I Do! Now What?

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This article originally appeared in the Summer 2015 issue of Ms. Click here to subscribe and  get the full issue in your mailbox or inbox!

“The nature of injustice is that we may not always see it in our own times,” Justice Anthony Kennedy wrote in his recent opinion for a 5-4 Supreme Court majority in Obergefell v. Hodges, which held that same- sex couples enjoy the same constitutional right to marry as everyone else.

It shouldn’t come as a surprise that it took us a long time to see, and finally to right, the particular injustice of marriage equality. But as the feminist, civil rights and now the LGBT movements have shown, decades of grassroots organizing, legislative efforts, public education and litigation can shine a spotlight on injustice, and by doing so, change a nation.

What many of us are wondering is what happens next. LGBT-equality activists will go on to celebrate new victories but will also suffer the inevitable setbacks. As we face these challenges, we have much to learn from the lessons of the reproductive-rights movement over the past 40 years. The religious right has rolled back reproductive rights by refocusing the debate on religion and morality, and it looks to attempt the same when it comes to LGBT rights. Yet bolstered by the Obergefell opinion and its broader promise of equality, the LGBT-rights movement may be in a stronger position to combat those efforts. And LGBT advocates’ success in thwarting the religious right could open up new possibilities for women’s reproductive freedom.

On April 28, 2015, lawyer Mary Bonauto, the civil rights project director at Gay & Lesbian Advocates & Defenders (GLAD), stood before the nine justices of the U.S. Supreme Court on behalf of the plaintiffs in Obergefell and argued that the Constitution’s guarantees of privacy, liberty and equality compel the recognition of same-sex couples’ fundamental right to marry. She and her colleagues in the LGBT-rights movement had made similar arguments time and again over decades, advancing them through state and eventually federal courts. When Obergefell reached the Supreme Court, it was one of many same-sex marriage cases being litigated by a nationwide team of LGBT legal advocates—all with the hope of reaching the Supreme Court at the right point in time.

With Obergefell, the time was right. And Kennedy’s ruling may well be remembered as much for its aspirational prose as for its legal conclusions. Writing for himself and the court’s four liberal justices, he based the opinion on the legal recognition that marriage is a “fundamental right”— an interest so important to a person’s liberty that the state may not infringe upon it. Kennedy describes marriage as a personal choice “central to individual dignity and autonomy,” and one that “define[s] personal identity and beliefs.” This part of the opinion draws on the long history of reproductive-rights jurisprudence that helped define constitutionally protected spheres of privacy.

Yet his opinion wasn’t just about the singular importance of marriage (an argument that could have rendered marriage equality a stand-alone victory for gays and lesbians). Embedded throughout Kennedy’s almost poetic language is another core theme: that gay and lesbian individuals are entitled to equal treatment under the law. It is no coincidence that the penultimate sentence of his opinion trumpets the constitutional guarantee of “equal dignity in the eyes of the law” for same-sex couples. These and other passages recognizing marriage discrimination as a matter of inequality may hold the promise of future LGBT rights.

The next frontier in this struggle is already taking shape. Despite record public support for LGBT equality, no federal law explicitly protects LGBT individuals from discrimination in employment, housing or public accommodations. More than half of the states lack such protections.

LGBT advocates are looking to close these gaping holes. Rep. David Cicilline (D-R.I.) and Sen. Jeff Merkley (D-Ore.) have introduced the Equality Act, which would amend the Civil Rights Act to include sexual orientation and gender identity. Their legislation would also add sex to Title II, which prohibits discrimination in public accommodations. On a parallel track, LGBT legal advocates are winning cases by interpreting existing sex-discrimination laws to protect LGBT people, the theory being that it is impossible to discriminate against someone for being gay or transgender without taking into account their sex. And, of course, many advocates remain committed to an Equal Rights Amendment to the Constitution, which could stamp out discrimination based on gender, gender identity and sexual orientation.

While pro-equality forces are heartened by the recent victory on marriage, those opposed are responding in predictable ways. The denial and defiance that characterized the first wave of opposition to Obergefell have given way to more subtle and strategic forms of resistance. This latest chapter is being writ- ten in the name of “religious freedom.” Unchallenged, it has the power to gut the promise of LGBT equality.

