Marriage Inequality Stalks Again

States are ramping up efforts to undermine the Obergefell decision, mostly without a constitutional leg to stand on.

gay marriage cake

When the news broke Saturday that Supreme Court Justice Antonin Scalia had died, among many other reactions, I was curious how the Republican presidential candidates would respond in that evening’s debate. One thing I was not expecting was for Senator Marco Rubio to evoke, unintentionally, in his closing statement a justifiably famous line from a Scalia dissent: When Senator Rubio uttered the line, “We’re going to be a country that says that marriage is between one man and one woman,” I was reminded of “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”

Yes, opposition to same-sex marriage ought to be dead, but it’s nevertheless stalking U.S. politics again, frightening — well, no one in particular, because marriage equality is the law of the land, and it’s not going away any time soon and it’s certainly not frightening the little children, who by and large lack their parents’ and grandparents’ prejudices).

In any event, once I got past that famous Scalia quip (originally about the Lemon test for the constitutionality of government actions concerning religion), my next thought was: WTF?  Aren’t we done with this?

No, says Senator Rubio. Apparently he’s been beating this drum for a while and I just haven’t heard it. And he later clarified that he is not calling for a constitutional amendment limiting marriage to opposite-sex couples, but instead for appointing conservative federal judges and using the presidency as a platform for speaking out against marriage equality.

Well, good luck with that, Senator. In the meantime, the Senator’s words made me wonder: aside from one-off displays of asinineness like Kim Davis’s, what else is going on in the world of anti-gay bigotry and the law?

I’d heard social media screaming about how Michigan was looking to pass a new law criminalizing sodomy, but it turns out that was bunk.

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But in other states there are real efforts to roll back LGBT rights, ranging from the creative to the so-obviously-unconstitutional-it-hurts. In the latter category, there’s Tennessee’s House Bill 1412 and Senate Bill 1437, styled the Tennessee Natural Marriage Defense Act. Here’s some sample language from section 1(c) of the bill: “Any court decision purporting to strike down natural marriage, including Obergefell v. Hodges, 576 U.S. ___ (2015), is unauthoritative, void, and of no effect.” Um, ok. Like I said to Senator Rubio: good luck with that.

In the more creative vein are state laws purporting to protect individuals’ religious freedom to disapprove of same-sex marriage. These laws’ protections range from the obvious — pastors can’t be made to officiate weddings that conflict with their religious beliefs — to the questionable — functionaries like Kim Davis can’t be censured for failing to do their jobs. A Georgia bill styled the First Amendment Defense Act of Georgia is one of these “religious freedom” laws. Its core provision is to bar government from taking action against any person who “acts in accordance with a sincerely held religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman or that sexual relations are properly reserved to such a marriage.” This sounds innocuous enough, until you think through the consequences, like University of Georgia Ph.D. candidate Anthony Kreis has done:

It would eviscerate every local nondiscrimination protection in public accommodations, housing, and employment that protects individuals on the basis of sexual orientation and, perhaps, even with respect to sex and familial status. SB284 permits a same-sex couple to be turned away from a bakery, a florist, or caterer for wedding services. A single mother could be fired from her job with impunity. A gay person could face eviction from their home with no relief.

Yeah, that’s pretty bad. Thankfully, Kreis points out that the bill is also constitutionally defective, given that it is unabashedly viewpoint-discriminatory.

Still, though, efforts like these show that there is still a real effort to undermine LGBT progress going on in state legislatures around the country — and plenty of work for public interest lawyers to do challenging bills before passage and laws afterward.

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Before we close out this post, I think it’s only fair that we include some additional lines from Justice Scalia — these, from his dissent in Lawrence v. Texas, where he correctly predicted that that case’s reasoning would eventually require the Court to hold that same-sex marriage was protected under the Constitution:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution?”

If marriage advocates hadn’t already laid out an analytical plan of attack, they’d only have had to follow Justice Scalia’s lead. So, even if Justice Scalia didn’t join the Obergefell majority, let us recognize that he still did his part for the cause of marriage equality.


Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.