Marriage Equality Is the Law of the Land: So Where Do We Go from Here?

By now everyone knows that on June 26 the U.S. Supreme Court issued a landmark decision extending marriage equality nationwide.

The five-to-four ruling in Obergefell v. Hodges was written by Justice Anthony M. Kennedy, an appointee of President Ronald Reagan and a staunch Roman Catholic. Kennedy, who leans to the right on many other issues, has been sympathetic to LGBT rights for some years. His majority opinion, which includes some eloquent passages, will undoubtedly stand as his court legacy.

The morning the ruling was issued, I was hunched over a computer at my office in Washington, DC, monitoring the SCOTUSBlog, an independent website run by attorneys and reporters who write about the high court. Tens of thousands of people all over the world were engaged in the same ritual, and shortly after ten o’clock (EST), we all read the same one-word news flash on the site’s live blog: “Marriage.”

For about a minute we knew the decision had come down but weren’t sure which way it had gone. Soon the good news came: the majority, citing the Equal Protection Clause of the Fourteenth Amendment, had brought marriage equality to all fifty states.

Americans United for Separation of Church and State, the American Humanist Association, and other groups hailed the historic ruling. We took some time to celebrate, but not too much. The high court’s decision is gratifying, but we know there is still much work to be done.

What are the next steps? For starters, we have to ensure that the ruling is obeyed. Across the country, government officials and country clerks are vowing to resist the decision. Some clerks are insisting that they have a “religious freedom” right to refuse granting wedding licenses to same-sex couples.

Bear in mind, we’re talking about government employees here. These are workers, funded by the taxpayers to assist all, who have unilaterally decided there are certain individuals they will not help. In some states, these clerks have been ordered to do their jobs or resign. But in others, various “accommodations” are being offered to them.

This continues the treatment of same-sex couples as second-class citizens and creates real harm to dignity. Sure, these couples are told, you can get the service—but you have to come back in three hours or on Tuesday, or you have to go down the hall and see the clerk who’s willing to help “you people.”

This is not acceptable. A government employee’s job is to help everyone who comes through the door seeking things they are legally entitled to have. If clerks don’t want to do that, the answer is for them to resign. End of discussion.

Legal groups backed by the religious right don’t see it that way, of course, so further litigation is inevitable as we strive to ensure that government at all levels accords to every couple their legal right to marriage.

We’ll also face challenges in the for-profit sector. Even before the Obergefell ruling, a spate of cases had reached the courts that dealt with photographers, bakers, caterers, hoteliers, and others who openly declared that they wouldn’t serve the LGBT community.

In states and communities that have laws barring discrimination against gays and lesbians, these business owners can be subjected to fines and legal action. Again, the issue is one of human dignity. Our society decided long ago that denying people goods and services on the basis of factors such as race, religious belief, gender, or national origin isn’t just wrong, it’s immoral.

Increasingly, the LGBT community is being protected by these laws as well. In the wake of Obergefell, we’re hearing calls for a federal law banning LGBT discrimination. (Obviously it would be impossible to push this law through the current U.S. Congress, but Tea Party extremists won’t control that body forever—we hope.)

We’ll also need to be on guard against far-reaching attempts to “nullify” the ruling. Fringe legislators in a few states are insisting they have a right, under some weird interpretation of the Tenth Amendment, to simply declare the ruling null and void.

A more likely gambit is a push for a constitutional amendment to roll back the decision. Rather than go the traditional route of getting the amendment passed by super-majorities in the House and Senate, some on the right are pressuring state legislatures to call for a new Constitutional Convention. It’s unlikely to succeed—but it’s a gambit we must continue to monitor. Most legal experts agree that if a new convention were convened, it couldn’t be limited to one topic. Our entire governing charter, the handiwork of James Madison and other founders, could be rewritten by extremists.

Lastly, some things are happening and will happen that don’t pose a serious threat to the decision but are still annoying. Some religious right activists, for example, are pushing local governments to pass resolutions condemning the Obergefell ruling. These resolutions are symbolic and don’t have the force of law, but they still send a message of exclusion and must be opposed for that reason.

A final thought: while many humanists are pleased that LGBT friends, family members, and coworkers can now enjoy all of the benefits of legal marriage, it’s possible that we might also be feeling a little envious. The LGBT community has made great strides in the past twenty-five years. Nonbelievers are still struggling.

For example, just weeks after the Obergefell decision was issued, the Boy Scouts of America’s national office announced that it was dropping its ban on gay Scout leaders. Nothing was said about the ban on atheists, who are still not welcome to openly participate at any levels of the BSA.

A recent Gallup poll found that 74 percent of voters say they would back a gay candidate for president if they considered him or her qualified, but only 58 percent said they’d back an atheist. That’s the highest that figure has ever been, but it’s hardly worth getting excited about—especially since other polls show it as being even lower.

So, by all means, let’s celebrate the important milestone of marriage equality with our LGBT allies. But it might be wise to do more than party. Let’s take a close look at the impressive advancements this community has made in a relatively short period of time. We may learn some things.