Legislation designed to grant legal immunity to nonprofits, individuals and private companies that discriminate against LGBT individuals is gaining momentum in Congress. The bill deceptively titled the “First Amendment Defense Act” has more than 100 co-sponsors. This federal legislation is exceedingly broad and would prohibit “discrimination” by the federal government against any nonprofit, individual or business that expresses religious or moral opposition not only to marriage between same-sex individuals but also to same-sex sexual relations; its adoption would hark back to the days when same-sex intimacy itself was a crime.

This federal legislation mirrors ongoing efforts on the state level to legally condone discrimination against LGBT individuals. Just this spring, Indiana Gov. Mike Pence (R) signed into law the Religious Freedom Restoration Act, which many feared would have permitted broad discrimination against LGBT individuals by businesses. After an outcry from business leaders and LGBT supporters, the law was amended to offer some protection against discrimination based on sexual orientation or gender identity.

One might ask: Aren’t these efforts by the right relatively benign? So what if you can’t buy a wedding cake from a bigot? Let the LGBT community patronize businesses that actually want their money.

The problem is that state-sanctioned discrimination by businesses and individuals does more than delay the planning of a wedding. Discrimination in any form is damaging. It perpetuates social, personal, emotional and community harm. Moreover, while it is one thing to live without explicit legal protection against discrimination—to lack a shield—it is quite another for the state to sanction discrimination against you and those like you—to arm offenders with a sword. Our country has already experienced legally sanctioned discrimination by businesses; being barred from the lunch counter was more than mere inconvenience.

This is where the language in Obergefell is so important; it recognizes the equality interests of LGBT individuals, not just the importance of the institution of marriage.

As Kennedy explained, state- sanctioned discrimination that carves out LGBT individuals and their families from all others, whether in the name of religion, morality or any other theory, causes the children of LGBT couples to “suffer the stigma of knowing their families are somehow lesser. …[And] it demeans gays and lesbians for the state to lock them out.” Obergefell thus suggests that one person’s freedoms must logically end at the point where they impinge on another’s.

So-called religious-freedom laws also perpetrate a more subtle harm. They intentionally and effectively manipulate the debate on discrimination, twisting the meanings of “victim” and “perpetrator.” What starts as a subtle shift of rhetoric, easily dismissed, can soon become reality. This tactic is telegraphed in Obergefell’s four dissenting opinions. The justices who wrote them sound an alarm of religious oppression, predicting a world in which gays and lesbians enjoy a legal super-status, free to trample on the rights of the religious.

Chief Justice John Roberts’ dissent ponders the impact on religious schools and charities, which he fears risk losing their tax-exempt status for failing to fall in line. Justice Clarence Thomas warns of churches being forced to participate in civil marriages between same-sex couples. Prominent in the dissents are the seeds of the new doublespeak, in which those who hold “traditional ideas” become the real victims of discrimination. Justice Samuel Alito suggests that Obergefell “will be used to vilify Americans who are unwilling to assent to the new orthodoxy” and will “stamp out every vestige of dissent.” Using language verging on apocalyptic, he writes, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots.”

These rhetorical tactics have the potential to be enormously effective. And for those of us who have followed the long struggle for women’s rights, it feels like déjà vu.

More than 50 years ago, in Griswold v. Connecticut, the Supreme Court held that the right to privacy included the right of married couples to make personal decisions about the use of contraceptives. The opinion ushered in a new era of women’s control over their bodies, the number and timing of their children, and their ability to participate more fully in nondomestic spheres. In 1973, the court handed down Roe v. Wade, which granted women an unobstructed right to abortion in the first trimester of pregnancy and a very broad right to abortion in the second trimester. Roe was a transformative victory for reproductive rights— just as Obergefell is for the LGBT movement.

Significantly, however, both Griswold and Roe were based on the constitutionally protected right to privacy. Arguments of reproductive rights as a matter of equality under the constitution gained little formal traction in these cases or their progeny.

Sure enough, these legal victories have been significantly eroded by state and federal legislators, whose efforts have largely been green-lighted by our federal courts. Women seeking abortion, sterilization and even contraception must now navigate a patchwork of restrictions that render access very much a question of one’s ZIP code.

What is instructive for the LGBT movement is how successfully abortion opponents have reframed the debate, shifting the focus away from women’s rights and instead championing a set of carefully crafted countervailing interests: religious and moral objectors, fetuses and even “traumatized” women themselves. These “new victims” in the reproductive-rights debate, initially shrugged off, gained legitimacy over time and are now eclipsing the privacy- based rights to reproductive health recognized by the courts.

