Analysis Law and Policy

What’s Next for Equality After Friday’s Same-Sex Marriage Ruling

Jessica Mason Pieklo

The historic Obergefell v. Hodges decision affirming marriage equality marks an important early step in the fight for gender equality.

Didn’t Friday’s win for marriage equality feel good? Even though the decision affirming the fundamental right of LGBTQ people to marry whomever they love seemed inevitable—especially given the impressive string of nearly unbroken federal court wins leading up to Friday’s decision in Obergefell v. Hodgesit’s also the Roberts Court we’re talking about here. So. Nothing was guaranteed.

But in the end, it was Justice Anthony Kennedy who provided the fifth and final vote affirming marriage equality and cemented his legacy as the conservative justice that helped bring same-sex marriage to the country. And that is why Obergefell is, at its core, a fundamentally conservative decision.

Packed into all of Kennedy’s flowery prose about the beauty and dignity of partnership is a reaffirmation of committed love in a very traditional sense. “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” Kennedy writes in his concluding paragraph.

Kennedy continues:

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In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

That passage still chokes me up. It’s beautiful. It’s also inherently conservative. And, frankly, it’s a little weird to use it to celebrate a win for equality when the history of marriage that Kennedy recites is not one of “two people” becoming something “greater than once they were.” It’s a historical institution that evolved from a way for men to trade wealth vis-a-vis dowry and to control procreation by criminalizing it outside the construct of the marriage to one that helps to sort and assign benefits from the state. Yes, marriage has evolved to become more inclusive, but there’s nothing inherently “equal” in the institution historically.

Even with that inclusivity in mind, as the glitter settled Friday, many advocates also reminded us that the right to marry is the beginning, not the end, of the fight for equality. It’s still legal in many states to fire someone because of their sexual orientation or identity, for example. Or to deny them housing. But Obergefell says nothing about this reality, despite the fact that the case had before it the question of just how far the 14th Amendment’s equal protection and due process guarantees stretch. Kennedy didn’t explain why the 14th Amendment doesn’t tolerate discrimination on the basis of sex or sex-stereotypes, which is what bans on marriage equality are rooted in. Nor does the opinion actually address the substantive rights of LGBTQ people by setting forth a clear—or at least clearer—constitutional standard of how discrimination against LGBTQ persons is sex-discrimination. By elevating marriage as this “most profound” union, Kennedy’s opinion overlooks all of the actual ways the law continues to allow actual discrimination.

In addition to the missed opportunity to really issue a strong decision for equal rights, Justice Kennedy’s practically nonexistent constitutional analysis leaves huge gaps conservatives will exploit via claims of religious freedom to discriminate. Chief Justice Roberts’, meanwhile, sets the trail of crumbs for the protest lawsuits conservatives will inevitably file in a mere two paragraphs in his dissent in Obergefell. “Today’s decision, for example, creates serious questions about religious liberty,” Roberts wrote. “Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.”

Roberts continued, “Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.”

We’ve heard these kinds of concerns before. They form the basis of the objections to employer coverage of contraception; of the quest for religious exemptions to the proposed Employment Non-Discrimination Act; and of efforts to expand so-called religious freedom bills in states. And we will continue to hear them in the wave of conservative protest lawsuits that will be filed in the wake of Friday’s decision.

The good news is these are arguments we are well positioned to address, losses in Hobby Lobby and Wheaton College notwithstanding. Thanks to the work of gender equality advocates starting with Justice Ruth Bader Ginsburg, we have both a line of case law and recent executive agency decisions that will light the way forward for advocates and potential allies to shore up their defenses in the face of “religious freedom” arguments and drag the law forward to ensure adequate protection for everyone under the 14th Amendment.

Chai Feldblum, the Obama-appointee commissioner of the Equal Employment Opportunity Commission, has made the case that Title VII, the federal anti-employment discrimination law, protects against workplace discrimination on the basis of sex and sex stereotypes. “[A]ssume a male employee is fired because he marries another man,” she wrote in The New York Times. “The reason for that employee’s firing makes reference to the sex of the people involved, and the antipathy to marriage by a same-sex couple is deeply embedded in a history of gender roles and sex stereotypes. From my perspective, that is a simple case of sex discrimination.”

This is an important, affirmative position for the agency to make as conservatives begin to argue, in the wake of the Obergerfell ruling, a religious objection to providing parental leave benefits to same-sex married couples, for example. And there is really nothing in the Hobby Lobby decision to prevent them from doing so; to have one of the Obama administration’s leading policy voices out ahead of this issue is smart policy and politics.

Meanwhile, the Department of Justice announced in December its position that Title VII also prohibits discrimination against transgender people. This is a reversal of previous departmental policy.

