“Gay marriage,” as a term, is dead, and we should all stop using it. Ditto for “same-sex marriage.” As of Friday, June 26, with the majority decision in Obergefell v. Hodges, the Supreme Court ruled that marriage is a right for all Americans and there aren’t two different kinds. Generations will grow up calling marriage, whether between two men, two women or a man and a woman, the same thing: marriage. That’s a great and amazing effect of the ruling, and the implications are enormous for young people, who won’t see any delineation in the future.
But this is also where things get very complicated and even dangerous, and where we have to pay attention more than ever. When anti-equality conservatives can’t blatantly use bigotry or even name a group they’re targeting because of a profound cultural shift in favor of acceptance, they resort to the dog whistle. And we’ve seen this time and again around issues of race and gender as voting rights, affirmative action, and pay equity are attacked using coded language, while the more naked bigotry still plays out on the streets in the form of violence that coded language and symbols often still embolden.
“Religious liberty” is one term we’ve seen enemies of equality trotting out as code for the supposed threat of LGBT rights. I watched them testing it out over the past several years at gatherings like the Conservative Political Action Conference and the Values Voters Summit. It will be a mantra moving forward, and they’ll surely come up with more.
I’ve seen too many self-assured articles in recent days claiming that the battles over abortion rights and even gun rights can’t be compared to the battle over gay marriage in discussing how things will proceed. Marriage as a right for gays, these arguments contend, will end as a debate, because opponents can’t claim that a right of another is infringed upon by it, or that there’s any harm to anyone else, as they do with abortion (pointing to the fetus or the woman herself) or gun rights (pointing to gun owners).
But I’ve found these arguments to be naïve and, more so, apples-and-oranges comparisons, particularly when they imply that the battle over LGBT rights and acceptance itself is finished while the battle over women’s rights continues. Yes, marriage as a right itself cannot be chipped away at or restricted in the way abortion has been. That’s true even though we’re seeing judges and clerks resisting marriage equality in these first days after the ruling. Every couple — gay, lesbian, bisexual or straight — must be able to marry after the high court’s ruling, and this will work its way out. States and localities that have resisted are already falling in line.
But just because gays and lesbians have the right to marry, does that mean that a particular county clerk or judge must perform it if it offends his or her religious convictions, and if that couple could go to some other clerk who would officiate over their wedding? A few weeks ago North Carolina legislators said “no” and passed a bill overriding the governor’s veto, allowing public officials to opt out of performing certain marriages based on their religious beliefs. The law doesn’t mention gays or gay marriage, but it allows discrimination based on “sincerely held religious objection.” Sure, this can’t apply to federally and state-protected groups, such as people of certain faiths or races, but LGBT people are not a protected group, federally or in the state of North Carolina, so the question is open. On the same day Michigan’s GOP governor signed a law allowing state-funded adoption agencies to turn away gay couples — who now have the right to marry in the state — based on the agencies’ religious beliefs. Again, the law doesn’t name gays and lesbians as a group, but clearly it was meant to apply to them, especially since it can’t apply to other protected groups, and gays and lesbians aren’t protected in Michigan.
And how do gays and lesbians actually get those protections in the 29 states where they don’t have them, even in pro-gay localities in those states where they might find support, since there are no federal protections? Well, Arkansas, for one, made that pretty difficult, passing a law last spring that anti-gay forces saw as a model, a law that doesn’t allow cities or towns to pass anti-discrimination ordinances protecting any group that doesn’t already have statewide protections. Again, the law doesn’t single out gays as a group; it uses wording that could allow it to stand up in court. These are the ways that anti-gay conservatives will continue to attempt to inhibit or restrict LGBT rights. And I’m sure they’re crafting others right now.
Justice Kennedy’s powerfully written majority decision in Obergefell, like those decisions he’s written in the past that support gay rights, doesn’t make it clear just how far-reaching the marriage decision is with regard to other rights, even as it talks much about dignity and equal protection under the law. As constitutional scholar Adam Winkler and others have noted, the court did not use “heightened scrutiny,” the highest standard with regard to discrimination, in its decision, though doing so would have done much to insure that cases that seek to sanction anti-LGBT discrimination aren’t even brought to court. Kennedy’s decision will likely be interpreted in a variety of ways by lower court judges, including those who want to allow for discrimination in the name of “religious liberty.”
The Hobby Lobby decision, which Kennedy joined, should give us all pause, as the court is far from abandoning the notion that discrimination based on religion is allowable. As Paul Waldman noted, Kennedy, in his marriage equality decision, referenced religious liberty, again with words that are open to interpretation:
[I]t must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.
That means the rights of gay, lesbian, bisexual and transgender people beyond marriage will continue to be fought in the courts — including back at the Supreme Court, where we hope Justice Kennedy, if he hasn’t been replaced by a more conservative justice appointed by a Republican president, will be clearer on the issue, and in the state legislatures and Congress.
And we’ve got to stop the apples-and-oranges comparisons between abortion rights and LGBT rights. Abortion is just one among many rights that women have obtained, but one that is and has been in contention for a long time, as is pay equity, rape culture and others. But issues like suffrage or anti-discrimination protections for women are not. It’s unlikely that we’ll see any attempt to take away the vote for women anytime soon, just as it’s unlikely that marriage equality will ever go away now that it’s here. The fact is that women and minorities have secured some rights that are here to stay — different for each group — while other rights are still elusive or being stripped away. There is always a backlash to equality, and it could last a very long time, as bigotry doesn’t die easily. Like every group, LGBT people have to remain vigilant.
Michelangelo Signorile’s new book, It’s Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality, is published by Houghton Mifflin Harcourt.