USA TODAY International Edition
Five years after landmark ruling, new battles loom
Slate of religion cases may impact LGBT rights
WASHINGTON – Five years after the Supreme Court’s landmark decision extending marriage rights to gay men and lesbians nationwide, same- sex marriage has become “so not a big deal.”
That’s the assessment of Hillary Goodridge, one of 14 people whose lawsuit led Massachusetts in 2003 to become the first state to sanction gay and lesbian marriages. Twelve years later, by a 5- 4 vote, the high court made it 50 states.
Today, the constitutional right announced by five justices on June 26, 2015, has become old hat. More than 500,000 same- sex couples in the United States are married, including about 300,000 who have wed since the 2015 ruling. Goodridge and her partner at the time, Julie Goodridge, have married, divorced and raised a daughter.
But despite gains in legal rights, economic status, public acceptance and emotional well- being, the LGBTQ community faces continued challenges from the Trump administration and religious groups in areas ranging from adoption and foster care to the rights of transgender people to join the military or use the bathroom that corresponds with their
“There’s a very determined effort to redraw the boundaries and to allow very, very broad religious exemptions from law in American life.” Mary Bonauto, LGBTQ rights lawyer
gender identity.
“This sometimes feels to me like the last roar of the dinosaurs,” Hillary Goodridge says. By contrast, she says, “once you go to a same- sex wedding, it's hard to fire the person for being gay the next day.”
The Supreme Court extended workplace protections nationwide last week for the LGBTQ community, ruling 6- 3 that a landmark civil rights law barring sex discrimination in the workplace applies to gay, lesbian and transgender workers.
But the court's majority, led by conservative Associate Justice Neil Gorsuch, did not close the door on religious exemptions, saying “other employers in other cases may raise free exercise arguments that merit careful consideration.”
The court already is considering four major religion cases, including several with implications for gay, lesbian and transgender people. One of them, to be heard next fall, will decide if foster care agencies with religious objections can turn down gay and lesbian couples.
Those seeking religious exemptions “are feeling intense public pressure ... to get with the LGBT program or otherwise disappear,” says John Bursch, who argued the 2015 same- sex marriage case on behalf of four states that opposed marriage equality – Michigan, Ohio, Kentucky and Tennessee.
Now vice president of appellate advocacy at Alliance Defending Freedom, a conservative legal group, Bursch is among those who still define marriage as between one man and one woman and continue to defend the rights of religious opponents.
“You may see all of this walked back,” he warns of the legal gains made by the LGBTQ movement in recent years. “Eventually, it's not love that wins. It's truth that wins.”
A question of ‘ equal dignity’
The high court's 5- 4 decision that states cannot deny marriage rights to gay men and lesbians was handed down on June 26 – the same date as earlier landmark LGBTQ rulings against state sodomy laws in 2003 and the federal Defense of Marriage Act in 2013.
“They ask for equal dignity in the eyes of the law,” said Associate Justice
Anthony Kennedy, who also wrote the previous LGBTQ decisions and has since retired. “The Constitution grants them that right.”
The tenuous nature of Kennedy's majority was evident when Chief Justice John Roberts – now the closest thing to a swing vote on the court – summarized his dissent from the bench for the only time in his 15 years.
“Today, five lawyers have ordered every state to change their definition of marriage,” Roberts said. “Just who do we think we are?”
The ruling in Obergefell v. Hodges ended a legal battle that had brewed in the states for 45 years, from Minnesota in the 1970s to Hawaii in the 1990s and New England after the turn of the century. The penultimate turning point came in 2013, when the court forced the federal government to recognize same- sex marriages and allowed them to resume in California.
Jim Obergefell was determined not to miss out when the justices announced their 2015 decision. The lead plaintiff, whose marriage to longtime partner John Arthur was not recognized by their home state of Ohio before Arthur died of ALS, was in line early for the court's last four decision days in order to guarantee himself a seat.
“I still remember the complete and utter sense of celebration and joy on the plaza outside the courthouse,” he says now. “The air was electric.”
‘ Gifts that keep on giving’
Looking back, the victory is equally gratifying to those like Evan Wolfson, founder of the Freedom to Marry campaign; James Esseks, director of the American Civil Liberties Union's Lesbian, Gay, Bisexual, Transgender & HIV Project; Roberta Kaplan, who represented Edie Windsor of New York in the 2013 case that forced the federal government to recognize same- sex marriage; and Mary Bonauto, the nation's leading LGBTQ rights lawyer, who won both the Massachusetts case in 2003 and the Supreme Court case in 2015.
Support for same- sex marriage in Gallup polls, at 58% in 2015, has risen as high as 67%. It's a sign, Kaplan says, that “no other civil rights movement in American history has achieved so much in so little time.”
“The marriage win and, more broadly, the marriage conversation that led to the win continue to be the gifts that keep on giving,” Wolfson says.
Whether it continues to give or the Supreme Court begins to take back remains to be seen. Several battles loom over religious exemptions and transgender rights, and both sides are dug in.
The Trump administration has added fuel to those fights with efforts to roll back protections for the LGBTQ community. It has sought to cut transgender rights, most recently in health care, while opposing Democrats' efforts in Congress to extend protections into areas such as education, public accommodations and financial credit.
When the administration in 2017 withdrew guidance to schools instructing them to grant transgender students' bathroom preferences, it ended a 17year- old Virginia high school student's court battle to use the bathroom corresponding to his gender identity.
A year later, the Supreme Court absolved a Colorado baker of discrimination for refusing to create a custom wedding cake for a same- sex couple. The decision left unresolved whether other opponents of same- sex marriage, including bakers, florists, photographers and videographers, can refuse commercial wedding services to gay and lesbian couples.
Transgender rights and religious exemptions “are the two big buckets of work that lie ahead for the LGBT movement,” Esseks says. “It's about health care. It's about whether people will lose their jobs or won't be hired in the first place. It's about whether kids will be kicked out of schools.”
Kaplan expects the Supreme Court to work out compromises when the Constitution's equal protection and free exercise clauses come into conflict. While a minister does not have to perform a same- sex wedding but a mayor can't block one, she says, “the tough stuff is everything in between.”
To Bursch, religious believers have the winning arguments about marriage in areas such as anthropology, biology and child- rearing.
“What interest does the government have in love?” he says. “What's love got to do with it? Absolutely zero.”
Not so, says Julie Goodridge, whose marriage to Hillary in 2004 set the standard that hundreds of thousands have followed.
“Would I get married again? Absolutely,” she says.
“I still have this hokey idea of love and marriage going together.”