Same –Sex Marriage, the U.S. Supreme Court, and the Struggle for Liberty and Equality
The results of a June 2023 Gallup poll show 71 percent of Americans support same-sex marriage, which is consistent with the total recorded in 2022. When the first poll was conducted in 1996, public support was found to be at 27 percent. It reached the majority level in 2011, passed 60 percent in 2015, and has remained steady since reaching 70 percent in 2021.
Despite the increase in public support, same-sex marriage continues to be debated by individuals, groups, and institutions that oppose this equality based on the freedoms of speech/expression and religious aspects of the First Amendment. This paves the way for discrimination toward same-sex couples, weddings, and marriages. Experts say LGBTQIA+ rights are vulnerable to Supreme Court rulings since Congress has not passed anti-discrimination laws related to businesses for sexual orientation and gender identity. States can attempt to pass local anti-discrimination laws, but national religious freedoms supersede them.
“Wherever you see restrictions on individuals – in terms of speech, expression, or freedom of assembly – you see a crackdown on LGBT rights,” said Julie Dorf, senior advisor to the Washington-based Council for Global Equality. “It’s the canary in the coal mine.”
In July 2012, a recently married same-sex couple wanted to celebrate their wedding in their home state of Colorado. They went to a local bakery to purchase a wedding cake. The owner/baker, a self-proclaimed devout Christian, refused to create it due to his religious beliefs and the opposition of same-sex marriage.
The couple, represented by the American Civil Liberties Union (ACLU), filed a complaint in September 2012 with the Colorado Civil Rights Commission under the Colorado Anti-Discrimination Act/Colorado Public Accommodations Law. Both prohibit business discrimination, including sexual orientation. The baker, represented by the Alliance Defending Freedom (ADF), fought back citing that it was infringing on his First Amendment rights to the free exercise of religion and that designing the cake would violate his First Amendment free speech rights since he would be using his artistry to express a message with which he disagreed. It’s interesting to note that the ADF is the representative for all of the business owners in the court cases discussed in this article. An Administrative Law Judge rejected his arguments and the Colorado Court of Appeals confirmed the Commission’s ruling.
The Colorado Supreme Court denied review, but the U.S. Supreme Court granted it in 2017. In examining comments made by the Civil Rights Commission, the U.S. Supreme Court Justice observed that members had expressed negativity toward the baker’s religious beliefs. Remarks were made that using freedom of religion and religion in general to justify discrimination was “despicable,” citing slavery and the Holocaust as examples. The Justice called the comments hostile and inappropriate, thus violating the First Amendment’s Free Exercise Clause (protecting the right to practice religion as long as it does not go against public morals or governmental interest). Because of this, the U.S. Supreme Court reversed the Colorado Civil Rights Commission’s decision in 2018 and ruled in favor of the baker.
According to Kate Sosin, reporter for The 19th News, “The Supreme Court looked at that case and said, ‘we don’t fully want to rule on this issue of religious freedom versus LGBTQ+ protections.’ And instead of really engaging with that issue, they ruled very narrowly for the baker and said that the Colorado Civil Rights Division displayed animus toward him because of his religious beliefs.”
The Court was not able to investigate the prominent issues of the case – freedom of speech and the free exercise of religion under the First Amendment and the refusal to serve same-sex couples – but it will have more chances to do so.
In June 2019, the Washington State Supreme Court ruled against a florist who refused to make arrangements for a same-sex couple’s wedding. In a unanimous decision, the Court noted that the state of Washington banned public discrimination on the basis of sexual orientation and same-sex marriage. The florist issued a statement saying that while she serves everyone, she could not create custom arrangements that “celebrate events or express messages” that are against her faith.
After the ruling, the case was appealed to the U.S. Supreme Court, but it was sent back down to the state. While the results of this case seem to be a step in the right direction, it was determined that the U.S. Supreme Court was specific in instructing the Washington Supreme Court to compare it to the Colorado baker case to see if any intolerant remarks were made regarding religion. The answer was No.
