Marriage equality: A road not finished

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The U.S. Supreme Court’s decision last month on marriage equality was a watershed moment for inclusion of a great many people who had been excluded from a major institution of civil society. The opinions by the various justices, especially those on the right, were very revealing about the justices’ orientation to constitutional interpretation and the ability of some religious groups to implement their biases through legislation.

Some opponents will try to thwart full implementation of the decision. There is already litigation over a county clerk's refusal on claimed religious grounds to issue marriage licenses at all if some have to go to same-sex couples.

Other clerks in Kentucky have also refused to issue marriage licenses; two lawmakers there have introduced a bill to back up their right to do so and a new Associated Press poll finds Americans just about evenly split on whether clerks' religious objections should stand in the way of issuing marriage licenses.

Some politicians have even vowed to overturn the Court decision somehow, though it's very hard to see how that can be done. There will be appropriate ongoing debates and, no doubt, more litigation about free exercise of religion in this context. But these legal actions will, despite alarms raised by the dissenting justices, follow the ordinary and familiar process of figuring out answers when rights conflict.

The marriage equality decision was inevitable given the Court majority’s decisions over the past few years, but it is still being justly and joyfully celebrated. Justice Anthony M. Kennedy’s opinion for the five-member majority continues his leadership on this issue. As in earlier cases, he uses admirably soaring language about human freedom and dignity, the importance of marriage especially for families and children, and the Court’s duty under the Due Process and Equal Protection clauses of the 14th Amendment to recognize and rectify unjustified exclusion of minority groups. The other four more liberal justices who joined him might have written equally well, but it’s very important to general acceptance of the decision for a justice who very often votes with those members of the Court far to the right to write these majority opinions.

The four right-wing justices who dissent in Obergefell v. Hodges loudly lament that our democracy, as they understand it, has been destroyed, because they see the Court overreaching to find constitutional rights that aren’t in the text of the document. All of them felt moved to individually write dissents, even though the four opinions mostly contain similar complaints about alleged judicial activism. All claim that our democracy means that the Court should have allowed the continuation of the state-by-state debate about whether people can marry whoever they want.

The dissenters, however, can’t make it past a huge pothole in the way of their objection that the rights that the majority discusses are not specified in the Constitution. All members of the Court agree that the right to marry is a fundamental right. It’s so fundamental that it is one of the very few civil rights the Court has extended virtually without restrictions to people convicted of crimes and living in prison — for more than a quarter century. And what does the Constitution say about marriage? Nothing; the words “marry” and “marriage” do not appear in the text, but the Court found it in the context and meaning of the 14th Amendment in light of history. In a 1967 case invalidating laws preventing interracial marriage, the Court said that even though the Constitution doesn’t mention marriage, the Due Process and Equal Protection provisions dictated the outcome: “For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes cannot stand consistently with the Fourteenth Amendment.” This is exactly the analysis that the majority in Obergefell employed.

The dissenters nevertheless make their assertion that the debate in the states about the definition of marriage should continue and the Court has usurped that process. But what in reality is the process the dissenters want to see continue? Chief Justice John G. Roberts Jr. believes LGBTQ people are requesting special rights and trying to change the age-old definition of marriage, which is a mild way of saying what many believe: Gays are attacking “our” institutions. But history shows otherwise: LGBTQ people have been relentlessly attacked and excluded for a very long time and the state laws at issue in Obergefell were recently and specifically enacted to continue that exclusion.

In this context, the dissenters’ call to continue this process means that it’s OK with them to specifically target and exclude a despised minority so long as it’s debated first. It’s as if the Court had said regarding racial segregation, “Well, many states have outlawed it and others may or may not, but let’s see how it goes.” Instead, the Court majority appropriately held that this kind of intentional exclusion of an entire group from an important right is not subject to debate because the exclusion is contrary to fundamental principles enshrined in the Constitution.

Religious beliefs that are held by many are a major, perhaps the main, source of the efforts to exclude sexual minorities. (Of course many religious groups are vocally in favor of inclusion as well.) The majority opinion and three of the dissents in Obergefell comment on these beliefs, but the main focus of these comments is not on how the beliefs lead to exclusion but rather to ponder how the Court’s decision may chill the exercise of sincerely held beliefs of this kind. The majority opinion acknowledges the sincerity of some who want to exclude gays without allowing those beliefs to deter the right outcome. The dissenters obliquely suggest that the movement for marriage for all comes close to being religious discrimination against those whose religions teach that gays are evil.

Again here, the dissents invert the reality of who is attacking and who is being attacked. It’s as if we have to tread very lightly so as not to offend people who want to deny full humanity to others. Those who want to discriminate certainly have the right to their beliefs, but legally acknowledging the full humanity of one person doesn’t take something away from others; rather, the acknowledgment increases the overall amount of love and understanding in the world.

There is a locally penned judicial opinion that is more direct than any of the Obergefell opinions on how certain religious beliefs and moral condemnation led directly to the social exclusion inherent in the bans on gay marriage. In Washington State’s gay marriage case, Andersen v King County (2007) (which regrettably upheld the Defense of Marriage Act on a 5-4 vote), former Justice Bobbe Bridge, in her incisive dissenting opinion, emphasized that the marriage at issue in these cases is not a religious ceremony but a civil matter. She then provided ample evidence that those who championed the Defense of Marriage Act in the Washington Legislature did so from a stance of religious and moral condemnation and not for legitimate reasons related to the civil nature of the right to marry. In this light, Justice Bridge would have held that DOMA was unconstitutional not only as the singling out of a disfavored minority, but also as amounting to the imposition of some people’s religious belief on the rest of us — an “establishment of religion” in constitutional parlance. For my money, Justice Bridge’s opinion, because of these insights and others (including her history of the exclusion and abuse of sexual minorities), remains among the best statements of why the current wave of explicit exclusion of many people from the institution of marriage is a constitutional wrong that courts must make right.

Though not as direct as Bridge’s, Justice Kennedy’s opinion in Obergefell does the job to right that wrong. What remains to be seen is how quickly, given the barriers that are already being thrown up, state and local officials around the country will implement the decision. There will be appropriate ongoing debates and litigation about other aspects of the free exercise of religion in the context of equal marriage. But these legal issues should, despite the dire warnings of the dissents, be worked out without serious damage to legitimate religious exercise.

Even if all this takes some time, we have moved well forward. Though discrimination against LGBTQ people has not been ended, the Court has made our country more civilized and humane than we were. That’s always cause for celebration.

This article reflects the personal views of the author and was written on the author’s own time.


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About the Authors & Contributors

John Midgley

John Midgley

John Midgley is an attorney who works at Columbia Legal Services. He lives on Vashon Island.