June 26, 2015– Marriage Equality Comes to the USA
More than two million LGBTQ American citizens have exchanged vows since SCOTUS ruled on Obergefell v. Hodges deciding that Marriage Equality is a Constitutional Right in a decision that opened the doors at courthouses across the USA.
Jim Obergefell was lead plaintiff in the Obergefell v. Hodges decision handed down on this day June 26, in 2015.
On July 11, 2013, Ohio residents Obergefell and his partner John Arthur, who was battling ALS, flew to Maryland where same-sex marriage was legal, and got married on the tarmac at Baltimore-Washington International Airport before turning around and returning home. When the couple discovered Ohio wouldn’t recognize Obergefell as a spouse on Arthur’s death certificate, they filed a federal lawsuit seeking recognition of their marriage. Sadly, Arthur died before the SCOTUS decision recognizing the couple’s marriage was handed down.
That is the simple version: Obergefell v. Hodges was actually a consolidation of six lower-court cases, originally representing 16 same-sex couples, seven of their children, a widower, an adoption agency, and a funeral director. The cases came from Michigan, Ohio, Kentucky, and Tennessee. The cases made their way to The Supremes who heard oral arguments in April 2015.
SCOTUS’s ruling in Obergefell v Hodges came after a year of decisions at local levels, then reversals, then reversals of reversals, creating nationwide same-sex marriage chaos. Some people were considered married in their own state, but not while they traveled for vacation. In other places, marriage licenses were granted for a while and then withheld again, so that some couples were married but their friends couldn’t be.
On June 26, 2015, Marriage Equality became the law of the land. From the bench, Associate Justice Anthony Kennedy read the Supreme Court decision affirming Obergefell’s marriage.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.”
In his dissent, the charming Justice John Roberts said:
“Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. … Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.”
“If you are among the many Americans – of whatever sexual orientation – who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
Justice Antonin Scalia, who passed on the next world in February last year, taken by a bad case of Homophobia at 79-years-old, stated:
“Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
President Barack Obama praised the decision and called it:
“A victory for America.”
After the ruling, The Facebook profiles went rainbow-hued. International companies went out of their way to congratulate the LGBTQ community. The White House was lit up with rainbow lights. Supporters went to social media, held public rallies, and Pride parades celebrated the ruling. Justice Anthony Kennedy and the other Supremes were chosen as The Advocate‘s “People Of The Year”. It was our honeymoon.
The Gallup Organization reports that 49% of cohabiting same-sex couples are now legally married, up 10% over a year ago.
The overall percentages aren’t huge. The stats differ from poll to poll, but only 4% -10% percent of Americans are LGBTQ, it depends on what you are measuring, and the degree that people are out-of-the-closet, but I think we can safely say that there are about 12 million LGBTQ folks in the good ol’ USA. 10.2% of LGBTQ people are married to someone of the same gender, which is up from 7.9% in the months before SCOTUS legalized Marriage Equality. That means there are still a lot of single people!
But, public support has really grown. 66% of people polled now support Marriage Equality, up from 45% before the ruling. Support will probably continue to grow as society becomes more blasé about same-sex marriage, realizing that they strengthen instead of harm families and communities. The numbers are even higher with Millennials, who support Marriage Equality by 75%, according to a 2020 Pew Research Center poll.
Yet, for all our gains, efforts by state legislatures to allow discrimination based on Religious Beliefs continue. And, with a reshaping of the Supreme Court, we can anticipate some big steps backward. Over the past few years there have been a bunch of anti-LGBTQ bills introduced in numerous states. Some have come in the form of those Religious Freedom bills, designed to allow government clerks and others to deny services to gay people. Some are the bathroom-related bills aimed at regulating which bathrooms transgender people may use. Right now, the law doesn’t allow discrimination against customers in public accommodations based on their religion, race or national origin, and ultimately it won’t allow discrimination based on sexual orientation. That could soon change.
Last year, a Supreme Court historic ruling outlawed discrimination against LGBTQ people in the workplace. But religious leaders who oppose LGBTQ rights questioned the decision, particularly as to whether it applies to religious institutions that are often protected by First Amendment freedom of speech rights. The division is unfolding as more religious Americans have become supportive of LGBTQ rights, even as their faith leaders denounce such changes.
The court’s decision prohibits employers from firing someone because of their sexual orientation under Title VII of the Civil Rights Act of 1964.
The Supreme Court is expected to look further into LGBTQ rights and Religious Liberty protections during its next term, which begins in October.
Just last week SCOTUS took up Fulton v. City of Philadelphia, a case dealing with litigation over discrimination of local regulations based the Free Exercise Clause and Establishment Clause of First Amendment. The specific case deals with a religious-backed foster care agency that was denied a new contract by the City of Philadelphia, Pennsylvania due to the agency’s refusal to provide service to married same-sex couples on religious grounds.
In a unanimous judgment the Court ruled that the city’s refusal due to the agency’s same-sex couple policy violated the Free Exercise Clause. The case was decided on narrow grounds outside of the Supreme Court’s prior decision in Employment Division v. Smith, which had previously ruled that neutral laws of general applicability could not be challenged for violating religious exemptions. Instead, in Fulton, the court ruled that services like foster care contracting were not public accommodations covered by Smith, and thus were subject to strict scrutiny review. Because the city allowed for exceptions to be made in its anti-discrimination policy for foster care certification, the Court deemed the city’s policy to violate the foster case agency’s free exercise of religious under Smith.
The court’s recent record on LGBTQ has been mixed. In 2019, a majority ruled that the current administration could block most transgender people from serving in the military while lower courts reviewed cases challenging the policy. Six of the Supreme Court Justices are Catholic, Justice Neil Gorsuch was raised Catholic but attends a Protestant church these days and the other two are Jewish.
In 2017, HB 1523 became the law in Mississippi. This bill, the Religious Liberty Accommodations Act, is vast in its reach. It would give business owners the right to deny services to LGBTQ people, and it would allow court clerks to deny marriage licenses to same-sex couples, or social workers to deny adoptions by couples they believe may be engaging in premarital sex.
Yet, here we are six years after Obergefell: society has not crumbled, citizens are not wandering the streets in a daze, no one has married their horse, kids are not all that confused about gender, marriage as an institution has not been broken and mocked, no minister or priest has been jailed for refusing to perform a ceremony, no one is teaching children sexual techniques in sex ed. classes, the terrorists did not win, but the disgraced, Mike Pence was offered up as a sacrifice to to the fat, golden MAGA calf.