Add Obergefell v. Hodges to the roster of historic US Supreme Court cases that current and future University of Wisconsin Law School students will dissect as they study the SupremeCourt and civil rights. The 5–4 decision legalizing same-sex marriage across the United States made headlines around the world and continues to ignite debate about what it might mean for everything from religious- liberty protections to employment discrimination to plural marriage.
Law School faculty members Linda Greene, Carrie Sperling, and Gwendolyn Leachman reflect on the decision, how it may impact daily life as well as other laws, and where the LGBT movement might go from here.
Understanding the Supreme Court’s rationale
The US Supreme Court’s ruling — with Justice Anthony Kennedy siding with the court’s more liberal justices in the 5–4 decision — probably wasn’t a surprise to anyone who has been following the court closely in recent years, notes Professor Linda Greene, a constitutional law expert.
“Over the past nine years, several decisions have laid a foundation for this majority opinion, and these decisions also laid the foundation for understanding the differences among the justices on this issue,” Greene says.
In the 1996 case Romer v. Evans, in a 5–4 decision, the US Supreme Court struck down an amendment to the Colorado state constitution that prohibited state and local gay-rights laws. In the 2003 case Lawrence v. Texas, the Supreme Court ruled 6–3 that a Texas statute criminalizing sexual activity between same-sex partners was unconstitutional and a violation of liberty in intimate relations. Finally, in the 2013 decision United States v. Windsor, the court ruled 5–4 that the Defense of Marriage Act violated the Fifth Amendment’s due-process clause because it treated same-sex marriage unequally.
And so the groundwork was laid for Obergefell v. Hodges. “Big picture: same-sex marriage is now legal across the country,” Greene says. “But why was it 5–4? Why was there such disagreement? It’s because the justices disagree over fundamental constitutional principles and over whether the court should decide whether same-sex couples may marry. It’s all about the role of the court in society.”
The Supreme Court justices agree that not all rights need to be explicitly stated in the Constitution — and the right to marry is not mentioned in the Constitution, Greene notes. “But justices disagreed on whether the court should expand the unwritten right to marry same-sex couples. They agree that the court may recognize that those rights are consistent with the ‘traditions and collective conscience of the people,’ but they disagree on how much freedom the court has to interpret tradition broadly,” she explains.
“The majority says that the tradition of marriage and the definition of equality have evolved, that history and tradition are a guide, but that tradition does not define the outer boundaries of equality and liberty. But the dissent says that when the court enters the area of unenumerated rights, the court has to be careful not to substitute its own values for those of the people because if the court does this, it usurps the democratic processes.”
Proponents of religious freedom have already proposed religious- liberty litigation in response to Obergefell v. Hodges, and the religious- liberty implications of the decision will continue to arise, Greene says. Will public servants or private businesses be allowed to refuse to perform services related to marriage based on their First Amendment right to religious freedom?
Another question is whether after Obergefell, plural marriage will also be protected by the liberty and equal-protection clauses. Greene says that the majority opinion does not appear to embrace that view. “The majority decision is tightly reasoned around the marriage of two people, and it is not clear that the Obergefell decision must be extended to plural marriage,” Greene says. “The dissent says the decision is so broad that it can be. That’s an undecided issue.”
Greene, whose practice background includes major constitutional and civil-rights cases, says the case confirms her experience that attractive plaintiffs are important to the success of high-impact litigation. “The plaintiffs in Obergefell v. Hodges were very appealing: there was a man who wanted to be acknowledged on the death certificate of his partner of two decades; a lesbian couple who wished to jointly adopt their children to ensure that they would be cared for if one of them died; and an army-reserve sergeant who married his partner in New York. Tennessee wouldn’t recognize the marriage when the sergeant moved there to work for the US Army Reserve,” she says. “Their stories conveyed the burdens endured by same-sex couples who wanted to marry and have their marriages recognized wherever they lived.”
How language can advance causes and shape litigation
Carrie Sperling, a clinical associate professor of law, shared the frustrations felt by the plaintiffs in Obergefell v. Hodges. She and her wife got married in the United Kingdom in 2008, but their marriage wasn’t recognized by the state when they relocated first to Arizona and later to Wisconsin.
“Unless you’re in that situation, you can’t understand the craziness of the patchwork of laws you have to navigate,” she says. “As you drive across state lines, you get a different bundle of rights.”
Sperling remembers an “a-ha” moment that she had while teaching a class at Arizona State University’s Sandra Day O’Connor College of Law. “Years ago, we were discussing same-sex marriage, and a student used the term marriage equality, and it sort of surprised me because I hadn’t used the term before,” says Sperling. “But it was so appropriate as the right framing for the argument if we wanted same-sex marriage to be enshrined as constitutional, and it made me wonder why we ever called it anything other than that.”
Now an associate dean and interim director of the Frank J. Remington Center at UW Law School, Sperling is still fascinated by the power of language and metaphor in legal decisions. Her latest study examines the use of metaphor when applying burdens of proof and supports the notion that metaphor shapes how courts define legal rights and procedures.
The study builds on work published in the Law Journal for Social Justice. Her article, “The Rhetoric of Same-Sex Relationships,” discussed the impact of metaphor in litigation involving gay and lesbian rights.
