Marriage Won, Gay Rights Battle Moves to Religious Liberty Laws

Inside the Supreme Court's Gay Marriage Ruling

The U.S. Supreme Court may have written the most consequential words in the history of gay rights with its recognition of same-sex marriage. But those words won’t be the last.

While such unions were already legal in most of the U.S. before Friday’s ruling, 28 states don’t have laws prohibiting discrimination against lesbian, gay, bisexual and transgender people. Individuals in those states who lose their jobs or are refused an apartment because of sexual orientation don’t have the same rights as people elsewhere, a fact largely unchanged by the landmark decision.

“They can get married, as is their legal right, and show up at work the next day and get fired,” said Camilla Taylor, an attorney with the gay rights advocacy group Lambda Legal.

The court’s ruling follows Thursday’s blockbuster opinion upholding a key component of President Barack Obama’s 2010 health care law. An earlier Supreme Court decision on Obamacare, however, may have the effect of perpetuating differences among states in how they view gay rights.

In a 5-4 ruling last year, the court said private companies can cite religious grounds to refuse workers insurance coverage for birth control. That case spurred some states to adopt measures protecting business from lawsuits when they refused services to gay couples. Since then, lawsuits both against and in support of such laws have proliferated.

More Litigation

Jim Campbell, a lawyer with the Scottsdale, Arizona-based Alliance Defending Freedom, said more same-sex marriages will inevitably result in more litigation when gay rights collide with the rights of those who assert faith-based objections.

“There are some cases where a court should come out on the side of religious liberty,” said Campbell, whose organization opposed gay marriage in California and elsewhere.

In Friday’s 5-4 majority opinion, Justice Anthony Kennedy made clear that such challenges are not barred under the ruling.

“It must be 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,” Kennedy wrote.

American Civil Liberties Union attorney James Esseks concluded that “there’s a lot left to do.”

“We don’t have basic civil rights protection for LGBT people in most of the country,” he said.

Battle Lines

While the ruling removes some obstacles to equal rights, including tax, health-benefit and even hospital visitation issues, other inequities may remain. In some states such as Wisconsin, where marriage rights had already been won, both members of a same-sex couple are barred from appearing on a child’s birth certificate, a reality frustrating to gay parents who, once wed, thought they’d be treated equally.

But it is in stores and shops owned by gay rights opponents where the next battle lines are being drawn. Taylor of Lambda Legal said her group is fighting about 100 so-called religious refusal laws.

One drama played out in the glare of national media attention this year in Indiana, where a pizzeria’s owner said in an interview she wouldn’t cater a gay wedding, citing a state religious liberty statute.

The restaurant closed amid the resulting controversy, but later re-opened as supporters raised $843,787 in a two-month crowd-funding campaign.

Indiana lawmakers, criticized by the National Collegiate Athletic Association and other businesses, quickly amended the measure to specify it didn’t authorize discrimination based on sexual orientation or gender identity. Arkansas too changed a similar measure.

Negative Consequences

In Arizona, Republican Governor Jan Brewer vetoed a similar law in February, saying it could have “unintended and negative consequences.”

In Washington state, where voters legalized same-sex marriage in 2012, a florist was sued for refusing to provide flowers for a gay wedding. And in New Mexico, a businesswoman lost her legal fight over refusing to photograph a same-sex wedding.

“The issue is not one of selling flowers, it’s facilitating a ceremony that celebrates conduct that the person has a strong religious objection to,” said John C. Eastman, chairman of the National Organization for Marriage, a group opposed to same sex-sex unions.

Eastman called same-sex marriage a “made-up constitutional right” that shouldn’t trump “an actual constitutional right to the free exercise of religion.”

He added, “It’s not like you’re going to be unable to find a baker.”

Religious Freedom

Requiring businesses to serve everyone isn’t an infringement on religious freedom, gay rights advocates contend.

“Selling a bouquet of flowers to people doesn’t mean that you approve of their wedding,” said the ACLU’s Esseks.

In Kentucky, a custom T-shirt business rejected a customer order for shirts emblazoned with “Lexington Pride Festival,” a celebration of gay rights.

While a regional Human Rights Commission rejected the business’s grounds for refusal, a state judge in April reversed that determination, concluding the owner’s right to free exercise of religion was violated.

Judge James D. Ishmael based his ruling in part on last year’s Supreme Court ruling on Obamacare.

Legislation

Pennsylvania Governor Tom Wolf, a Democrat, said Friday that his state legislature “should stand-up and pass non-discrimination for LGBTQ Pennsylvanians, so that they can no longer fear being discriminated in employment or housing for being who they are.”

U.S. Senator Jeff Merkley, an Oregon Democrat, has said he plans to introduce legislation next month to protect lesbians, gays, bisexuals and the transgender people nationwide.

Merkley said the law is needed to replace a patchwork of state laws and guarantee the rights of the LGBT community in the workplace, education, federal programs and housing.

“I think the time has come and the American public has moved far enough that we have a strong prospect,” Merkley said.

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