Answers to 5 Questions on Supreme Court Same-Sex Marriage Ruling

Here are five answers to nagging questions regarding the same-sex marriage ruling issued last month by the U.S. Supreme Court:

Will ministers be forced to perform same-sex marriages? No.

This concern is wholly mythological. The First Amendment’s protection of religious liberty means that no court will force a clergy member to marry someone whose marriage they do not approve of. For example, no U.S. court has forced a minister to conduct an interracial or interfaith marriage, even though it remains generally illegal for businesses to discriminate on the basis of race or religion.

Will county clerks be forced to issue marriage licenses to same-sex couples? Yes.

Issuing a marriage license is considered a non-discretionary duty of a county clerk who is assigned to that position by law. Consider that a county clerk who for religious reasons does not want to issue a marriage license to someone who is divorced or to an interracial couple is not allowed to override his or her legal duties on the basis of those religious beliefs. This principle likewise applies to same-sex marriages. To avoid having to violate his or her religious beliefs by complying with the law, a county clerk is free to resign and forego being paid by the public to perform such duties.

I predict none of the few remaining clerks in Texas who still refuse to comply with the Supreme Court decision will prove willing to spend even a day in jail for contempt of court and so will eventually comply or not run for re-election. Even judges who disagreed with the high court’s ruling are likely to view an ongoing refusal to comply with it as a threat to their own judicial authority.

Is an employee of a county clerk’s office required to take part in the process of issuing a marriage license to same-sex couples? Yet to be determined.

In some situations, courts traditionally hold that promoting equality overrides beliefs of individual government employees to the contrary. For example, someone who believed it was against God’s law to allow women to drive generally would not be allowed to work in a driver’s license office and refuse service to female applicants. On the other hand, the law generally protects an employee’s sincere religious beliefs if they do not impose an undue burden on the employer. So an employee who believes for religious reasons that it is immoral to work on Saturday generally is allowed to refuse to be scheduled on Saturdays so long as there are a sufficient number of other employees willing to provide work coverage for that day.

The outcome to this question thus is likely to turn on whether the court analyzes it as being similar to the first situation (equality overriding personal beliefs to the contrary) or the second (accommodating religious beliefs when not interfering with the employer’s operations). Different judges may rule different ways on which it is, so it may take some time for this issue to get resolved. On the other hand, if there are sufficient employees in a clerk’s office that a same-sex couple ends up with a license even though some employees won’t participate, then the question might never reach court.

Now that the Constitution protects same-sex marriage, will polygamy have to be allowed too? No time soon.

The modern trend in Westernized countries has been toward greater acceptance and inclusion of same-sex marriage, in spite of its lacking the endorsement of history. By contrast, polygamy was widely accepted in the past, for example not being expressly condemned by the Bible. But over time polygamy became less recognized.

Same-sex marriage bans were stricken down in part because opponents could not persuasively verbalize or demonstrate a concrete harm they caused beyond offending the religious and cultural beliefs of some citizens. By contrast, polygamy opponents point to the inferior status of women in polygamous cultures; that polygamy often involves underage females matched with older males; and that polygamous families are assumed by some to be gaming public services by using welfare or food stamps to sustain the multi-spousal arrangement.

While marriage between two people may help resolve legal questions such as who inherits someone’s property if they die, having multiple spouses could complicate them, such as with inheritance and deciding which spouse has the right to decide whether to remove life support during a terminal illness. Television shows such as “Sister Wives” have made progress in reducing some negative stereotypes, but polygamy is unlikely to find the number of sympathetic judges, lawmakers and ministers that ended up supporting same-sex marriage.

Many families have at least one member — even if a distant relative — who has come out as gay, leading same-sex marriage to seem less radical over time. But most still do not know a relative who is a polygamist. Even with a majority of Americans telling pollsters they were no longer opposed to gay marriage, the Supreme Court still just barely granted it protection with a 5-4 vote. With that narrow a margin for same-sex marriage, polygamy can expect to have a very long wait in line for protection.

Is it now illegal to fire someone for being gay? Or to sell them a wedding cake? Depends where you live.

While the Supreme Court ruled that states cannot outlaw same-sex marriage, that did not change whether or not it is legal to discriminate against LGBTQ people in other aspects of life. Where a city and state (like Texas) has not added sexual orientation to the list of prohibited grounds of discrimination (a list that traditionally includes things like race, religion, age and gender), it may still be legal to fire someone or to refuse to serve them on that basis. For example, in many Texas towns, a couple that went to the bakery to buy a cake for their same-sex marriage could be turned away without legal remedy and then fired from their jobs the next day when their boss found out about their plans, again without legal remedy for the couple.

