Didn’t Friday’s win for marriage equality feel good? Even though the decision affirming the fundamental right of LGBTQ people to marry whomever they love seemed inevitable—especially given the impressive string of nearly unbroken federal court wins leading up to Friday’s decision in Obergefell v. Hodges—it’s also the Roberts Court we’re talking about here. So. Nothing was guaranteed.
But in the end, it was Justice Anthony Kennedy who provided the fifth and final vote affirming marriage equality and cemented his legacy as the conservative justice that helped bring same-sex marriage to the country. And that is why Obergefell is, at its core, a fundamentally conservative decision.
Packed into all of Kennedy’s flowery prose about the beauty and dignity of partnership is a reaffirmation of committed love in a very traditional sense. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” Kennedy writes in his concluding paragraph.
Sex. Abortion. Parenthood. Power.
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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.
That passage still chokes me up. It’s beautiful. It’s also inherently conservative. And, frankly, it’s a little weird to use it to celebrate a win for equality when the history of marriage that Kennedy recites is not one of “two people” becoming something “greater than once they were.” It’s a historical institution that evolved from a way for men to trade wealth vis-a-vis dowry and to control procreation by criminalizing it outside the construct of the marriage to one that helps to sort and assign benefits from the state. Yes, marriage has evolved to become more inclusive, but there’s nothing inherently “equal” in the institution historically.
Even with that inclusivity in mind, as the glitter settled Friday, many advocates also reminded us that the right to marry is the beginning, not the end, of the fight for equality. It’s still legal in many states to fire someone because of their sexual orientation or identity, for example. Or to deny them housing. But Obergefell says nothing about this reality, despite the fact that the case had before it the question of just how far the 14th Amendment’s equal protection and due process guarantees stretch. Kennedy didn’t explain why the 14th Amendment doesn’t tolerate discrimination on the basis of sex or sex-stereotypes, which is what bans on marriage equality are rooted in. Nor does the opinion actually address the substantive rights of LGBTQ people by setting forth a clear—or at least clearer—constitutional standard of how discrimination against LGBTQ persons is sex-discrimination. By elevating marriage as this “most profound” union, Kennedy’s opinion overlooks all of the actual ways the law continues to allow actual discrimination.
In addition to the missed opportunity to really issue a strong decision for equal rights, Justice Kennedy’s practically nonexistent constitutional analysis leaves huge gaps conservatives will exploit via claims of religious freedom to discriminate. Chief Justice Roberts’, meanwhile, sets the trail of crumbs for the protest lawsuits conservatives will inevitably file in a mere two paragraphs in his dissent in Obergefell. “Today’s decision, for example, creates serious questions about religious liberty,” Roberts wrote. “Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.”
Roberts continued, “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.”
We’ve heard these kinds of concerns before. They form the basis of the objections to employer coverage of contraception; of the quest for religious exemptions to the proposed Employment Non-Discrimination Act; and of efforts to expand so-called religious freedom bills in states. And we will continue to hear them in the wave of conservative protest lawsuits that will be filed in the wake of Friday’s decision.
The good news is these are arguments we are well positioned to address, losses in Hobby Lobby and Wheaton College notwithstanding. Thanks to the work of gender equality advocates starting with Justice Ruth Bader Ginsburg, we have both a line of case law and recent executive agency decisions that will light the way forward for advocates and potential allies to shore up their defenses in the face of “religious freedom” arguments and drag the law forward to ensure adequate protection for everyone under the 14th Amendment.
Chai Feldblum, the Obama-appointee commissioner of the Equal Employment Opportunity Commission, has made the case that Title VII, the federal anti-employment discrimination law, protects against workplace discrimination on the basis of sex and sex stereotypes. “[A]ssume a male employee is fired because he marries another man,” she wrote in The New York Times. “The reason for that employee’s firing makes reference to the sex of the people involved, and the antipathy to marriage by a same-sex couple is deeply embedded in a history of gender roles and sex stereotypes. From my perspective, that is a simple case of sex discrimination.”
This is an important, affirmative position for the agency to make as conservatives begin to argue, in the wake of the Obergerfell ruling, a religious objection to providing parental leave benefits to same-sex married couples, for example. And there is really nothing in the Hobby Lobby decision to prevent them from doing so; to have one of the Obama administration’s leading policy voices out ahead of this issue is smart policy and politics.
Meanwhile, the Department of Justice announced in December its position that Title VII also prohibits discrimination against transgender people. This is a reversal of previous departmental policy.
And to the extent that Kennedy’s opinion in Obergefell fails to address how courts should judge sex-stereotype discrimination like the kind underscoring anti-LGBT laws, Judge Nina Pillard of the D.C. Circuit Court of Appeals is there to fill in the gaps. Prior to her appointment to that court, Pillard was one of the most important figures in advancing gender-equality litigation, helping the Clinton Administration win the landmark United States v. Virginia, the case that successfully challenged the Virginia Military Institute’s exclusively male admissions policy. The exclusive military school justified not admitting women on the “inherent” differences between men and women. The Supreme Court, in a decision written by Justice Ruth Bader Ginsburg and joined by Kennedy, rejected VMI’s argument, holding that policies that result in gender-based discrimination, including discrimination based on gender stereotypes, need an “exceedingly persuasive justification” to stand.
As a Judge on the D.C. Circuit Court of Appeals, Pillard authored one of the strongest defenses of the Affordable Care Act’s birth control benefit, rejecting in a detailed opinion in Priests for Life the exact same religious liberty arguments Roberts sets out in his Obergefell dissent. By the way, Priests for Life recently filed a request with the Roberts Court to take up its case. If the Court takes the case, it would put Pillard’s analysis and reasoning squarely before Kennedy. This is good news for our side.
As is, I think, the fact that Kennedy joined the Virginia decision. Hopefully that means that at some level, beyond the flowery language of dignity and his opinions in the abortion cases that are pretty much silent on the dignity of the pregnant person, Justice Kennedy gets it. Or is getting it. Maybe. Maybe he does understand, from a constitutional standard, that the 14th Amendment means nothing if it does not reach the darkest corners of our institutional bias that are less obvious than state-level bans on same-sex marriage. Maybe he is just deliberately allowing the connection between liberty and the dignity of wanting the state out of your private life, regardless of whether the issue is marriage or abortion, percolate a bit more. Maybe now that he’s seen through the religious objections conservatives make to marriage equality, he can see through those they make to gender equality like they did in Hobby Lobby. Maybe.
That doesn’t mean we shouldn’t celebrate Obergefell. We should! It’s an important win that brings with it real benefits beyond “dignity” for the LGBTQ community, including tax benefits, spousal death benefits, and parental rights, just to name a few. Let’s be honest, too, those wins don’t come frequently enough from the Roberts Court.
But I’m also looking forward to one day writing the piece on the Court’s embrace of a radical political love. A love not rooted in patriarchy and a love that does not depend on conservative ideologies like those on display in the Obergefell opinion. A love that explodes gender and sex stereotypes and is truly free. I know better than to expect that decision to come from the Roberts Court. But with Pillard, Feldblum, and others working on this issue daily, I’m optimistic we’re not too far away.