Another similar case was in the news just a few months later. Arizona’s Anti-Discrimination Ordinance was challenged by a calligraphy company that proactively searched for the right of refusal to create custom wedding stationery for same-sex couples. The owners argued that they cannot separate their belief – that marriage should only be between a man and a woman – from their custom artwork. The Arizona Supreme Court received the case after the Arizona Court of Appeals issued a ruling denying the owners the ability to discriminate against same-sex couples. The Arizona Supreme Court ruled that their free speech rights were ultimately violated by the Ordinance, which reversed lower-court rulings that favored the city of Phoenix. Although the ruling was limited to the creation of custom wedding invitations, Jenny Pizer, Law and Policy Director for the national LGBTQ rights group Lambda Legal, found the ruling troubling. “It is cracking the door open for businesses to use free speech rights to pick and choose among customers,” she said. It did just that.
In November 2019, a Christian photographer in Louisville, Kentucky sued the city on the grounds that its Louisville Metro (Fairness) Ordinance violated her constitutional rights. She opposes same-sex marriage but has never been forced to photograph a wedding of that type. The Ordinance states that it is an unlawful practice to deny someone “full and equal enjoyment of goods, services, privileges, advantages and public accommodations based on race, color, religion, nationality, disability, gender identity or sexual orientation.” The photographer alleged that the city was forcing her to be involved in same-sex wedding ceremonies and the suit asked the U.S. District Court in Louisville to stop the enforcement of the Ordinance on the grounds that it violated her First Amendment rights. She even garnered support from the Department of Justice. The Federal District Court ruled in favor of the photographer, with the judge stating that even though she has never been asked to photograph a same-sex wedding, she is protected from the “burdens” imposed by the city.
The most prominent recent case came to light in June 2023 and it has an eerily similar fight as that of the Colorado baker in 2018. The U.S. Supreme Court had a second chance at ruling between LGBTQIA+ rights or the freedom of speech and the free exercise of religion of the First Amendment. A Denver-area Christian web designer preemptively sued the Colorado Civil Rights Commission and other state officials for fear of punishment for refusing to cover same-sex weddings under the state’s Public Accommodations Law. The Law bans discrimination in places like retail businesses, restaurants, and hotels. She was ruled against in lower courts; the 10th U.S. Circuit Court of Appeals held that while a diversity of faith and religion “enriches society,” the state is compelled to “protect citizens from the harms of discrimination.” Because of this she appealed to the U.S. Supreme Court.
The web designer claimed that her serving everyone equally was unconstitutionally forcing her to create a message she opposes. Although she said she was willing to work with all people, she refused to create websites for same-sex weddings because of religious objections.
The U.S. Supreme Court sided in favor of the web designer and free speech, with many people calling it a “blow to LGBTQ rights” and a “license to discriminate.” The ruling could allow similar businesses to avoid punishment under laws that protect LGBTQIA+ rights in public accommodations and can leave state non-discrimination laws futile.
In 2019 a Waco, Texas Judge received warnings from the State Commission on Judicial Conduct for refusing to perform same-sex marriages. In July 2023 she submitted a brief to the Texas Supreme Court that argued that the Colorado web designer ruling would help her case and justify her actions. The Court agreed to hear her arguments after her lawsuit was dismissed by a lower appeals court.
LGBTQIA+ activists believe that this case is the first of many that will attempt to use the Colorado web designer case as a basis for lawsuits and note that it isn’t surprising that people are attempting to use the U.S. Supreme Court in their favor. According to Ash Hall, a Policy and Advocacy Strategist at the Texas ACLU, “When the courts have ruled in a way that gives people an option to refuse service or discriminate against other people, you get a whole bunch of court cases pertaining to that to see how far they can take it. It’s not surprising, just disappointing.”