“Metaphor is powerful in so many ways that we don’t even consciously realize,” Sperling says. “From ‘soiling’ a reputation to having a ‘dirty’ mind, dirty metaphors bring with them certain connotations and more judgment. Those metaphors can shape litigation and perceptions.”
So what has that meant for laws related to the LGBT population? By shaping perceptions, metaphors may have helped keep antisodomy laws on the books for decades, Sperling says. “People have long used metaphors to describe the act of sodomy, or ‘the heinous act not fit to be named.’ These metaphors often draw attention to the perceived unnaturalness or uncleanness of the act,” wrote Sperling in the Law Journal for Social Justice.
Sperling says that neutral or positive language can make a big difference in outcomes, and that’s one reason she thinks the “marriage equality” language was part of an ultimately successful strategy.
“I’d love to go back and see when the term marriage equality started being used,” she says. “It signaled to me a complete shift in how we view same-sex couples’ rights. The court’s focus and the public’s focus were on a denial of a right to a particular minority.”
Another word that stuck out to Sperling in Obergefell v. Hodges: disability. “Justice Kennedy called the denial of the right to marry a disability that homosexuals had been burdened with, and I thought, ‘Wow, that’s powerful language, and it applies to a lot of things beyond marriage.‘ It applies to being denied a job because you’re gay and all sorts of issues,” Sperling says.
Framing the denial of a right as a disability conjures a different type of analysis. It may shift, ever so slightly, our understanding of LGBT issues. “We may find ourselves thinking of reasonable accommodations rather than of fundamental rights,” she says.
How and whether that language will be applied to other laws remains to be seen, but Sperling believes that the marriage decision and Justice Kennedy’s choice of language could have a ripple effect. “It creates this momentum to look at laws that treat gays and lesbians differently in ways that don’t have a rational basis, and I think that those laws will start falling by the wayside,” she says.
The future of the LGBT movement
Before the Supreme Court decision, there were an estimated 390,000 married same-sex couples in the United States, but only one in six lived in states that recognized their marriage. “And now their marriages will be recognized in all the states. I think the symbolic meaning is extremely important,” says Gwendolyn Leachman, an assistant professor of law who has spent the past decade studying how litigation has affected the LGBT movement.
But the impact goes beyond symbolic meaning. “There are a lot of aspects of daily life that this will affect,” she says. “Marriage is a key factor in determining workplace benefits. This will affect entitlement to workers’ compensation benefits, family leave, retirement, and life insurance.”
The decision also deeply impacts children of same-sex couples, Leachman notes. “Same-sex couples are more likely to raise families where one partner is not the biological parent. What marriage does is provide that nonbiological parent with a presumption of parenthood for children born into that marriage,” she says. “For children, that creates an enormous amount of stability. That is one of the most important aspects of the decision in terms of affecting the daily lives of children.” That legal link could also affect child support and shared-custody decisions if a marriage dissolves, she notes.
Of course, the right to marry doesn’t necessarily guarantee parental rights. Leachman cites a case in Iowa where a lesbian couple was legally married, but an Iowa government agency refused to list the nonbiological mother on the child’s birth certificate. Ultimately, the Iowa Supreme Court ruled that it was discrimination.
And marriage rights don’t solve perhaps the biggest threat facing LGBT people, Leachman says. “There’s a huge need for employment protections — instances of discrimination against LGBT workers are through the roof, unfortunately,” she says. “Between 15 to 43 percent of LGBT workers have been fired, denied promotion, or harassed because of their sexuality. You wonder how people are making a living.”
In fact, research shows that same-sex households make 20 percent less a year than heterosexual households, and children of same-sex households are also more likely to live in poverty, she notes.
Most of the students in Leachman’s employment discrimination class are shocked to learn that Title VII of the Civil Rights Act does not protect LGBT people from discrimination based on their sexual orientation. The Employment Non-Discrimination Act has been proposed but never passed. Some local ordinances and state laws offer protection, but only about half of the LGBT population lives in those states.
This summer the Equal Employment Opportunity Commission (EEOC), citing the Obergefell v. Hodges ruling, declared that its interpretation of Title VII’s sex-discrimination provision also includes sexual orientation.
“This was huge in symbolic value,” Leachman says. “If courts follow the EEOC’s interpretation, that would expand enormously the protections that LGBT people have under the law. But that’s an open question. Courts have been inconsistent in deferring to the EEOC, and there’s so much negative precedent.”
Leachman is also interested in how litigation affects activism outside of court. She won a national award earlier this year from the Law and Society Association for her dissertation titled “Institutions and Dominance within Social Movements: How Legal Strategies Shape the Agendas of Movements for Social Change.”
My research shows that litigation shapes movement politics in unexpected ways,” Leachman says. “Litigation in the LGBT movement has received far more media attention than any other type of LGBT movement activity. It’s this incredibly salient, visible tactic, and the groups that use litigation survive longer than other movements. But not every issue can be litigated in court, and the more radical factions of the movement have argued that certain political demands that are not so easily translatable to legal claims often get lost in the agenda.”
Meanwhile, the legal implications of the marriage decision continue to unfold as religious-liberty cases move forward. Says Leachman, “I think we’re going to see a lot of resistance creeping through in these subtle ways, so I think a lot of the litigation going forward is going to have to be about preserving same-sex marriage rights.”