The Beginning Rather Than the End: Obergefell v Hodges and the Continuing Struggle for LGBT Equality
There is no doubt that the Supreme Court’s judgment in Obergefell v Hodges is an historic one. That is not to say, however, that the struggle for LGBT equality is over. Indeed, it may only have begun.
The judgment in Obergefell has all the characteristics of Justice Kennedy’s earlier jurisprudence concerning LGBT equality. In holding that the right to marry is fundamental and cannot be withheld from same-sex couples, Justice Kennedy conceptualised the rights to liberty and equality as being mutually reinforcing. A ‘legal double helix’ to invoke the phrase coined by Professor Laurence Tribe. In holding that ‘The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right’ Justice Kennedy attempted to address some of the criticisms of the majority judgment made by his conservative colleagues. Justice Alito, for example, characterised the court as ‘a threat to American democracy’. Rights, however, are not something that are up for debate in the mêlée of the political process.
Inevitably in this fractured era, the judgment was not unanimous; the outcome was 5:4. The majority therefore prevailed by a knife-edge. As Max Harris has already pointed out, the focus of the dissents was not the denigration of same-sex couples, but on the appropriate role of the Supreme Court in American democracy. The backlash that can be generated by controversial judgments of the Supreme Court is a well-studied phenomenon. Chief Justice Earl Warren’s heroic and ultimately successful attempt to gain unanimity in Brown v Board of Education is well-documented. The fact the judgment in Obergefell v Hodges was decided by one justice’s vote could undermine the judgment’s authority. Some prominent conservatives have already called for a constitutional amendment to overturn the judgment. More radically, the judgment has led presidential candidate Ted Cruz to argue for the enactment of a constitutional amendment to end life tenure for Supreme Court Justices.
Others will be happy to play the long game and hope that the composition of the court will change enough such that the court may overturn itself in future.
LGBT rights advocates have had phenomenal success in the courts. Efforts to achieve same-sex marriage by appealing to legislators have been less fruitful. This makes the prospect of backlash especially concerning, as the next front in the struggle for LGBT equality must take place in the legislatures of the states and/or in Congress. There is no overarching protection from discrimination against LGBT people in the United States. There is a patchwork of protection provided by some states but not others, and also a number of executive orders that offer protection at the federal level in various contexts. This protection, however, is far from comprehensive and to a large extent depends upon the state in which an individual happens to live. It is for this reason that Obergefell v Hodges, whilst undoubtedly historic, is not the end. To illustrate, it is now unconstitutional for the state of Georgia to withhold the right to marry from two people of the same sex. Once they marry, however, it would be perfectly lawful for the couple’s respective employers to fire them because they are in a same-sex marriage. This is because Georgia is one of the 29 states that do not explicitly prohibit discrimination based upon sexual orientation. Such a situation is intolerable and must be addressed. The Employment Non-Discrimination Act (ENDA) is legislation proposed in Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation and gender identity. ENDA has been introduced in every Congress since 1994 (except the 109th and the current one), but has never been enacted. One of the main reasons for the Act’s failure to pass is the issue of whether religious organizations ought to be exempt from its provisions. This issue was alluded to by Justice Kennedy in Obergefell, as he emphasised that religious organisations would be exempt from carrying out same-sex marriages by the First Amendment. Whether this would enable ‘closely held’ corporations, such as Hobby Lobby, to opt out of the ENDA’s provisions is what led to the most recent failure to enact it.
The tension between religious freedom and LGBT equality has had to be confronted in other jurisdictions, but has never been fully explored in the United States. If Justice Kennedy’s rhetoric is to become reality and the dignity of LGBT people is to be fully respected, this tension must be addressed and ENDA must be enacted.
In conclusion, whilst Obergefell is historic and those who struggled to bring same-sex marriage to the United States deserve our thanks, there is much more to be done before it can be said that LGBT equality has been fully achieved in the United States.