The Judge claimed that the criticism she received from the State Commission hampered the free exercise of her religion, punished her for the actions she ultimately took because of her beliefs, and also violated her rights under the Texas Religious Freedom Restoration Act (RFRA) of 1993. The Act “Prohibits any agency, department, or official of the United States or any State (the government) from suppressing a person’s exercise of religion… except if it demonstrates that application of the burden to the person: (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
The filed brief stated that the Colorado case’s ruling was decided under the First Amendment’s Free Speech Clause and not RFRA, but because it rejects the idea of ‘compelling interest’ in equal participation in same-sex and opposite-sex marriage ceremonies, it is still applicable to the Judge’s case. According to one of her attorneys at the First Liberty Institute, a religious liberty legal group based in Plano, Texas, the case confirmed that “religious liberty is not a second-class right in America.”
Sonia Sotomayor, Associate Justice of the U.S. Supreme Court, fittingly called out the “second-class” position of the LGBTQIA+ community when she expressed dissent for the Colorado web designer ruling. “By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status,” she said. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
Two of the hardest-hitting and eye-opening statements were made by Human Rights Campaign President Kelley Robinson and Sotomayor; both echoed that the U.S. Supreme Court was moving in the wrong direction after the web designer ruling. “This decision by the Supreme Court is a dangerous step backward, giving some businesses the power to discriminate against people simply because of who we are,” said Robinson. Sotomayor added, “The LGBT rights movement has made historic strides, and I am proud of the role this Court has recently played in that history. Today, however, we are taking steps backward.”
With all of the recent triumphs in the fight for LGBTQIA+ rights, the previously mentioned cases illustrate an unfortunate trend regarding past and potential future discrimination. But we should have faith in the future!
Days after the ruling in favor of the Colorado web designer, new data shows that most American voters disagree with the decision. A survey conducted by Data for Progress found that 65 percent of voters believe businesses should not be allowed to turn away customers based on sexual orientation (along with other protected classes) because of personal/religious beliefs. Rob Todaro, the Communications Director at Data for Progress, noted the survey found that voters “consistently land on the side of nondiscrimination.” Another poll found that 64 percent of respondents agreed that the right of individuals to be served regardless of their protected status should be prioritized over the right of businesses to refuse service.
In response to the case that sided in favor of the Louisville photographer, the ACLU of Kentucky filed a brief that requested a Federal Appeals Court to uphold Louisville’s LGBTQ anti-discrimination protections and reverse the court ruling, as it “opened the door for businesses to deny service to LGBTQ people.” According to Corey Shapiro, Legal Director of the Kentucky ACLU, “The Louisville Metro Government unquestionably has the authority to prohibit businesses within its borders from discriminating against LGBTQ people in the sales of goods and services to the general public. If a business needs to know who the service is for to decide whether it will provide those services, that is identity-based discrimination.”
Even though same-sex marriage has come under attack again recently, and the advancements that have been made have not been without struggle and setbacks, we must remember that same-sex marriage laws are one of the most important landmark decisions for the LGBTQIA+ community and they exemplify how far we’ve come in the fight to end hate and discrimination.
Efforts to legalize same-sex marriage began across the U.S. in the late 1980s/early 1990s. Civil unions existed but couples were still denied rights associated with the union, along with those that were refused by their state. In 1989, the San Francisco Board of Supervisors passed an ordinance that allowed same-sex couples and unmarried heterosexual couples to register for domestic partnerships. The District of Columbia similarly passed a law in 1992 that allowed same-sex couples to register as domestic partners. Similar to San Francisco’s ordinance, D.C.’s domestic partnership status did not grant full marriage rights, but it did bestow benefits to the district’s same-sex couples, such as offering healthcare coverage if their partner was employed by the Federal Government.
The Defense of Marriage Act (DOMA), signed into law in 1996, was intended to define and protect the institution of marriage as being between one man and one woman. This gave individual states federal protection to not recognize same-sex marriages that were performed under the laws of other states. DOMA specified that only heterosexual couples could be granted federal marriage benefits. In the year 2000, Vermont became the first state to legalize civil unions. Three years later, Massachusetts became the first state to legalize same-sex marriage after the Massachusetts Supreme Court ruled that same-sex couples had the right to marry (Goodridge v. Department of Public Health).