Courts have held that firing someone for not complying with gender stereotypes is a form of sex discrimination — such as getting rid of a female lawyer for being aggressive when a male member of the firm is praised for his aggressiveness. Lately some courts have held that firing a male for being gay can be the equivalent of firing him for not meeting stereotypes of what a male should be like and so it is prohibited gender discrimination. Other courts by contrast have ruled that if Congress wanted to ban private employer discrimination against gays, it would have directly done so, but it has not.

Unless you are in a state or city where sexual orientation discrimination is expressly prohibited, more often than not it is still legal to fire someone for being lesbian or gay or to refuse them service on that basis. Proponents of same-sex marriage, having been victorious, now can be expected to turn their sights on banning sexual orientation discrimination in other areas, such as employment and services. Ten to 20 years from now, sexual orientation discrimination is likely to be as widely banned in the United States as discrimination is now on grounds such as ethnicity, religion and gender. But it’s not now.

Conclusion: The Supreme Court struck down laws that prohibit people from getting married based on the gender of the person they plan to marry. Nothing in the decision or in U.S. legal history suggests that ministers will be forced to conduct same-sex marriages — for the same reasons that the government has not ever forced clergy to perform a wedding for any other particular kind of couple. The high court did not outlaw all forms of discrimination against the LGBTQ community, though Congress and state legislatures likely will do so eventually nationwide, with some cities doing so even sooner.

The law has changed, and changed dramatically, but the sky is not falling and polygamy is not going to be constitutionally protected this time next year or even in the next 10 years, if ever. But county clerks who refuse to comply with the court’s ruling will face the same fate as those who refused to comply with the court’s earlier rulings against school desegregation: praised by some initially for their courage but universally losing in the end. Yet for employees of clerks, the question remains an open one.

David Schleicher is an attorney with offices in Waco, Houston, and Washington, D.C.

[as published in Waco Tribune-Herald – July 15, 2015 – 6A]

Supreme Court Disrobes Discrimination: The Marriage Equality Decision 

Posted: Friday, June 26, 2015 11:01 am

Just shy of 29 years after the Court ruled it was constitutional to arrest two gay men for what they did in private, the U.S. Supreme Court has ruled 5-4 that states may not prohibit someone from marriage on the basis of sexual orientation. Like its former leader Anita Bryant, the anti-gay movement in America has gone from triumph to bankruptcy, clinging to a belief (as per her ministry’s bio page) that she is the real victim and remains a “real heroine.”

I can still remember the excitement of hearing Ms. Bryant’s telephone call to us over the loudspeakers at a rally in San Antonio against an ordinance that would have banned housing discrimination based on sexual orientation. A nine-year old at the time, I carried a homemade protest sign upon which I had written in large letters with a marker that “Homos Need Help.”

In fact it was me, and my fellow protestors, who needed the help. We were using our Bibles as an excuse for hate much as segregationists had done decades earlier. Our hypocrisy became apparent to me in the years since, so much so that I felt compelled around the turn of the century to march in Waco in a parade supporting LGBTQ rights.

It had dawned on me that things condemned with much more frequency by the Bible, such as greed, are rarely if ever suggested as a basis for denying someone housing, employment or admission to the clergy. The obsession with sexual orientation was not driven by the Bible, merely excused with it. For her part, fighting the fight for the sanctity of marriage did not prevent Ms. Bryant from divorcing and remarrying, notwithstanding Jesus’ view (Matthew 19:9) that a second marriage equals adultery.

Like me, San Antonio too has seen the wisdom of reversing course. It is one of 11 Texas cities (including Waco) that now have in place at least some degree of protection against sexual orientation discrimination. Pulling back the veil on such discrimination, we see it is not the inspirational “Save Our Children” campaign Ms. Bryant tagged it as being. Rather it the poison fruit of the prejudices of history, cloaked in a nobility it never deserved.

Having myself once been a protester against gay rights, I need not grant the opponents of same sex marriage the grace that Justice Kennedy did in today’s decision. Writing for the majority, he said the view that marriage can only be between a man and woman “long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world.”

The State of Michigan stooped so low in oral arguments as to claim that outlawing same sex marriage promoted stable homes for children by discouraging the idea that people would marry based solely on love. The flimsiness of this argument is a hint that it is meant to cover an actual, more sinister motivation (what in law is called “pretext”). Kennedy and four other justices were not persuaded.

The Supreme Court held the right to marry worthy of governmental protection in its 1967 Loving v. Virginia case, striking down bans on interracial marriage. A primary question in the latest case was whether banning same sex marriage was a legitimate exercise of legislative discretion to deny marital benefits to those not traditionally granted them, or instead an unconstitutional denial of government benefits targeted based solely on archaic tradition.

