Ted Eytan / CC-BY-SA-2.0

Obergefell Looks Safe in Kavanaugh Era, But LGBTQ Rights Outlook is Bleak

January 28, 2019

With the election of Trump, and the following changes to the Supreme Court, one of the most common questions I was asked by people outside of the secular movement was what this would mean for marriage equality. After all, the decision in Obergefell came down less than 4 years ago, and was a 5-4 ruling, penned by now-retired Justice Kennedy. With Kennedy replaced by Kavanaugh, there’s a very solid argument to be made that were the case to be heard today, the ruling would be different. I’m not certain on that (I think there is a case to be made that Chief Justice Roberts only voted as he did because he could do so without changing the outcome of the matter), but it’s academic. What is more important, though, is that I don’t feel that the Court will reverse itself in this area. However, recent determinations indicate that we are facing a very bleak time for legal decisions regarding LGBTQ rights generally, and the harm that will come is overwhelmingly predicated on religion.

Why don’t I see the decision being overturned? The impact on society of rolling back marriage equality would be staggering. By June 2017, over 1 million Americans were part of a same sex marriage, including many in states where equality had to be mandated by the Supreme Court. Rolling back the right to marry would create chaos in multiple areas, regarding taxation, mortgages, insurance, immigration, and many others. I simply don’t see business-friendly justices like Roberts (whose vote, let’s remember, upheld the Affordable Care Act largely based in his fear of the economic uncertainty that overturning the law would provoke) plunging the nation headfirst into that situation. Moreover, in the time since the decision, no one has been harmed by it. Society has, by and large, accepted marriage equality. The doomsayers have been proven wrong, as we knew they would be. More than two thirds of the population support marriage equality. While the Supreme Court is not driven by public opinion, it also does not ignore it.

But all is far from being roses as far as the legal status of the LGBTQ community. In recent days, The Department of Health and Human Services granted a waiver from federal anti-discrimination requirements to South Carolina’s Foster Care Program. What this means is that South Carolina can continue to contract with a Christian adoption agency that has refused to place children with, inter alia, Jewish families. Tax payer money will flow to an explicitly religious group, and that money will be used to provide services in a manner which discriminates against other religions. It seems certain this opens the door for states contracting with agencies that discriminate against individuals based on their sexual orientation, gender identity, religious faith or absence thereof, and any other categories that might lead a religious organization to disfavor a group. Religious dogma, and payback to the religious right that elected this administration, is being placed ahead of the needs and best interests of children desperately seeking a forever family.

Similarly, a married lesbian couple recently had their federal lawsuit against a retirement home that refused to accept them as residents dismissed. The couple sued under the Federal Fair Housing Act, and the judge ruled, following 8th Circuit precedent, that the FHA did not specifically prohibit discrimination based on sexual orientation, and that such discrimination could not be seen as discrimination based on gender, which is banned.

The argument that discrimination based on sexual orientation is already covered by bans on sex discrimination is a strong one. Either one of the plaintiffs here can argue that were they a man, and so their marriage would have been between a man and a woman, they would have been granted residency in the home. Because they are a woman, they were refused. The act of refusal, therefore was based on their sex, and thus violated the FHA. Indeed, federal Courts of Appeal have accepted this logic, with both the Second and the Seventh circuits finding that discrimination based on sexual orientation is discrimination based on sex, and so prohibited by Title VII of the Civil Rights Act. Other circuits have found the opposite, creating a circuit split, and the possibility of a future ruling by the Supreme Court.

And that’s the problem. Given the make-up of this Court, there is little doubt in my mind that it will take every opportunity to restrict the spread of LGBTQ rights. Not only will they seek to limit laws such as the Fair Housing Act from being used to protect gays and lesbians, but they will also use religious exemptions to grant permission to businesses and individuals to refuse service to them. We are entering a legal era where “it’s against my religion” appears likely to become the get out of jail free card for all laws. But it will have to be the right religion. I don’t foresee judges being quick to grant such exemptions to Scientologists or Pastafarians, for example. But Christians, in particular Christians who subscribe to the social views of the religious right, will be able to opt out of obeying law after law that seeks to require equality and basic civil rights. This Supreme Court will continue the process of placing religious belief as an über-right, paramount over all others.

So to anyone planning a marriage to a person of the same sex, I don’t think the right itself is going to be taken away any time soon. I do think, though, finding a cake baker, a florist, a reception hall, or possibly even a county clerk to issue your license is likely to become a lot tougher, especially if you live in the Bible Belt.