In 2007, a New York lesbian couple wed in Ontario, Canada. The State of New York recognized the marriage, but because Section 3 of DOMA defined marriage as a union between a man and a woman, the Federal Government did not. When one partner passed away in 2009, she left her estate to the other. Since the marriage was not federally recognized, the living partner didn’t qualify for tax exemption as a surviving spouse and the Federal Government imposed over $360,000 in estate taxes; she sued the government in late 2010. That same year, Massachusetts found Section 3 of DOMA to be unconstitutional, and a few months later, U.S. Attorney General Eric Holder announced that then-President Barack Obama’s administration would no longer defend DOMA. In 2012, the 2nd U.S. Circuit Court of Appeals ruled that DOMA violated the Equal Protection Clause (guaranteeing the right of same-sex couples to marry) of the Fourteenth Amendment (prohibiting states from depriving “any person of life, liberty, or property, without due process of law”). Section 3 of the Act was struck down.
Though the U.S. Government could no longer deny federal benefits to same-sex married couples, other parts of DOMA were still intact. This includes Section 2, which declared that states could refuse to recognize the marriages of same-sex couples from other states.
DOMA was eventually invalidated by the historic Obergefell v. Hodges case in 2015, which required states to allow and recognize same-sex marriage; it ultimately made same-sex marriage legal at the federal level. The plaintiffs, groups of same-sex couples that sued their relevant state agencies in Ohio, Kentucky, Michigan, and Tennessee, challenged the constitutionality of their state’s ban on same-sex marriage and the refusal to recognize legal same-sex marriage. The groups argued that the statutes violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. One group also brought claims under the Civil Rights Act, which prohibits discrimination on the basis of sexual orientation (among others). The U.S Supreme Court ruled in favor of the plaintiffs in all cases.
Along with the Equal Protection Clause, the U.S. Supreme Court expressed that the First Amendment protects the rights of religious organizations to stand behind their beliefs, but it does not allow states to deny same-sex couples the right to marry. The Due Process Clause that was held by the Court guarantees that the right to marry is one of the fundamental liberties it protects and it applies to both same-sex and opposite sex couples. Judicial precedent has held that the right to marry is a “fundamental liberty” because it is seen as a right of personal freedom that protects the intimate association between two people, it safeguards families and children, and it has been recognized as a foundation of social order.
In June 20220 the U.S. Supreme Court reversed Roe v. Wade, which overturned the constitutional right to an abortion. In response, Supreme Court Justice Clarence Thomas said rulings that established rights for same-sex relationships, same-sex marriage, and contraception should be reconsidered. He argued that they “lack any basis in the Constitution” because their foundations are interpretations of “substantive due process” (protecting fundamental rights from government interference) of the Due Process Clause. One of the rulings he named was Obergefell v. Hodges.
The Respect for Marriage Act (RFMA), which repealed DOMA, was signed into law in December 2022 by President Joe Biden. While it is being celebrated as a historic law for LGBTQIA+ same-sex marriage rights, it should be discussed that, in light of Justice Thomas’s statements, it has its limitations. If the U.S. Supreme Court were to overrule Obergefell v. Hodges, RFMA acts only as a “limited remedy.” It does not (1) prevent a state from legally challenging Obergefell v. Hodges, (2) preserve a nationwide right to same-sex marriage, (3) require religious groups to work with same-sex couples (and their tax-exempt status cannot be revoked if they chose not to), or (4) require same-sex marriage licenses to be issued if U.S. Supreme Court precedents are overturned.
Regardless of its limitations, the Act is a turning point for same-sex marriage rights. It requires the Federal Government and all states to recognize same-sex and interracial marriages if they were legally performed or are performed in places where they are legal, including other states. This means that all same-sex and interracial couples who are legally married today and those that will be in the future cannot be denied the civil benefits of the unions in any state if U.S. Supreme Court standards were overruled. Also, under RFMA, marriages legally performed in one state must be honored in all states.
