opinion (6-3) in Romer v. Evans, holding that a Colorado constitutional amendment which prohibited the adoption of laws, regulations or ordinances that would protect persons from discrimination based on sexual orientation, had no rational relation to any legitimate government interest and violated the Equal Protection Clause, declaring that “a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest.”

Looking back, it is hard to imagine that those cases could have been decided differently, and yet a quick look at the history of the Court reminds us just how close we came to never having enjoyed those constitutional rights that we now take almost for granted.  President Reagan first nominated Robert Bork for the seat on the bench that Justice Kennedy ultimately took.  Bork was an “originalist” along the same lines as Antonin Scalia, and among other extreme views, he rejected a constitutional right to privacy, upon which the decision in Lawrence and other cases were later based.  Thankfully, Judge Bork’s nomination was rejected 42-58 by the Senate, which was controlled by Democrats at the time.  Instead, Judge Kennedy, who expressed his belief that the Constitution provided a “zone of liberty” to individuals that the government must respect, was nominated and unanimously confirmed in 1988.

One Justice. That was the difference in Obergefell and the reason we have marriage equality. At present, Justice Kennedy and the four other justices who joined in the majority opinion in Obergefell (Ginsberg, Breyer, Sotomajor, and Kagan) remain on the Court, so there is no imminent threat that the Court will reverse course on marriage equality. This was reinforced by the Court’s recent per curiam decision (one without a specific author) in Pavan v. Smith, in which the Court emphatically declared that, under Obergefell, “a State may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples’.”  The Court explained that, in Obergefell, “we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples.”  Thus, the State of Arkansas could not constitutionally apply its birth registration law (mandating that the “husband” of a woman who has given birth be listed on the child’s birth certificate) only to a male spouse but not a female spouse.  The Court issued this as a summary opinion, without providing the parties an opportunity to argue their cases.  In doing so, the Court made clear that it considered Obergefell and the rights that attend to marriage equality to be settled law.  Indeed, the first sentence in the Pavan ruling stated: “As this Court explained in Obergefell v. Hodges, 576 U. S. ___ (2015), the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’”

While Pavan is encouraging, the dissent written by Justice Gorsuch (recently nominated by President Trump and confirmed by the Senate 54-45, along party lines except for 3 Democrats) is evidence of dark clouds on the horizon.  Just as we predicted, Justice Gorsuch took the first opportunity he had to take a swipe at marriage equality. He,  along with Justices Thomas and Alito, saw nothing wrong with excluding female spouses from birth certificates under a “biology based birth registration regime.” In so doing, the dissent blatantly ignored language in Obergefell which stated clearly: “Indeed, in listing those terms and conditions—the ‘rights, benefits, and responsibilities’ to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified ‘birth and death certificates.’”

Putting aside the obvious point that the statute at issue was marriage based, not biology based (no DNA test or affidavit of biological parentage required), and the Equal Protection problem with treating similarly situated same-sex and different-sex spouses differently, the dissent callously failed to consider the practical effect of excluding one of a child’s two parents from the birth certificate.  While the birth certificate itself does not create legal parentage, it is the only state-conferred evidence of legal parentage (with all of its attendant rights and responsibilities) a parent and child have without getting a court order. The fact that Justices Gorsuch, Thomas and Alito were willing to do this underscores their opposition to marriage equality more broadly. We can be sure that they will vote to overturn marriage equality if presented an opportunity. Moreover, such blatant disregard for clear language in existing Supreme Court precedent, by sitting Supreme Court justices, may tend to invite individual states to attack marriage equality, even at its margins.

One such attack is already pending.  In Pidgeon v. Turner, two “devout Christian” taxpayers challenged the policy of the City of Houston (instituted before Obergefell was decided) to provide the same benefits to city employees who had same-sex spouses as it provides to other married employees.   The case made its way up to the Texas Supreme Court, which ruled in June 2017 that –despite the Supreme Court’s ruling in Pavan – it would not decide the issue because it had not been fully litigated, but would instead remand the case back to the lower court to “fully explor[e] Obergefell’s reach and ramifications.”   It remains to be seen what will happen in the lower courts and whether it will work its way back up on appeal.

Which brings us to Chief Justice John Roberts.  If Justice Kennedy retires soon (or another “liberal” justice leaves the bench), we can be certain that President Trump will nominate another justice of the same “conservative” judicial philosophy as Justice Gorsuch (confirmation with the Senate as it is currently configured would be assured).   That would put Chief Justice Roberts in the center of the Court, making him the only potential “swing vote” on cases involving LGBTQ rights.  Although it is somewhat reassuring that he did not join Justice Gorsuch’s dissent in Pavan, we can never forget that the Chief Justice dissented from the majority opinions in Obergefell and Windsor, revealing himself as a defender of the rights of states and the federal government to recognize only so-called “traditional marriage”.  One can only hope, based on Pavan, that Roberts now will defend Obergefell, as the law of the land, from direct attacks on its holding that state laws are unconstitutional to the extent they treat same-sex married couples differently from opposite-sex married couples. However, that is not a foregone conclusion, and if he did not, then it is entirely possible that marriage equality could be overturned, or the Obergefell decision chipped away at and narrowed over time.

