It finally happened. Love won.
Last Friday the Supreme Court issued its Obergefell v. Hodges decision, proclaiming, once and for all, that the right to marry is so fundamental that it cannot be denied on the basis of sexual orientation.
For many, the Court’s decision constitutes a watershed moment in American history. The images of joy and love and celebration that have filled our streets and screens since the opinion issued seem, to me at least, to make the America promise more tangible. In an instant, rights that went unrecognized sprang into existence. As President Obama remarked, the decision was “justice that arrive[d] like a thunderbolt.” But while the Court’s opinion should certainly be celebrated, its ultimate effect on the broader fight for LGBT equality is unclear.
Our legal system is based on a principle called stare decisis, which means that future cases must be determined under the reasoning of past cases. Because we subscribe to a strict precedential system of jurisprudence, the rationales that form the foundation of Supreme Court decisions are often just as, if not more, important than the ultimate outcomes. It is with this in mind that we must recognize that the Supreme Court’s Obergefell decision, while an important step forward for our country and the LGBT rights movement, is far from the sweeping proclamation of equality that many had hoped for and leaves many questions unanswered.
The modern gay rights movement’s push to obtain legal recognition and benefits for same-sex couples dates back to the 1970’s, but it wasn’t until 2003 that Massachusetts became the first U.S. state to allow same-sex couples to marry. In reaction to Massachusetts permitting same-sex marriage, a number of states passed constitutional amendments and ordinances that defined marriage as the union of one man and one woman. It is within this framework that plaintiffs across the country began to mount legal challenges to same-sex marriage bans.
Even before the compendium of cases that were consolidated and ultimately reversed in Obergefell, nearly every Federal court to review statewide same-sex marriage bans found the bans invalid under a variety of legal theories. The piecemeal process was tedious for LGBT advocates and provided little certainty to Courts analyzing same-sex marriage bans, or same-sex couples wishing to understand the full extent of their rights. The Supreme Court’s decision to accept the Obergefell cases for review gave it the opportunity to uniformly answer the question of whether states were required to issue marriage licenses to two people of the same sex and, if so, under what constitutional theory.
In dozens of briefs submitted to the Court, a number of legal theories were presented as to why states should be required to allow same-sex couples to marry. Most compelling, perhaps, and as advocated by a number of parties and interest groups, including the United States Solicitor General’s Office, was the arguments that gay marriage bans are unconstitutional because the LGBT community constitutes a “suspect” class of people that have been historically discriminated against by the government. Therefore, under Supreme Court precedent, all government actions that discriminate against that class must be reviewed under a strict, and practically insurmountable, level of constitutional scrutiny.
Under a suspect class theory, the Court would have not only invalidated state bans on same-sex marriage, but would have also provided a much needed tool for LGBT advocates to challenge other laws that discriminate on the basis of sexual orientation. In short, a determination by the Court that members of the LGBT community constitute a suspect class (or a quasi-suspect class) would have granted them the same protection against discriminatory laws as those discriminated on because of their race, national origin, religion, citizenship status, or gender.
The fact that the Court’s opinion fails to acknowledge, let alone address, the issue of suspect classification is ultimately unsurprising. The politics of the Court leading up to the 5-4 Obergefell decision have been the subject of much analysis, and the opinion’s focus on the characteristics of the institution of marriage, rather than those historically prevented from joining the institution, was the price paid for Justice Kennedy’s vote in favor of marriage equality. So too was the lack of any concurring opinions by the Court’s liberal bloc on the level of scrutiny the constitution requires for sexual-orientation based laws.
Obergefell did nothing to end non-marital discrimination on the basis of sexual orientation and there is a mounting body of Supreme Court precedent (all of which have Justice Kennedy voting in the majority) that individuals and corporation are not required to abide by certain governmental regulations if those regulations offend their sincerely held religious beliefs. Texas’ attorney general has already stated that he believes county clerks are free to refuse to issue same-sex couples marriage licenses if doing so would offend their religious convictions. The Court’s Obergefell opinion, rather than give the lower courts, or the LGBT community, guidance on how to analyze government action that discriminate on the basis of sexual orientation, has punted the issue for another day. That may have been the price the Court’s liberal justices needed to pay in order to secure marriage equality, but ultimately, this uncertainty under the law will cause the LGBT community to suffer discrimination. As seen in Texas, the clash is between those claiming equality and protection as members of the LGBT community and those claiming the right to discriminate under religious freedom laws is already in motion.
Justin S. Wales is a Constitutional litigator at Carlton Fields Jorden Burt. He represented the Equality Federation and the Campaign for Southern Equality in Obergefell v. Hodges, as well as the plaintiffs in Florida’s Freedom to Marry case. Follow him @DominantCulture.