Shortly after Roe v. Wade was decided, opponents of abortion began stoking the fears of religious and moral oppression. The narrative shifted away from women’s personal choices and toward the interests of those with sincerely held religious and moral beliefs who were being “forced” to participate in abortions. Anti-choice activists pushed a series of religious-exemption laws that allow doctors, hospitals, pharmacists and other medical professionals to refuse to serve patients with reproductive-health needs. According to the Guttmacher Institute, today, 45 states allow some health-care providers to deny abortion services; 43 allow entire hospitals to deny abortions. Thirteen states allow some health-care providers to refuse services related to contraception, and 18 allow some providers to refuse sterilization services.

Certainly, some of these laws protect the valid religious interests of individuals, but far too many extend protections beyond those bounds, leaving women wondering whether their doctors, hospitals or pharmacists will refuse them the care they need.

As the focus shifted toward protecting other interests from the exercise of women’s rights, it concurrently shifted away from protecting women’s private choices. Indeed, the current debate on reproductive rights scarcely considers women’s rights. (Read the court’s most recent abortion decisions and you will be struck by how seldom women’s interests are invoked.)

This was precisely the narrative that emerged in last year’s 5-4 decision in Burwell v. Hobby Lobby, in which the Supreme Court allowed private, for- profit corporations that claim religious interests to refuse to comply with the contraceptive mandate of the Affordable Care Act. In allegedly “balancing” the religious interests of for-profit corporations against the government’s interest in providing contraceptive access to women, the majority barely acknowledged the importance of contraception to women. Indeed, women’s interests were essentially absent from the majority opinion, in which Justice Kennedy joined.

There is yet another warning embedded in the downward trajectory of reproductive rights. Historic legal victories in the 1960s and ’70s offered the promise of broader women’s equality by treating women’s access to reproductive health care the same as any other essential right. But over time, reproductive- rights advocates have found it challenging to leverage this opening. In large part, they have been limited by the court’s focus on arguments of privacy and its unwillingness to recognize abortion and contraception as issues impacting gender equality. Abortion opponents have capitalized on this, slowly chipping away at equality’s promise by carving out abortion and contraception as somehow different from all other forms of medical care; they’ve made it socially, politically and legally acceptable to subject reproductive health care to regulations and limits imposed nowhere else.

Just as women’s-rights champions rejoiced in the wake of Griswold and Roe, we have much to celebrate in Obergefell: newfound equality in the vitally important institution of marriage, and the court’s promise of something greater. But we also have reason to be vigilant. The seeds of a rhetorical and theoretical undermining of LGBT equality have already been sown.

Fortunately, the marriage movement has had the time and experience to prepare for this backlash. In all the battlegrounds for marriage equality over the past two decades the opposition has largely been powered by religion-based arguments. The LGBT movement has gained fair warning of the arguments’ potential power and legal limits. Also significantly, with the Obergefell opinion the court recognized the foundations of an equal-protection argument against LGBT discrimination. This is a doctrinal advantage the reproductive-rights movement is still working to achieve. As scholars have noted, equality rights may well prove stronger medicine against claims of religious and moral objections than privacy rights. Relying on arguments of equality and nondiscrimination, LGBT legal organizations are already pursuing litigation against attempts to justify LGBT discrimination by asserting religious beliefs—such as GLAD’s Barrett v. Fontbonne Academy, in which a college prep school fired an employee in a same-sex marriage. Time will tell whether the equality- rights argument prevails.

Meanwhile, will America’s recent contradictory patchwork of marriage laws be replaced by a patchwork of varying state laws permitting discrimination? Will the battle between so-called religious freedom and LGBT individuals become the new debate, supplanting real questions about the dignity and equality of a community that still has so far to go? Will LGBT rights, like reproductive rights, be relegated to a class of their own, different from other civil rights and compelled to occupy a position of legal outcast?

Justice Kennedy wrote in Obergefell, “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.” As the LGBT community takes one step closer to equal liberty, it cannot take that full promise for granted. But if advocates are able to capitalize on Obergefell’s embrace of LGBT equality and dignity to effectively combat religious backlash, their victories might very well bolster the reproductive-rights movement in its decades-long battle against the same threats.

Photo via Wikimedia Commons

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About and

SARAH R. BOONIN is an associate clinical professor of law at Suffolk University Law School in Boston, teaching in the areas of mental health and disability law, women's reproductive health and legal ethics.
JANSON WU is executive director of Gay & Lesbian Advocates & Defenders.