#LoveWins: So what happens now?

After a landmark decision by the United States Supreme Court in favor of gay marriage nationwide, where will the focus be for the LGBTQ movement?

Photo by Joe Parks (Flickr)

Celebration erupted throughout the entire country on June 26, 2015—the United States Supreme Court ruled in favor of gay marriage.  Every social media avenue spread the word; love had finally won.  It was perhaps the most anticipated decision on the calendar for the Supreme Court, as the fight for marriage equality had gained momentum in America over the past few years.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family…”

For its October 2014 term, the Supreme Court granted review of Obergefell v. Hodges in which the United States Court of Appeals for the Sixth Circuit upheld the bans on same-sex marriages in Kentucky, Michigan, Ohio, and Tennessee.  The Sixth Circuit’s decision came after the Fourth, Seventh, Ninth, and Tenth Circuits struck down gay marriage bans and thirty-two states allowing same-sex couples to marry.

The two key questions addressed in the Supreme Court’s decision were: (1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex; and (2) Does the Fourteenth Amendment require states to recognized legally valid gay marriages from other states?

Ultimately the United States Supreme Court ruled in a 5-4 decision that (1) the Fourteenth Amendment does require a state to issue marriage licenses to same-sex couples under the Due Process Clause, and (2) states must recognize same-sex marriage validly performed out of state.  In perhaps Justice Kennedy’s most famous closing remarks in a Supreme Court opinion, he writes:

“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.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law.  The Constitution grants them that right.”

Opponents of gay marriage will likely now focus their efforts on religious freedom and free speech, rights guaranteed by the First Amendment

After the decision, the question left to be answered is “now what?”  Opponents of gay marriage will likely now focus their efforts on religious freedom and free speech, rights guaranteed by the First Amendment.  For instance, more states may pass legislation much like Indiana and North Carolina, allowing magistrates to invoke their religious freedom and not issue marriage licenses to same-sex couples.

Four states in particular took immediate action to protect religious rights.  Texas Attorney General stated that judges and state workers could refuse to grant marriage licenses to gay couples.  Louisiana’s Clerks Association initially stated it was advising clerks to wait on issuing marriage licenses until after the three-week rehearing period, however, marriage licenses were issued beginning June 29, 2015.  Kansas and Alabama refused to comply with the ruling, although Kansas has since conceded and instead the governor issued an executive order protecting religious freedom.

Those favoring religious freedom will also likely want laws in place to protect business owners from serving same-sex couples.  Notably, Oregon recently ruled that a baker who refused to make a wedding cake for a lesbian couple must pay $135,000 for the denied services, which may affect the argument in other states.  However, Colorado has also recently proposed two constitutional amendments—one that would redefine marriage along traditional lines as a “religious expression” and another that would require a state to maintain a list of LGBTQ friendly business in order to protect business owners like the Oregon bakers.

… over half of all LGBTQ people live in a state the study categorize as “negative equality states” and “low equality states” 

LGBTQ advocates will have many areas of law to switch their focus to now that the win for marriage equality has been secured.  In a recent study by the Movement Advancement Project 1, over half of all LGBTQ people live in a state the study categorizes as “negative equality states” and “low equality states.”  Essentially, these are states with laws and policies that have harming effects based sexual orientation and gender identity.  North Carolina is a low equality state.

As the study points out, even with marriage equality, many states lack protections for the LGBTQ community in the areas of “non-discrimination laws, safe school laws and policies, health and safety policies, and the ability of transgender people to correct the gender marker on identity documents.”  For example, only thirteen states and the District of Columbia have laws that prohibit discrimination in schools on the basis of sexual orientation and gender identity.

Furthermore, only fifteen states and D.C. have hate crime laws that cover sexual orientation and gender identity. In contrast, fourteen states have hate crime laws that do not cover these categories and six states have no hate crime laws at all.  However, there are federal protections against hate crimes based on sexual orientation.  In 2009, the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act was enacted to include prosecutions of bias-motivated crimes based on sexual orientation and gender identity.

Transgender people have even less protection.  There are forty-one states with no laws providing for LGBTQ inclusive insurance protections, while only ten states and D.C. prohibit transgender exclusion health insurance services.  Ironically, fourteen states (all of which are included in the above forty-one number) require proof of sex reassignment surgery, court order, and/or amended birth certificate in order to change the gender marker on a driver’s license.  In order to pay for sex reassignment surgery, most transgender people need insurance to help cover the cost, and in these states insurance services do not have to cover LGBTQ people.

It is impossible to tell what will happen in the years to come with the LGBTQ movement.  Freedom of religion is a long-standing liberty in the United States, meaning that there will likely always be a conflict between LGBTQ rights and religious rights.  Consequently, LGBTQ advocates will need to build on the momentum gained by the Supreme Court’s decision in order to gain protections in other areas of law.

Ana Hopper, Editor-in-Chief Emeritus
About Ana Hopper, Editor-in-Chief Emeritus (33 Articles)
Ana Hopper is a 2016 Campbell Law graduate and served as the Editor-in-Chief of the Campbell Law Observer for the 2015-2016 academic year. She is originally from Winston-Salem and graduated from the University of North Carolina at Charlotte in 2012 with a Bachelor of Arts in Political Science and Sociology. The summer following her first year of law school, Ana worked as a research assistant for Professor Amy Flanary-Smith. Ana also interned at the Criminal Appellate Section of the Department of Justice her second year, and at the New Hanover District Attorney's Office as an intern the summer before her third year. She served as a Legal Research and Writing Scholar, Vice President of BLSA, and Community Chair of Lambda during her time at Campbell.
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