The historic June 26 U.S. Supreme Court decision on marriage equality has given the LGBT community and our country a new civil right, placing the ruling firmly alongside Brown v. Board of Education and Loving v. Virginia in history. Unfortunately, equality does not mean acceptance and the reality is that the SCOTUS ruling will likely produce new conflicts and intensify old ones.
The most important new conflict will be in deciding where our 14th-Amendment right to marriage begins and where the First Amendment right to religious liberty of people like Ted Cruz and Rick Santorum ends? The minute the decision came down, states like Mississippi, Texas and Alabama refused to issue marriage licenses and other states are introducing laws that allow clerks to refuse to sign or issue a marriage license based on religious objections. Louisiana Gov. Bobby Jindal (R), a possible 2016 presidential contender, plans to support his state’s Marriage and Conscience Act, which would allow both private- and public-sector employees to refuse to recognize same-sex marriages for religious reasons. While the law tries to ensure that an LGBT couple can proceed through the required steps, it’s possible (and actually likely) that all of the clerks in a particular county could refuse on religious grounds, thereby forcing people to shop from county to county in search of someone willing to sign their marriage license.
To be clear, the majority opinion upholds the First Amendment, but the dissenters, and every religious conservative I’ve spoken to this week, are more skeptical. Chief Justice Roberts went so far as to state that “people of faith can take no comfort” in the ruling, despite the clear language by Justice Kennedy, who emphasized that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” His statements on religious freedoms seem pretty straight-forward (no pun intended!) but somehow Roberts found a way to read into what’s not there. He argued in his dissent that while “[t]he majority graciously suggests that religious believers may continue to ‘advocate’ their views of marriage, the First Amendment guarantees the freedom to ‘exercise’ religion and, ominously, that is not a word the majority uses.”
Fundamentally, Roberts is arguing that Obergefell vs. Hodges has somehow curtailed the First Amendment and he, along with the other three dissenters, have created a firestorm among the conservative right which, in my opinion, will breathe new life into all of the Religious Freedom Restoration Act cases we saw back in April. Amid the “bakery,” “pizza” and “wedding gown” cases where LGBT individuals were denied services for their weddings based on private business owners’ religious beliefs, more than 100 anti-LGBT bills were introduced in 29 states — all centered on religious freedoms and all intentionally vague.
Many people have asked me how the conservative right can undo or dull the effects of Obergefell vs. Hodges. Last year’s Hobby Lobby decision may be the legal precedent that LGBT opponents rely on. In this case, SCOTUS ruled that “closely held corporations” can decline to provide coverage for birth control in health-care plans they offer to their female employees if the coverage would violate the owners’ religious beliefs, prompting a firestorm between religious groups and LGBT-rights advocates. Within days, President Obama received a letter signed by more than 100 religious leaders, asking him to “respect this vital element of religious freedom” by exempting religiously affiliated groups from adhering to the LGBT nondiscrimination protections contained in his executive order prohibiting federal contractors from discriminating on the basis of sexual orientation or gender identity.
The next presidential election will be significant, as it is likely that the next president will appoint several Supreme Court justices. Roberts is the youngest and will likely be with us for the long haul. If the court is filled with Roberts and Scalia-esque appointees, not only will future litigation be decided against LGBT rights but, over time, Obergefell vs. Hodges’ holding could be chipped away. I implore the entire LGBT community to not become complacent at this very important juncture, especially the young LGBT generation, who has grown up in a predominantly safe and accepting world. Bigotry disguised as religious liberty is still bigotry, and the fight for newly minted constitutional rights is about to intensify.