By Sherri Donovan, Esq.
On June 26, 2015, the Supreme Court of the United States decided the matter of Obergefell v. Hodges. The petitioner, James Obergefell, sued the Director of the Ohio Department of Health after he was denied the right to be listed on his partner’s death certificate as the surviving spouse. This matter was combined, by the U.S. Court of Appeals for the Sixth Circuit, with several other lawsuits by same-sex partners against the respective authorities in Michigan, Kentucky, and Tennessee. Their argument was that the officials in these states violated the 14th Amendment of the U.S. Constitution by denying them the right to marry or to have marriages lawfully performed in another state given full recognition.
The Supreme Court held, in a 5-4 decision by Justice Anthony Kennedy, that the 14th Amendment to the U.S. Constitution required a state to license a marriage between two people of the same-sex, and to recognize a marriage between two people of the same-sex when their marriage was lawfully performed and licensed in another state. The Court also held that, under the 14th Amendment, there was no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.
The Supreme Court based its decision on America’s history and experience with the institution of marriage, in addition to the Court’s own jurisprudence as it pertained to marriage and intimate relationships. The Supreme Court also based its decision on the principle that marriage is a fundamental, individual right protected by the 14th Amendment’s Equal Protection clause, and that the Court’s action, rather than legislative processes, was urgently needed to prevent further pain and humiliation of the affected couples.
The implications of this ruling are far-reaching. The Obergefell decision now makes it possible for a same-sex couple to be married in any state in America, and to be recognized as a married couple should they move to another state in this country. This decision erases some uncertainty about the rights of a same-sex married couple that remained in the wake of the June 26th, 2013 Supreme Court case, United States v. Windsor. The Windsor case struck down Section 3 of the Defense Of Marriage Act (DOMA) and held that same sex couples are eligible for federal benefits – without reaching the question of whether same-sex couples had a constitutional right to marry nationwide. The Windsor decision was significant in providing rights and privileges for same-sex married couples, in areas such as real estate, tax, estates, health, immigration, social security and retirement benefits.
Massachusetts was the first state to permit same-sex marriage in 2003. In the year 2014, marriage equality gained tremendous momentum, starting with 16 states and the District of Columbia legalizing same-sex marriage. By the end of 2014, 35 states and the District of Columbia permitted same-sex marriage. On January 6, 2015, Florida was added to the list of states permitting same-sex marriage. In November of 2014, the Sixth Circuit upheld same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee. The Sixth Circuit Court decision directly conflicted with decisions from the Fourth, Seventh, Ninth, and Tenth Circuits. These circuits ruled that bans on same-sex marriage were unconstitutional after Windsor.
A key issue that has arisen in the wake of the Obergefell decision is the enforcement of religious freedom restoration acts and their effects on the rights of same-sex married couples in states that have such legislation. Some states have passed or amended this type of legislation before and after the Obergefell decision. The language that is often found in this type of legislation, according to Stephanie Francis Ward of the ABA Journal in a September 2015 article entitled “After Obergefell”, exempts businesses from providing services to same-sex married couples based on the owner’s religious beliefs, potentially making it legal for service providers to not provide services to same-sex married couples and for employers to deny to same-sex married couples the employment benefits to which heterosexual couples are entitled. This issue is made even more complex since 28 states do not prohibit sexual orientation discrimination, 31 states do not prohibit gender-identity discrimination, and federal law does not consider the LGBTQ community a protected class in the private sphere.
Federally, two legislative items have been proposed to address this problem. One is the Employment Non-Discrimination Act, which seeks to stop workplace discrimination against LGBTQ individuals by employers that employ at least 15 people. The problem with this piece of legislation (which was first introduced in 1994), however, is its broad religious exemption. The other proposed legislation is the Equality Act, introduced this July, which seeks to stop sexual orientation and gender-identity discrimination in employment, education, housing, and public accommodations.
The approach at the state level has varied, either with compromise legislation such as that in Utah (which passed legislation prohibiting housing and employment discrimination based on sexual orientation and gender identity without dealing with public accommodations and leaving religious exemptions on the books), or with more one-sided legislation such as that found in Arkansas, Indiana, and Mississippi that provided protections and exemptions for businesses and other organization based on religious beliefs. Such one-sided legislation was sometimes found to be so broad that business might be allowed to avoid following local anti-discrimination ordinances. This, particularly in the case of Indiana, led to situations in which businesses and conventions threatened to pull their operations out of the state unless changes were made to the more one-sided religious freedom restoration acts.
The protection of the relationship between children and their LGBTQ parents, especially when the parents are unmarried or otherwise not biologically related to the child, needs to be addressed by further legislative and judicial action. In New York, currently, there are no sufficient legal protections for children and non-biological parents. Current New York law prohibits a regulated process for reproduction through assisted pregnancy, and children conceived through surrogacy have a very insecure legal relationship with their intended parents. Second parent adoption, one conceivable solution for this situation, is overly burdensome for families, and in some cases may not be a viable option. A legislative effort to address this problem exists in the New York State Legislature through a bill entitled “The Child-Parent Security Act.” This bill is proposed to address the issue of a child’s parentage and regulate the processes of assisted pregnancy.
Transgender individuals, children, and parents face enormous hurdles and continue to be victims of discrimination and bullying. A transgender male was refused a divorce in Arizona. For transgender youth, parental consent and many times court approval is needed before medical treatment can begin or continue for transitioning gender. Legal protections for the transgender population are essential. Some States, including New York, have legislation pending to prohibit conversion therapy (attempts to force heterosexuality upon gay and lesbian minors). Finally, a greater sensitivity and emphasis is needed to enforce and provide laws against domestic violence in LGBTQ relationships.