SCOTUS Legalized Gay Marriage - Now What?

SCOTUS Legalized Gay Marriage - Now What?

This decision is a historic victory for gay rights activists who have fought for years in the lower courts - but what's next?


Introduction

On Friday, June 26th, 2015 the U.S. Supreme Court ruled 5-4 that all Americans, regardless of their gender or sexual orientation, have the Constitutional right to marry the people they love.

This decision is a historic victory for gay rights activists who have fought for years in the lower courts.

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Source: FiveThirtyEight Blog

This decision will undoubtedly impact hundreds of thousands, if not millions, of same-sex couples across America. In April, the Washington Post reported that in the United States there are currently 390,000 legal same-sex marriages and 1.2 million adults living in same-sex partnerships. With gay marriage now legal nationwide - this numbers will likely rise.


The Decision

The decision in Obergefell v. Hodges expressly overrules the Supreme Court’s only prior ruling directly on same-sex marriage - a one line decision in the 1972 case of Baker v. Nelson, declaring that same-sex marriage did not raise a “substantial question” for the Court to resolve.

In the present case, the Justices found that, under the 14th Amendment, states must issue marriage licenses to same-sex couples and recognize same-sex marriages that have been performed in other states. As President Obama put it - this will end a period of “patchwork” state marriage laws - which left many same-sex couples unsure about the legal status of their union.

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The Majority Decision

Justice Anthony Kennedy wrote the majority opinion and was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor.

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The Dissent

In a relatively rare move - the four dissenting justices each wrote an opinion. The dissenting Justices included Justices John Roberts, Antonin Scalia, Samuel Alito, and Clarence Thomas. Justice Clarence Thomas' dissent drew some controversial comparisons focused on the notion of dignity:

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The U.S. is the 23rd country to make gay marriage legal nationwide

Today’s Supreme Court ruling makes the United States the 23rd country where same-sex marriage is legal nationwide.

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List of countries and their date of gay marriage legalization:

  • Argentina — 2010
  • Belgium — 2003
  • Brazil — 2013
  • Canada — 2005
  • Denmark — 2012
  • England (UK) — 2013
  • Finland — 2015
  • France — 2013
  • French Guiana — 2013
  • Greenland — 2015
  • Iceland — 2010
  • Ireland — 2015
  • Luxembourg — 2014
  • Mexico — 2015
  • The Netherlands — 2000
  • New Zealand — 2013
  • Norway — 2009
  • Portugal — 2010
  • Scotland (UK) — 2014
  • South Africa — 2006
  • Spain — 2005
  • Sweden — 2009
  • United States — 2015
  • Uruguay — 2013
  • Wales (UK) — 2013

Note: Gay marriage is legal everywhere in the United Kingdom except Northern Ireland.


The Inevitable Backlash

The majority decision acknowledged that the debate over the social and moral dimensions of same-sex marriage will continue to go on, making sure to remind anyone who takes up the issue that they will continue to have the protection of the First Amendment freedom of speech. The Court is clearly anticipating that some United States citizens will claim that same-sex marriage is incompatible with their religious beliefs. A number of state legislatures, in anticipation of Friday’s ruling, have begun passing measures to give businesses and others a legal right to refuse to accommodate same-sex couples.

Though SCOTUS’ decision has legalized gay marriage, current federal civil rights laws do not explicitly ban discrimination on the basis of one’s marital status or sexual orientation.

Only 22 states and the District of Columbia have laws against employment discrimination based on sexual orientation, leaving millions of gays and lesbians nationwide without a clear right to rent an apartment, eat at a restaurant or keep their jobs.

Sarah Warbelow, legal director for the Human Rights Campaign, predicts that a LGBT non-discrimination bill will be passed in the next 3 to 6 years.


Q: Does the SCOTUS gay marriage decision take effect immediately?

Yes! But it’s a little complicated.

Gay marriage is now considered legal in the states under the discretion of the U.S. Court of Appeals of the Sixth Circuit, which were directly affected by the Supreme Court case -- Kentucky, Michigan, Ohio, and Tennessee.

For gay marriage to technically be legal in the 10 remaining states, there will need to be either legislation or a court ruling explicitly permitting it. However, cases involving these states are likely to be resolved extremely quickly by the federal appeals courts in the First, Fifth, and Eighth Circuits.

In the meantime, hundreds of thousands of same-sex couples will seek to obtain marriage licenses, which will allow for a wide variety of state and federal benefits that go with marriage. These benefits include better tax treatment and equal status as parents.


Q: What if my local or state government refuses to issue me and my partner a marriage license?

In the 10 states where gay marriage bans remain technically on the books, it is possible that state and local officials will resist. In those cases, it will be necessary for gay couples to obtain court orders that ensure their access to a license. Courts in question will likely issue an injunction ordering the state or local official to grant the marriage license.


Q: Can my employer discriminate against me for being gay?

Currently, over 206 million Americans live in states where they can still be fired from their job for being gay, despite now having a Constitutionally protected right to marry.

Federal law does protect federal workers from workplace discrimination on the basis of race, national origin, religion, sex, age, and disability.

However, there is no federal law that outlaws workplace discrimination in the private sector on the basis of sexual orientation.

Currently 22 states and the District of Columbia have laws that prohibit sexual orientation discrimination in both public and private sector jobs.

The states include: California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, Washington, D.C. and Wisconsin.

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Q: Can my landlord discriminate against me for being gay?

Currently only 18 states and the District of Columbia prohibit housing discrimination based on a tenant’s sexuality or sexual identity. Over 166 million Americans live in states where landlords can evict someone based on their sexuality.


Have other questions about what this decision means?

Do you have more questions about what happens, or what to do next. When major laws change, like this, there are bound to be knock-on effects in all sorts of areas, from employment, housing, sports, politics, entertainment, healthcare, jury selection, adoption and immigration, to name just a few.

Thankfully, our trusted networks of lawyers are on hand to interpret, clarify and guide the way forward.

"Ask about this" to submit your questions.

We'll be publishing another guide, soon, with answers to the top questions, and it's always free to get a consultation with a qualified lawyer if you need help with something specific.


BONUS: a video of the SCOTUS "running of the interns"