There are, however, some practical grounds for cautious optimism regarding the staying power of Obergefell. First, the majority of Americans support marriage equality. To the extent that judges are aware of and affected by changing public attitudes, it is important to note that a recent Gallup poll shows that support for marriage equality since Obergefell has increased to 64% and is growing. Second, even if the Supreme Court reversed course on marriage equality, there are hundreds of thousands of LGBTQ people, in every state, who are already legally married and would remain so. Indeed, a recent Williams Institute report shows that as of June 2017, nearly 1.1 million LGBT people in the U.S. are married to someone of the same-sex, which means there are more than 547,000 married same-sex couples nationwide. Their report shows that since 2013 (when Windsor was decided), at least 317,000 same-sex couples have married (157,000 since Obergefell). Third, there were at least 19 states plus D.C. that legislatively enacted marriage equality before 2015, or whose state supreme court ruled that depriving same-sex couples the right to marry violated their state constitution and would therefore not be affected by any challenge to Obergefell, so new same-sex marriages would continue to occur, at least in those states.  There are also many foreign countries that perform such marriages. Fourth, the political upheaval, administrative chaos, and never-ending litigation that would be caused by a patchwork of marriage rights across the country and the push and shove to change them – which had already become evident before Obergefell was decided – would reappear, putting the Court at the center of a firestorm for which Chief Justice Roberts may not want to accept responsibility.  Finally, it is difficult to imagine there would be a strong political appetite even by conservative state lawmakers to enact marriage laws that directly attack marriage equality.  As we have seen in many states, proposed legislation that seeks to pare back LGBTQ rights has been met with severe backlash, and there are powerful economic reasons why a state would not want to go down that road by opposing something so important to the LGBTQ community and its allies as marriage equality.  For all these reasons, it is difficult to envision Obergefell  being overturned even if the balance of the Court changes as described above. However, if any additional members of the Obergefell majority leave the Court, and Scalia/Gorsuch-type justices are nominated and confirmed (which we believe would require the Senate to remain in Republican control), then there is far less reason for optimism about preserving marriage equality.

That is not to say that the Court, even as presently configured, will rule in favor of LGBTQ rights in cases involving individual (and even corporate) claims of “religious freedom”, which can be used to discriminate against our community and try to limit the reach of marriage equality. On the contrary, protection of previously unrecognized religious rights by the Court is in the ascendency.  We cannot forget that Chief Justice Roberts joined, and Justice Kennedy concurred, in the 2014 majority opinion written by Justice Alito in Burwell v. Hobby Lobby, holding that the Department of Health and Human Services mandate for contraceptive coverage under the Affordable Care Act violated the Religious Freedom Restoration Act (RFRA). They held that it substantially burdened the exercise of religion of Hobby Lobby, a for-profit corporation, by penalizing the company if it failed to provide insurance coverage for contraceptives for its employees, the use of which was contrary to the owners’ religious beliefs. This expansive view of what “free exercise” of religion means under RFRA, and by extension, what anti-LGBTQ conduct the Justices believe the Free Exercise clause of First Amendment protects, may soon be tested.

In June 2017, the Court granted a writ of certiorari in Masterpiece Cakeshop v. Colorado Civil Rights Commission, involving a “cake artist” who refused to bake a wedding cake for a gay couple because it would be contrary to his religion beliefs.  The lower court held that he violated Colorado’s non-discrimination act, which prohibits discrimination based on sexual orientation in places of public accommodation; he claims that the statute is unconstitutional because it would compel him to violate his First Amendment rights to free speech and free exercise of religion.   Because the case involves a “compelled speech” claim (and his appeal heavily emphasizes the creative artistry involved in his wedding cakes which he believes conveys a celebratory message that he should not be forced to make), it is possible that the case could be narrowly decided in his favor on that ground, rather than on his free exercise claim.  This would essentially carve out a free speech exemption to anti-discrimination laws for a handful of “creative” businesses – e.g., bakers, florists, and photographers – but not for the bulk of providers of goods and services.   Alternatively, a broader ruling on the free exercise claim would more significantly erode the protections that anti-discrimination laws exist to provide, and not just for the LGBTQ community.    Either way, it will be a significant decision regarding the extent to which civil rights laws will be weakened to allow exceptions for those who wish to discriminate against LGBTQ individuals and families.

Future “religious liberty” cases related to marriage equality that are likely to come before the Court are those which challenge state statutes that explicitly protect at least certain people (in some cases public officials) and businesses who practice “faith-based” discrimination, including but not limited to refusing to provide services to the LGBT community, from any adverse consequences.   For example, Mississippi’s HB 1523 protects numerous entities such as wedding vendors and foster care and adoption agencies, and persons (including officials) who issue marriage licenses and solemnize marriages, from any “discriminatory action” by the state if the conduct involved is based on “religious beliefs or moral convictions” that: 1) marriage is the union of one man and one woman; 2) sexual relations are properly reserved for such marriages; and 3) male or female refer to an individual’s “immutable biological sex as objectively determined by anatomy and genetics at time of birth.”  In Barber v. Bryant, a panel of the U.S. Court of Appeals for the Fifth Circuit lifted an injunction on the law entered by a lower court that had ruled the statute was unconstitutional under the First and Fourteenth Amendments, and reversed the lower court’s ruling on technical grounds (standing), but further litigation is pending.   It is likely this case will make its way back up through the appellate courts and perhaps to the Supreme Court.

In conclusion, there is a lot of political and judicial activity that directly impact LGBTQ people and our families.  It is impossible to read the tea leaves with any certainty, but it seems clear that marriage equality is here to stay, for the time-being. However, in the current political climate, we cannot take our rights for granted. There is no question that LGBTQ rights are in danger under the Trump Administration, as is evident by the slow and quiet chipping away at the progress we gained over the last eight years. If President Trump has the opportunity to nominate another Supreme Court Justice, then the composition of the Court will almost surely change, and we will likely see attempts to challenge Obergefell and invite the Court to reverse course. The best thing we can do to prevent this from happening is to stay informed, get involved, and elect people, including Senators, who support our families. Family Equality Council remains committed to keeping you informed about the issues of the day as well as those we see on the horizon and giving you the tools to get and remain involved in the important work of achieving legal and lived equality for LGBTQ families, and for those who wish to form them.