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Let’s continue our question and answer session on Obergefell v. Hodges and discuss what we should look for and expect in the Court’s highly anticipated marriage equality decision.
To see questions 1 through 4, click HERE.
5. Will the Supreme Court declare the LGBT community a “suspect classification” and use “heightened scrutiny” on bans on marriage equality?
Possible, but unlikely. You may recall from some of our previous discussions that “heightened scrutiny” refers to the standard by which the Court reviews a law at issue in a case. From the judiciary’s perspective, scrutiny levels is akin to how big a magnifying glass we take to our laws: the closer we look, the more likely it is we will find the dirt. From the perspective of those defending the law, scrutiny levels are like hurdles on a track: the higher the scrutiny, the higher the hurdle, the harder you have to work to justify that your law is constitutional.
We’ve discussed it here, here, and here, among other places. Most laws get “rational basis review”–the law just has to be rationally related to some legitimate government objective. Heightened scrutiny, which the Obama Administration argued was applicable in the DOMA case because gay persons are, at least, a “quasi-suspect class” with a long history of facing discrimination, requires much more. As even many conservatives have conceded, marriage bans cannot survive heightened scrutiny.
Of course, most judges to decide the issue believe that marriage discrimination cannot survive rational basis, either. This suggests that a scrutiny decision is, at a minimum, unnecessary. The Court is also unlikely to address scrutiny if Justice Kennedy writes the opinion, which he most surely will. Justice Kennedy’s gay rights jurisprudence has eschewed formal categories like “suspect classification” for various reasons that I will not get into here. In place of these somewhat arbitrary groupings of persons, he has favored a flexible dignity standard that is ostensibly applicable to all.
For those committed gay couples seeking the dignity of marriage, no. It could be relevant for future precedent. But we should not expect a crystal clear decision on this point. Once again, taking the cue from Justice Kennedy’s decisions in Lawrence and Windsor, those cases’ pro-equality poetry masked what some scholars have seen as a doctrinal muddle. Sometimes it’s not entirely clear when Justice Kennedy is referring to a general right to marry and when he is referring to treating gay persons differently. His “dignity” jurisprudence could apply to both. I wouldn’t worry too much about this: Windsor is a tremendously powerful precedent and that is true regardless of its lack of clarity on equal protection versus due process.
7. Will the Court address the controversy of so-called “religious exemption” laws?
The Court will certainly not address this head on or in any direct way. But, depending on how the opinion is crafted, the Court’s words could have an effect on the fate of those laws.
You may recall that one of the next issues we will have to address in a post-marriage equality world is conservative use of religion to exempt them from having to comply with equality mandates. We have seen this happen in Indiana, Michigan, North Carolina, Louisiana, and elsewhere. The constitutionality of allowing private individuals who open their business to the public to discriminate against gay persons or of allowing government officials to refuse to do their jobs because their interpretations of their religions tell them to hate gays is not at issue in Obergefell. Those issues would be addressed by the Court in a potential future case.
8. What happens if the Court upholds marriage discrimination in Obergefell?
Assuming the worst for the moment, an anti-equality decision in Obergefell, which would make very little doctrinal sense, would mean that gays could not get married anywhere in the Sixth Circuit. It would have no effect on already settled cases in other circuits whose pro-equality decisions have already been denied hearings at the Supreme Court. Pending cases, however, could follow an anti-equality decision.
Keep in mind that this is highly unlikely, as I discussed in my previous Question and Answer post.
9. What else is happening at the Court that merits our attention?
There is no other single case with a similar direct impact on the LGBT community as Obergefell. There isn’t even a case like Hobby Lobby, the religious exemption to obamacare case that could open a chasm to allow continued discrimination against LGBT persons. But there are important cases that mean a lot to our democracy.
Obamacare is being challenged again, albeit indirectly. Conservative opponents of the law took advantage of some really shoddy drafting in the law and found a couple of arch conservative judges on the DC Circuit to agree with their craven, overly formalistic, and inane interpretation. Basically, the law as written states that only those Americans who signed up for Obamacare through the exchanges run by the states are entitled to subsidies to help pay for health care. But millions signed up through the federal exchange because many Republican state leaders just refused to do it themselves. The case is the result of a poorly drafted phrase, and although we should not be too cavalier about poorly worded legislation, the intent of Congress was clear: all eligible Americans can get subsidies. A decision supporting the conservative view wouldn’t end Obamacare, but it would cripple it.
There’s a case about the Fair Housing Act that, if the conservatives win, could make it much more difficult for the Justice Department to challenge housing discrimination. And there is a case about Texas’s highly political redistricting plan that, some argue, unlawfully dilutes minority representation.
There are other cases, too.
These cases may not be “gay rights cases,” per se. But how the Court comes out on each could set precedent for how it will rule in the future. The evisceration of the Fair Housing Act when it comes to racial discrimination could help eviscerate other non discrimination statutes, some of which ban discrimination on the basis of sexual orientation and gender expression. And a conservative Obamacare decision could make insurance impossible expensive for hundreds of thousands of low income persons living with HIV.
Precedent matters. So keep reading after Obergefell. The other cases are important, too.
Stay tuned! And Happy Pride!
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This post is promoted by the Human Rights Campaign. HRC envisions a world where lesbian, gay, bisexual and transgender people are embraced as full members of society at home, at work and in every community.