Justice Kennedy explained that the petitioners in the case were not out to “denigrate marriage, but rather to live their lives, or honor their spouses’ memory, joined by its bond.” As with bans on interracial marriage, yesterday’s heroes become today’s bigots in the brighter light of hindsight. This Supreme Court decision is not about the high court taking a turn to the liberal left. Its decisions on voting rights and campaign finance make clear it can muster plenty of conservatism when it wants.

Instead it is about what was thought a left-wing view being shared by conservatives such as Justice Kennedy as well: the liberties protected by the Constitution extend even to those our forefathers deemed unworthy of their reach. As Kennedy noted, “rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” Later in the opinion he explained that “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” He traced the constitutional evolution in granting rights to women as an example.

Justice Roberts’ dissent is well-written and persuasive if read on its own. That is, until one realizes similar take-it-slowly-and-let-the-voters-decide arguments could have been made against the earlier decision striking down bans on interracial marriage. Justice Scalia’s dissent calling the ruling a “threat to American democracy” would have us believe he has no strong opinions about same sex-marriage laws. Instead he solely wants the voters and their legislators to decide the issue.

As we learned in the Shelby County Voting Rights Act case of 2013, Scalia and Roberts will not hesitate to strike down the will of the people when they consider it justified to protect others. The Voting Rights Act was renewed in 2006 with a 98-0 vote in the Senate and 390-33 vote in the House — margins unimaginable in today’s fiercely partisan climate. The votes were based on 20 hearings, testimony from more than 90 expert witnesses, totaling more than 15,000 pages of testimony supporting the continuing need for the law.

If Scalia truly considered legislative action sacred, he would have not so readily overturned that voting rights legislation to protect us from over-protecting African-American rights. It boils down to this: He believes there is something fundamentally different about same sex marriage that puts it out of reach of constitutional protection. It’s not normal; it’s not right; now’s not the time.

Today’s Supreme Court’s decision disrobes discrimination. “Because the Bible tells me so” is confirmed to be as poor an excuse for oppressing the LGBTQ community today as it was for oppressing African-Americans in the 1950s. Children will be helped, not hurt, by what happened today. The disdain with which we today regard yesterday’s segregationists today will tomorrow in the bright light of hindsight be applied to the opponents of marriage equality. Just as orange is the new black, Anita Bryant is the new George Wallace.

David Schleicher is an attorney with offices in Waco, Washington, D.C., and Houston.

Why This Liberal Can Live With Drones (David R. Schleicher)

Al Qaeda and its offshoots are a fact of modern life, as is the reality that they want you to die. 

Consider these five options to respond:

1. Ignore them. Result: innocent civilians will die.

2. Turn the other cheek. We live up to the claim of being a Christian nation, but end up losing life as we know it, living under the subjugation of a foreign theocracy (much as the early Christians willingly did). Result: innocent civilians will die.

3. Send in ground troops. Result: innocent civilians die, American soldiers die, and American soldiers are taken hostage. We also substantially increase the national debt, to the detriment of our grandchildren.

4. We use airplanes to drop bombs on Al Qaeda safe havens. Result: innocent civilians die, an occasional American pilot is killed, and occasionally an American pilot is taken captive. Additionally, money that could be spent on things like school lunches or forgiving student loan debt is instead spent on replacing extremely expensive airplanes.

5. We continue to use drones to bomb Al Qaeda safe havens. Result: innocent civilians sometimes die as the imperfect intelligence that would plague us under options 3 or 4 also plagues us here. No American soldiers die. No American soldiers are taken hostage. The financial burden compared to options 3 or 4 is miniscule.

Under options 3, 4, and 5, the civilians living anywhere near the military strike are likely to hate us and to consider becoming terrorist themselves. Under options 3, 4, and 5 (but at least arguably also 1 and/or 2), we bear responsibility for the deaths of innocent civilians.

The question is thus not whether the use of drones to kill people is a horrible thing and sometimes will do the even more horrible thing of killing innocent civilians and even American hostages. Nor is the question whether we will unintentionally make some new enemies in the process. Those pitfalls apply to all options involving military force. The question instead is whether there are more appealing alternatives. 

I would say there presently are not. The focus therefore should be on minimizing civilian casualties and better perfecting our intelligence (as it would be for any of the military options). Also on issues like whether the program should be run by the military or the intelligence community. (I would say the former, as to the actual trigger pulling, to promote accountability.) 

Drones are hell because war is hell. We will not be less hated if we drop our bombs from planes or send in ground troops and no fewer civilians will die under those options. It easily could be that more will.

So tell me you believe in ignoring Al Qaeda or in turning the other cheek–I could understand either approach, though I don’t myself support them. But don’t expect us to respond while you rule out drones. 

True, there are many other steps to take, like reducing hopelessness among populations in Al Qaeda’s breeding grounds and cutting off the group’s financing. But in the meantime drones remain the least pleasant among a handful of bad options for killing off their military leaders.