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Obergefell v. Hodges: A dead-end for LGBT civil rights?   

Stephen Menendian, assistant director, Haas Institute for a Fair and Inclusive Society | May 13, 2015

On April 28, 2015, the Supreme Court heard historic oral argument in a set of consolidated cases styled Obergefell v. Hodges involving state-level same-sex marriage bans.[1]  The parties challenging these laws argue that the same-sex marriage bans are discriminatory by targeting gay people, and are an unconstitutional burden on a fundamental right.  Yet, during the course of oral argument, Chief Justice John Roberts interjected a comment that might supply an entirely different basis for resolving this case:

“I’m not sure it’s necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex.”

The Chief Justice’s observation that sex discrimination rather than sexual orientation discrimination may resolve the case has potentially tremendous significance for the future of LGBT civil rights. Despite dramatic evolution in public opinion and law, the issue of same-sex marriage has, for more than a decade, been one of the most divisive debates in American society. As recently as 2012, thirty-five states prohibited same-sex marriage. The Chief Justice’s suggestion may signal to his colleagues and the public a “cooler” way to resolve these cases — one that avoids answering the more difficult and fraught questions of whether and to what degree the United States Constitution prohibits discrimination on the basis of sexual orientation.[2]

This possibility is not far-fetched.  The legitimacy of the judiciary as a governmental institution depends, in part, upon public perceptions of neutrality and impartiality.  For that reason, courts have sometimes sought and adopted more broadly palatable grounds for their rulings.

Although he famously compared a judge’s role to that of an umpire – merely calling balls and strikes – the Chief Justice has responded to crowd pressures, demonstrating keen political astuteness.  During his tenure, the Chief Justice made a concerted effort to reduce the number of split decisions, ostensibly to improve clarity for lower courts, but also to reduce the appearance of political impartiality.

Perhaps the most (in)famous example of such political sensitivity was the surprising resolution of the Affordable Care Act case in 2012. Offending many conservatives, the Chief Justice voted to uphold the Act on a ground that was barely argued, the congressional power to tax.  Some Court observers hailed his decision as a brilliant political move that bolstered a conservative interpretation of the interstate commerce clause while avoiding a major political backlash for the Court, and historical ignominy for himself.

A similar move could be in the offing for Obergefell.  By pivoting from sexual orientation to constitutionally established sex discrimination precedents, the Chief Justice may be illuminating a path to the expected result while foreclosing promising avenues for expanding constitutional protections and civil rights for LGBT persons.

Only 22 states prohibit discrimination on the basis of sexual orientation. In most states, LGBT persons can be legally discriminated against in employment or housing, for example. A decision in Obergefell grounded in constitutional rights and equal protection for same-sex couples would have potent precedential value by establishing new constitutional norms.  For example, such a decision might provide a basis for challenging sexual orientation discrimination in public employment or public benefits. A decision that grounds the result in sex discrimination instead may prove a dead end or cul-de-sac for the gay rights movement, however significant it would be in establishing same-sex marriage rights.

Whether the Chief Justice can succeed in steering the result in that direction will depend on whether he can persuade at least one or more of the liberal Justices, such as Ruth Bader Ginsburg, to adopt that rationale.[3]  If he succeeds, the Chief Justice may be responsible for derailing the momentum for constitutional equality on the basis of sexual orientation, and civil rights for LGBT persons more generally.

A decision is expected near the end of June.
[1] In a landmark case decided in 2013, United States v. Windsor, the Court held, by a narrow 5-4 majority, that the federal government may not refuse to recognize same-sex marriages issued under state law, and thereby deny federal benefits of marriage. Obergefell brings into focus the unanswered questions of whether states may refuse to recognize out of state marriage licenses to same-sex couples, as well as whether the United States Constitution requires states to issue same-sex marriage licenses.

[2] The Petitioners and their amici, including the United States, have asked the Court to subject classifications based on sexual orientation to “heightened judicial scrutiny.”

[3] Such an outcome could result in a 4-2-3 split decision, with three Justices joining an opinion by Justice Kennedy, one Justice joining Chief Justice Roberts, concurring in the result, and three Justices dissenting.

Comments to “Obergefell v. Hodges: A dead-end for LGBT civil rights?   

  1. Broadening the definition of sex discrimination per the EEOC to include sexual orientation is not the same thing – nor as powerful, symbolically or legally – as recognition of sexual orientation as a constitutionally protected class under some form of heightened scrutiny.

    In addition, a Supreme Court decision on the grounds outlined in the blog could easily be cabined on the basis of a dyad that does not apply to plaintiffs in a range of other contexts.

  2. Actually, the sex discrimination argument would be the opposite of a cul de sac; it’s a straight road to broadening the Civil Rights Act ban on sex discrimination to include protectionist LGBT status.

    The EEOC has been asserting of late that gender stereotyping is a form of sex discrimination. Discriminating against a gay or transgender employee because he doesn’t date or dress like an employer thinks a “real man” is supposed to (or against a lesbian or trans woman not behaving like a “real woman”) is gender stereotyping.

    Circuit courts have rejected this argument thus far, but the Supreme Court using sex discrimination as the basis to endorse marriage equality would be cited in support of LGBT gender stereotyping lawsuits (by the EEOC and private parties) under the Civil Rights Act.

    Of course even without the sex discrimination argument, LGBT status should already be protected by federal employment law. Homosexuality was considered a psychiatric disorder until 1973 (and transsexuality until 2012). Since LGBT status is still perceived by many non-psychiatrists as a mental abnormality, it is a perceived disability protected by the Americans with Disabilities Act.

    Per the EEOC, “Under the ADAAA and the EEOC’s regulations, a covered entity “regards” an individual as having a disability if it takes an action prohibited by the ADA (e.g., failure to hire, termination, or demotion) based on an individual’s impairment, or on an impairment that the covered entity believes the individual has…”

  3. As Bursch pointed out, sex discrimination cases have always involved two classes, two genders, being treated differently and that is not the case here. Treating classes of men and women differently is not at stake. Also, again as Bursch points out, the court has ruled that it’s appropriate to draw lines related to sex discrimination if it involves biology. Again, that is not related to the case here here.

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