It was exactly two years ago that the Supreme Court ruled in Obergefell v. Hodges that marriage equality is the law of the land. But Monday morning [June 26], the Supreme Court confirmed that the fight for same-sex couples’ legal equality is hardly over.
The Court took two actions related to same-sex couples on Monday. The first was reversing an Arkansas Supreme Court decision blocking a same-sex spouse from being listed on her own child’s birth certificate. The second was agreeing to consider the case of the Colorado baker who refused to sell a wedding cake to a same-sex couple on religious grounds. While the former is good news, a closer look reveals that both decisions represent unsettled questions for the queer community.
In Arkansas, the law in question stated that when a woman has a baby, her husband should be named the father, even if a different sperm donor was knowingly used. This same precedent was not applied, however, to a same-sex couple; only the birth mother was listed and not her wife. Further revealing the double standard, the state likewise issues new birth certificates that recognize adoptive parents. So the Supreme Court concluded that this is a clear violation of Obergefell, which calls for same-sex couples to be treated equally under the law, including — explicitly — in regards to birth certificates.
But three of the justices still dissented, led by newly appoint Justice Neil Gorsuch. Gorsuch claimed that the Arkansas law was a “biology based birth registration regime,” even though there was clearly no integrity to such a claim, given the many ways a non-biological parent could still end up on an Arkansas birth certificate. The fact that three justices were willing to embrace this obvious distortion shows how narrowly Obergefell can be interpreted. If the Court membership changes in the coming years, it wouldn’t take too many more conservative votes to start seeing rulings going in the opposite direction.
The Arkansas case is hardly an exception to the number of post-Obergefell cases still being resolved. There have been similar parentage cases in numerous other states — some with similar birth certificate concerns, others with related questions about the legal parental rights of same-sex partners. The state of Texas is still fighting in court for the right to refuse to provide equal benefits to the same-sex spouses of government employees. Though the precedent of Obergefell suggests a favorable outcome for these same-sex couples, the fact that the Supreme Court is still having to chime in on these cases two years later demonstrates how effective conservatives could be in undermining marriage equality just as they have been in preventing access to abortions.
In the Masterpiece Cakeshop case, Alliance Defending Freedom (ADF) is seeking to overturn nondiscrimination protections in the name of “religious freedom,” which makes the Supreme Court’s decision to hear it particularly troubling.
The case was pretty open-and-shut as it traveled through state courts. Colorado has a law prohibiting public accommodations (like businesses that serve the public) from refusing service on the basis of sexual orientation. Back in 2012, when David Mullins and Charlie Craig entered Masterpiece Cakeshop inquiring about a wedding cake, owner Jack Phillips refused to sell them wedding cake services because they were a same-sex couple. In court, ADF argued on Phillips’ behalf that cakes are a matter of “artistic expression” and thus a free speech and “religious freedom” concern, even though the refusal of service took place before any discussion of the cake’s design could take place.
A Colorado appeals court found that Phillips had violated the law, and the Colorado Supreme Court denied his appeal, letting the appellate ruling stand.
In 2014, a year before Obergefell, the Supreme Court declined to hear an almost identical case. In that case, a New México wedding photographer had declined to sell her services to a same-sex couple. The state Supreme Court unanimously agreed with lower courts that the refusal violated the state’s nondiscrimination law protecting sexual orientation, and the U.S. Supreme Court decided not to interfere. Now, by taking the Colorado case, the Court is demonstrating a new willingness to interfere.
It takes four justices to agree to take a case, which suggests that there are four votes now willing to hear out ADF’s arguments that “religious freedom” should entitle a vendor to refuse services based on the sexual orientation of their clientele. A single change in the membership of the Court could provide a fifth vote — if it’s not already there.
If the Supreme Court concludes that religious beliefs trump nondiscrimination protections, it could devastate civil rights — including for protected groups beyond the LGBTQ community. If a decision in Phillips’ favor is written quite broadly, it could allow the same logic to then justify refusing service to interracial or interfaith couples. The only way around that conclusion would be for the Court to declare that sexual orientation is not a legitimate, innate aspect of identity like race or religion, which could open the door to even more forms of discrimination against LGBTQ people.
Perhaps the most devastating consequence from such a decision would be the extent to which religiously-affiliated hospitals — often the only major medical facilities many people across the country have access to — could deny services to LGBTQ people. If religious beliefs trump other legal protections, it’s unclear what, for example, would then stop a Catholic hospital from denying a same-sex spouse visitation, given that the Catholic Church opposes same-sex marriage. Giving religious beliefs room to supersede equal treatment under the law opens a Pandora’s Box of possible abuses.
Though both these cases relate specifically to same-sex couples and the issue of sexual orientation, they certainly indicate how vulnerable transgender people are as well. National education on transgender identities still lags behind education on same-sex orientations, so a ruling rejecting the legitimacy of those orientations could easily create room for justifying discrimination against transgender people. Though some courts have ruled that trans people are already protected under laws that bar discrimination on the basis of sex, there is not consensus. Certainly, a Supreme Court willing to reject the legitimacy of homosexuality and bisexuality would be capable of rejecting the legitimacy of transgender identities in turn.
Marriage equality was a big win, but two years later, the fate of LGBTQ equality remains incredibly fragile. President Trump’s administration and the Republican majority in Congress have demonstrated a willingness to roll back LGBTQ protections, and Republican-controlled state legislatures are continuing to pass blatantly discriminatory laws. The Supreme Court’s willingness to entertain limitations to LGBTQ equality should be a wake-up call for anybody content to accept that the current status quo is good enough.
by Zack Ford
Zack Ford is the LGBTQ Editor at ThinkProgress.org.