Taking Stock Six Years After The Same-Sex Marriage Ruling

In the six years since same sex marriage became legal all across America (the image above is of a friend in front of the U.S. Supreme Court), public support for marriage equality has grown.  Yet, in more than half of the states in America, LGBT citizens have no state law legal protections and can be denied housing and public accommodations and even health care access by homophobes and bigots.  The Supreme Court ruling in Bostick v. Clayton County belatedly granted employment non-discrimination protections to LGBT Americans, yet in red states one has to wonder if targeted LGBT employees have the ability or courage to take on their oppressors in court. In Virginia, thanks to our democrat governor and Democrat controlled legislature, LGBT Virginians have across the board protections. Yet, if elected GOP gubernatorial candidate Glenn Youngkin - a darling of The Family Foundation, Virginia's most powerful hate group - would likely seek to repeal or cripple these hard fought for protections. Meanwhile, Republicans in the U.S. Senate are blocking the enactment of federal protections. A piece in Politico looks at this situation.  Here are article highlights:

On June 26, 2015, six years ago today, the U.S. Supreme Court struck down all state laws that discriminated against gay and lesbian unions and made same-sex marriage the law of the land. Unlike other landmark civil-rights decisions, like the court’s 1954 order to desegregate schools, implementation of Obergefell v. Hodges was straightforward and easy. The most any local clerk, county recorder or state health department had to do was to change a few words on an application for a marriage license.

The impact of those small clerical adjustments is now strikingly clear. According to the census, more than half of the country’s nearly one million same-sex partner households are now married. . . . . Gallup recently found that 70 percent of the American public, including for the first time a majority of Republicans, now support equal marriage rights.

But it has also become apparent how limited Obergefell’s effect turned out to be. The court’s majority opinion was soaring and celestial in its rhetoric, but very grounded in its legal scope. In many areas, conflicts over LGBTQ rights remain as unsettled as they were before the marriage case was decided—so much so that some gay-rights litigators are today as likely to rue Obergefell as a missed opportunity as to celebrate its influence.

There’s an irony to where they have found themselves, as the narrowness of their campaign was, initially, a winning strategy. For years, lawyers suing for marriage equality circumscribed their cases as tightly as possible, so that judges already ambivalent about expanding rights to same-sex couples would not see anything further at stake than state marriage laws.

But a simultaneous ruling by the court that the Defense of Marriage Act was unconstitutional dramatically changed gay-rights litigators’ view of what was possible. By the time the big question—whether states could restrict marriage to opposite-sex couples—landed back in the Supreme Court in the Obergefell case in 2015, the lawyers decided to aim higher. They saw an opportunity to leverage Obergefell into a case whose impact would be felt far beyond state marriage laws.

Standing before the justices that spring, Bonauto and Verrilli argued that sexual minorities should be treated as a protected class under federal civil-rights law. . . . In essence, the lawyers were asking the justices to make the case about who was targeted by the laws, rather than what right had been denied them.

Yet Justice Anthony Kennedy, who had previously written three watershed opinions that had helped to establish the full citizenship of gay men and lesbians, had consistently declined to see the cases on those terms. His opinions turned on amorphous concepts like “respect” and “dignity” in place of the rigorous logic of civil-rights jurisprudence. When Obergefell reached his desk, Kennedy drafted a majority opinion that treated it very much as a case about the specific right at stake rather than the class of people harmed.

But now the decision’s limits are becoming clearer. While a federal court cited Obergefell in 2016 as a basis to strike down Mississippi’s ban on adoption by gay couples, its impact has been barely felt in areas beyond family law. Indeed, in the years since, gay-rights advocates and litigators have been fighting many of the same issues they confronted years, even decades, earlier.

Congress has yet to pass the Equality Act, which would amend the Civil Rights Act of 1964, and other federal statutes, to include sexual orientation and gender identity as categories protected against discrimination. In last summer’s Bostock v. Clayton County, the Supreme Court ruled that gay men, lesbians, bisexual and transgender people could already not be denied work based on the law’s inclusion of “sex” as a basis on which employment discrimination was prohibited. But that reasoning in the majority opinion, laid out by Kennedy’s successor Neil Gorsuch, again refused to read coverage for sexual minorities into the Constitution. That meant Bostock did not address legal discrimination against them in other spheres—such as housing, education, lending or public accommodation—and left open the possibility that a conservative Congress could still amend the Civil Rights Act to expressly permit it.

Indeed, what gave Obergefell its cultural force may also be what limited its legal impact—and laid the challenge that another generation of strategists and campaigners will need to tackle.