Obergefell’s Limits 

The Supreme Court’s same-sex marriage decision doesn’t extend as far as traditionalists fear or as LGBT advocates would like.


For Tennesseans, it may be especially satisfying (or galling, depending on your viewpoint) to consider that last Friday's Supreme Court decision on same-sex marriage originated in part from the Volunteer State. Swift legal currents caused a dramatic social sea change, but they also leave some key questions in their wake.

It is unquestionably a landmark case, the Brown v. Board of Education of the gay rights movement (but without the years of "massive resistance"). But it should be clear what Obergefell v. Hodges does not say. It guarantees same-sex marriage rights in all 50 states, but it does not outlaw any other type of LGBT discrimination, by governments or private parties.  

Will Obergefell's "coverage" be extended to such other types of discrimination? 

One obvious starting point would be state laws treating gays unequally in family areas such as adoption, foster parenting, and the like. A number of states still have such laws. Much of the language in Friday's opinion emphasizes the liberty of homosexuals to pursue family relationships, with a separate discussion of the overriding interests of children in need of (married) parents. It would not be surprising to see anti-gay adoption/foster-parent laws struck down by federal courts trying to discern the Supreme Court's leanings. 

From there, it is more of a stretch, though not much more of a stretch, to see courts disapproving of any other kind of sexual orientation discrimination by government entities. This is because the opinion grounded its conclusions not only on the "fundamental liberty interests" of marriage under the Constitution's Due Process Clause, but also the nondiscrimination strictures of its Equal Protection Clause. The latter potentially allows for a broader reading of Obergefell, not limited to the fundamental rights involved in forming families. 

A complete unknown is how (if at all) this decision would affect state laws allowing gender identity discrimination. The "T" in LGBT was not discussed in this opinion. Certainly, some transgender advocates can point to language in the opinion regarding the need for the state to avoid insults to the "dignity" of individuals. But good lawyers, and wary Supreme Court justices, could always formulate distinctions between sexual orientation and gender identity.

And one place courts definitely won't take Obergefell is anywhere near private discrimination. Constitutional decisions deal with violations of individual rights by government only. In most states (including Tennessee), it is legal for private businesses to discriminate in employment, housing, lending, etc. The only way to prevent that would be legislation, either at the state or federal level. LGBT groups (including those in Memphis) have renewed calls for such legislation, but it's anyone's guess how successful such calls will be.

Yet another outer boundary to be tested is the effect of Friday's ruling on the rights of religious groups who sincerely oppose gay rights measures on theological grounds. Conservative groups caution that such groups need protection too, and they are right. Nothing in Obergefell requires clergy or churches to recognize or perform gay marriages. As the opinion itself correctly recognizes, any attempt to do so would violate their First Amendment freedom-of-religion rights.

What about conservative churches' tax exemptions? Could they be taken away for opposing same-sex marriages or for otherwise discriminating against homosexuals, as some conservative critics of Friday's decision claim?  This is also unlikely. The First Amendment protects any government interference in a church's doctrines, sacraments, or ministerial hiring. 

While federal laws and Supreme Court decisions do allow the IRS to cancel the tax-exempt status of a church or church-affiliated organization which engages in some other type of racial discrimination, that power has not been extended to gender discrimination. An Orthodox Jewish synagogue which requires women to sit separately and cover their heads is in no danger from the IRS. If this is the case, despite laws on the books expressly banning sex discrimination for more than 50 years, it seems implausible to fear that LGBT discrimination will jeopardize tax exemptions (especially since there are yet not actual federal statutes explicitly outlawing such discrimination).

LGBT proponents may look with hope for the extension of the decision's nondiscrimination precepts to areas outside same-sex marriage. Same-sex marriage opponents can take solace in the fact that no court can force a church, its clergy, or its adherents to recognize a same-sex union. And people who write about constitutional law can take satisfaction in knowing that there will be plenty more on this topic to write about in the years to come.

Steven Mulroy, a former two-term Shelby County Commissioner, is a professor of constitutional law and Associate Dean of the University of Memphis School of Law.

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