Although Justice Thomas’s words seem to be an “invitation” for individual states to pass legislation to potentially reverse the ruling, there are currently no legal precedents in place that will make this happen. According to Michael Boucai, a law professor at the University of Buffalo, Roe v. Wade was decided by the U.S. Supreme Court based on the Fourteenth Amendment and the word “liberty” in the Amendment. He noted that the same interpretation was applied to Obergefell v. Hodges, but the Amendment’s Equal Protection Clause was more influential in the decision; Roe v. Wade was decided on the grounds of liberty, but Obergefell v. Hodges was decided on liberty and equality grounds. “I would not be panicking right now about the prospect of Obergefell being overruled,” Boucai said.
For another potential win for the fight for LGBTQIA+ rights, the California Senate passed a proposed constitutional amendment in July 2023 that would repeal Proposition 8, a 2008 ballot proposition created by opponents of same-sex marriage. The amendment, ACA 5, would remove language from the state constitution that “only marriage between a man and a woman is valid or recognized in California.” Voters in the state will have the chance to remove the terminology from their constitution in 2024’s general election.
Another encouraging sign is the addition of countries that are registering same-sex marriages. Following a landmark Supreme Court ruling on June 28, 2023, same-sex couples in Nepal will soon be able to legally register their marriages. Estonia’s parliament passed a law that same month that legalized same-sex marriage; it will come into effect on January 1, 2024. Before Estonia, the most recent countries to legalize marriage equality were Cuba, Andorra, and Slovenia, all doing so in 2022.
There are currently 34 countries where same-sex marriage is legal. Human Rights Campaign (HRC) Global notes that they are tracking developments in support of marriage equality in the Czech Republic, India, Japan, the Philippines, and Thailand.
Here’s another positive poll. In 2001 the Pew Research Center found that 57 percent of Americans opposed same-sex marriage and only 35 percent supported it. In 2022, a Pew poll found 61 percent of Americans said that the legalization of same-sex marriage is good for society.
Although we’ve come a long way, we recognize that the journey for same-sex marriage equality will continue to be marked with triumphs and tragedies; the future filled with uncertainty and hope. What we do know for certain is that there are many dedicated activists, allies, and groups that continue to aid in the reform for LGBTQIA+ rights who will do everything in their power to continue to fight until the final victory is won.
Jim Obergefell, activist and lead plaintiff in the Obergefell v. Hodges case, was imperative in obtaining the right to same-sex marriage. His fight now is to keep it.
In an interview with Time Magazine, Obergefell was asked to give a message to young LGBTQ people who may be worried that the right to same-sex marriage is under threat. He shared, “It is okay to be afraid. In fact, if you are afraid, that means you’re paying attention. But just know I won’t stop. I won’t stop speaking out. I won’t stop protesting, I won’t stop doing everything in my power to make sure you have the right to marry the person you love. And I am not the only one. There are countless people like me who are out there fighting for this, and we’re not going to let it go. I might not know you, but I am fighting for you. I’m fighting for every queer kid out there, so that they can grow up in a world better than the one I grew up in.”
Walk through fire for you.
For now, U.S. Supreme Court rulings continue to keep same-sex rights vulnerable due to freedoms of speech, expression, and religion. Intolerance is still an unfortunate aspect of the lives of same-sex couples when all they want is to be treated as equals. To quote Justice Sotomayor, “LGBT people do not seek any special treatment. All they seek is to exist in public. To inhabit public spaces on the same terms and conditions as everyone else.”
Most of all, they want to be able to express their love to each other and share it with the world, not only just through marriage, but through everything that comes with a wedding – from the ceremony to the decorations to everything in between. As expressed by Obergefell in response to Justice Thomas’s discrimination of same-sex couples, “[He] makes it clear… that he does believe some of us are more equal than others – that some of us don’t deserve to commit to the person we love.”
Just let me adore you.