Let’s hope Justice Kennedy sticks around a long time

by Rob Howard
Political Columnist

Justice Anthony Kennedy’s masterful opinion in Obergefell v. Hodges marks his fourth major LGBT rights decision over the last 19 years. The marriage decision is well thought out, cites four major reasons that bans on same-sex marriage are unconstitutional, rejects the arguments of gay marriage opponents, and summarizes the reasons that marriage is a constitutional right.

The opinion also notes that opposition to same-sex marriage is “often based on decent and honorable religious or philosophical premises,” and says that “neither they nor their beliefs are disparaged here.”

Kennedy waves a warning flag that will undoubtedly become the foundation of a decision that so-called “religious protection” laws are also illegal if they go beyond the protection of religions and religious organizations, and extend the right to refuse to serve married couples based on “sincerely held” religious belief to individuals. He writes, “…when that sincere, personal opposition [my emphasis] becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”

But it’s not going to stop opponents from trying. We already see, particularly in the 13 holdout states whose bans on gay marriage evaporated with Obergefell, efforts to make it difficult for same-sex couples, and in some cases, all couples, to obtain marriage licenses. Many governors have made it clear that a public official in their state may not refuse to issue a license to same-sex couples, and that officials who object, for whatever reason, should resign.

In other states, notably Texas, Attorney Generals have made unclear opinions, or have stated the right of clerks to refuse to issue licenses, based on their sincerely held religious beliefs. Those AG’s should take a long look at Kennedy’s opinion, and see how that is going to work for them.

Another approach is to narrowly interpret laws written when marriage bans were in place. In Utah, state officials refused to issue a birth certificate with both mothers’ names as parents in an assisted pregnancy. One of the women got pregnant using a sperm donor. For opposite sex couples, state law automatically recognizes a husband who agrees to assisted reproduction as a father. The Utah Attorney General’s office contended that that right doesn’t extend to same-sex couples, “because child bearing is legally different from marriage.” State attorneys further stated, "It is a biological impossibility for a woman who does not give birth to a child to establish paternity of a child through the act of birth."

US District Judge Dee Benson set Utah official straight immediately after hearing the case, ordering the state to list both mothers as parents. However, the ruling doesn’t apply to male couples, since they typically use a surrogate.

Kennedy listed several aspects of marital status in his opinion, including taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access and many more.

But each of those aspects, usually governed by state law, could be delayed or denied by state officials who remain opponents of same-sex marriage. The Utah case is only one example. Many states will attempt to pass “religious objection” laws, which, when extended to individuals, are nothing more than a thinly veiled license to discriminate against LGBT people. The result will be many, many trips to court, where federal District Judges, Circuit Courts, and probably ultimately the Supreme Court, will have to decide the issue.

And so it will go, state by state, law by law, where officials disagree with the Supreme Court decision. Let’s hope that Justice Kennedy sticks around for a long, long time.

The Gayly – August 6, 2015 @ 7:30am.