And to the extent that Kennedy’s opinion in Obergefell fails to address how courts should judge sex-stereotype discrimination like the kind underscoring anti-LGBT laws, Judge Nina Pillard of the D.C. Circuit Court of Appeals is there to fill in the gaps. Prior to her appointment to that court, Pillard was one of the most important figures in advancing gender-equality litigation, helping the Clinton Administration win the landmark United States v. Virginiathe case that successfully challenged the Virginia Military Institute’s exclusively male admissions policy. The exclusive military school justified not admitting women on the “inherent” differences between men and women. The Supreme Court, in a decision written by Justice Ruth Bader Ginsburg and joined by Kennedy, rejected VMI’s argument, holding that policies that result in gender-based discrimination, including discrimination based on gender stereotypes, need an “exceedingly persuasive justification” to stand.

As a Judge on the D.C. Circuit Court of Appeals, Pillard authored one of the strongest defenses of the Affordable Care Act’s birth control benefit, rejecting in a detailed opinion in Priests for Life the exact same religious liberty arguments Roberts sets out in his Obergefell dissent. By the way, Priests for Life recently filed a request with the Roberts Court to take up its case. If the Court takes the case, it would put Pillard’s analysis and reasoning squarely before Kennedy. This is good news for our side.

As is, I think, the fact that Kennedy joined the Virginia decision. Hopefully that means that at some level, beyond the flowery language of dignity and his opinions in the abortion cases that are pretty much silent on the dignity of the pregnant person, Justice Kennedy gets it. Or is getting it. Maybe. Maybe he does understand, from a constitutional standard, that the 14th Amendment means nothing if it does not reach the darkest corners of our institutional bias that are less obvious than state-level bans on same-sex marriage. Maybe he is just deliberately allowing the connection between liberty and the dignity of wanting the state out of your private life, regardless of whether the issue is marriage or abortion, percolate a bit more. Maybe now that he’s seen through the religious objections conservatives make to marriage equality, he can see through those they make to gender equality like they did in Hobby Lobby. Maybe.

That doesn’t mean we shouldn’t celebrate Obergefell. We should! It’s an important win that brings with it real benefits beyond “dignity” for the LGBTQ community, including tax benefits, spousal death benefits, and parental rights, just to name a few. Let’s be honest, too, those wins don’t come frequently enough from the Roberts Court.

But I’m also looking forward to one day writing the piece on the Court’s embrace of a radical political love. A love not rooted in patriarchy and a love that does not depend on conservative ideologies like those on display in the Obergefell opinion. A love that explodes gender and sex stereotypes and is truly free. I know better than to expect that decision to come from the Roberts Court. But with Pillard, Feldblum, and others working on this issue daily, I’m optimistic we’re not too far away.

News Law and Policy

Texas Court Greenlights Discrimination Against Transgender Students

Jessica Mason Pieklo

The ruling was not a decision on the merits of the Obama administration’s policy, but rather whether it followed the correct procedure in crafting it, U.S. District Judge Reed O’Connor wrote.

A federal judge in Texas on Sunday issued a preliminary injunction barring the Obama administration from enforcing guidelines designed to protect transgender students from discrimination in schools.

The ruling came in the multi-state lawsuitTexas v. United States, challenging the Obama administration’s guidance to schools that receive federal funding that transgender students must be given access to bathrooms that align with their gender identity rather than their biological sex.

Schools that defy the White House’s guidance would face potential loss of funding or federal lawsuits.

The lawsuit brought by Texas and states including Alabama, Georgia, Oklahoma, and Tennessee, targets various federal memos and statements that served as the foundation for the administration’s position that the Title IX of the U.S. Education Amendments of 1972 federal ban on sex discrimination encompasses gender identity discrimination. The administration charges that transgender people should be allowed to use restrooms consistent with their gender identity.

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The administration overstepped its authority in issuing the statement in violation of both the Administrative Procedure Act and the Constitution, according to the states challenging the guidance.

A nearly identical lawsuit challenging the White House’s policy was filed recently by the state of Nebraska. That lawsuit was joined by Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming.

U.S. District Judge Reed O’Connor wrote that the administration failed to engage in the proper administrative rule making process when directing schools to not discriminate against transgender students in access to restrooms and facilities. The ruling, O’Connor wrote, was not a decision on the merits of the administration’s policy, but rather whether it followed the correct procedure in crafting it.

“This case presents the difficult issue of balancing the protection of students’ rights and that of personal privacy when using school bathrooms, locker rooms, showers, and other intimate facilities, while ensuring that no student is unnecessarily marginalized while attending school,” O’Connor said in his ruling. “The resolution of this difficult policy issue is not, however, the subject of this order.”

Sunday’s ruling comes shortly after the Supreme Court put on hold a federal appeals court ruling ordering a Virginia county school board to allow a transgender student access to the restroom that aligned with his gender identity.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.

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