May 6, 2015
Not the End of the Road: The Struggles That Remain After Marriage Equality
ACSblog marriage equality symposium
*This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.
As the four legal teams representing same-sex couples from Ohio, Kentucky, Tennessee and Michigan left the Supreme Court after oral argument in Obergefell v. Hodges, we felt overwhelmed by the significance of the moment. The Supreme Court is now poised in our combined cases to decide whether the Constitution guarantees same-sex couples the freedom to marry. Many of us had worked toward this day for well over a decade or longer.
However, while a victory in Obergefell would be historic, it would not be the end, even for our marriage work. A movement to secure civil rights is never finished by a Supreme Court ruling, no matter how important that ruling may be.
As we have seen after past marriage court victories, states determined to discriminate do not simply give up. Instead, for example, they fight to deny the children of same-sex spouses two-parent birth certificates. Same-sex spouses who were precluded from marrying until recently, or whose marriages were denied recognition as a result of discriminatory state marriage bans, may still have to fight for crucial marital protections subject to a relationship duration requirement (such as social security benefits for a surviving spouse, which accrue only to those who were married for more than nine months under state law).
An Obergefell victory also would highlight the significant non-marriage work left to do to protect lesbian, gay, bisexual and transgender people from discrimination in employment, public accommodations, housing, credit, education and other arenas. No federal law explicitly prohibits such discrimination based on sexual orientation or gender identity. 29 states lack any state law explicitly prohibiting such discrimination based on sexual orientation, and the number climbs to 32 with respect to gender identity. Thus, a win in Obergefell would create a world in which same-sex couples could marry, but still lose their jobs or be denied a mortgage or an educational opportunity for doing so.
Other work remains, too. We must continue our efforts to prevent bullying of LGBT youth in school, police misconduct and criminalization of people living with HIV, and we must increase access to medically necessary care, particularly for trans people and people with HIV. We must also continue to broaden acceptance by courts, agencies and others that discrimination based on gender identity and sexual orientation necessarily constitutes sex discrimination under Title VII and other sex discrimination laws and regulations.
However, even as we press forward with these priorities, our movement faces a grave new threat. Our well-funded opponents have not given up, either. Instead, they have orchestrated a deluge of bills in about half the states ‒ approximately 100 bills by most counts ‒ designed to allow businesses, public employers and other institutions to use religious justifications to deny service to lesbian and gay people or treat them as unmarried. These religious refusal laws threaten to eviscerate nondiscrimination laws even before we succeed in passing them. Moreover, these bills not only constitute explicit invitations to discriminate against LGBT persons, but put others at risk of serious harm as well.
For example, legislators in Texas, Alabama and Michigan are considering a series of so-called “conscience clause” bills that would allow state-funded child placing agencies to refuse to place a child with potential foster or adoptive parents if the placement conflicts with the agency’s “religious or moral” convictions, including restricting potential LGBT foster and adoptive parents. These bills are thinly-veiled attempts to single out LGBT foster and adoptive parents at the expense of thousands of children in foster care in these states who lack a stable, loving family to care for them and potentially provide a permanent adoptive home.
As another example, recent outrage about religious refusal bills in Indiana (SB 101) and Arkansas (HB 1228) prompted revisions but not vetoes, leaving new harmful laws in place. Although legislators amended Indiana’s law to limit its application in discrimination contexts, Indiana still lacks any statewide nondiscrimination law based on sexual orientation or gender identity. Additionally, the amendment did nothing to fix the way in which Indiana’s new broad religious refusal law threatens particular harm to women, transgender people and people living with HIV.
In other words, when women seek health care from a pharmacist or a doctor, Indiana’s religious refusal law still invites medical providers to point to their own religious beliefs in denying care. This isn’t simply a hypothetical scenario. In Benitez v. North Coast Women’s Care Medical Group, California doctors refused infertility treatment to our lesbian client, citing their religious beliefs. Just last month, a Georgia pharmacist acknowledged denying medication to a woman who was miscarrying, also relying on religion. Because only women and not men are prescribed certain medications such as birth control pills, courts regrettably may not treat a refusal to provide this health care as discrimination. Consequently, an amendment to limit use of a religious refusal law in discrimination contexts may be no fix at all for this type of problem.
Religious refusal laws also threaten similar injury to people with HIV who frequently have particular health needs not shared by others. Health care providers have pointed to religious reasons for denying people living with HIV access to life-saving treatment. Transgender people already face pervasive discrimination in health care settings, and religious refusal laws put them at particular risk as well.
The new challenge posed by religious refusal laws will be among the toughest the LGBT community has ever faced. Our civil rights movement has seen extraordinary progress in the last ten years. In little over a decade, LGBT persons have gone from being presumed criminals to being able to marry in 36 states and hopeful for a pivotal victory securing the freedom to marry nationwide. However, regardless of how the Supreme Court rules next month, our work continues and some of our greatest battles are still ahead of us.