2017 marks just under 20 years from when we got involved in the marriage equality movement. Our first challenge was to educate our allies and our own community about the rights we were not afforded as same-sex couples. We all know how this turned out—we obtained marriage equality nationwide through the Obergefell Supreme Court ruling in 2015—but is that ruling going to stick?
Our new president has been quoted as saying he won’t reverse marriage equality—and he probably won’t. But his new Supreme Court appointee might. That is why, in this most recent election cycle, we kept telling undecided voters that who gets to appoint the next Supreme Court Justices is a major issue. A court with a different composition could very well reverse not only marriage equality, but abortion rights and other “liberal” decisions.
Donald Trump’s recent appointment of Neil Gorsuch supports this fear, and Gorsuch’s record speaks for itself. He has never ruled in favor of an LGBTQ initiative in his entire career. This comes at a time when a case that could make its way to SCOTUS regarding rights afforded to same-sex married couples has reared its head in Texas (Jack Pidgeon and Larry Hicks v. Mayor Sylvester Turner and City of Houston).
A couple of taxpayers, supported by the Texas Republican establishment, are suing to stop the City of Houston from extending spousal benefits to partners in same-sex marriages. This idea seems to go against the Supreme Court’s decision in Obergefell v. Hodges, the 2015 ruling that mandated the federal government and individual states recognize same-sex marriage the same as they do heterosexual ones. Texas courts initially rejected the case, but the state’s governor, lieutenant governor and attorney general submitted briefs arguing that this is an opportunity to “examine the scope” of how broad the Obergefell ruling is.
The Texas Supreme Court will hear arguments in March, contending that legally recognizing a same-sex couple doesn’t necessarily mean they have to extend the same employee benefits as they do to heterosexual married couples. This case would have to make it up to the Supreme Court to impact the marriage equality ruling, and that impact largely depends when this happens and who is sitting on the bench at that time.
Another significant impact to marriage equality could be the many proposed religious freedom bills and the anticipated Congressional Bill First Amendment Defense Act (FADA), a measure to “prohibit the federal government from taking discriminatory action” against a person whose religious beliefs or moral convictions define marriage as a union between a man and a woman. FADA allows individuals and businesses to sue the federal government for interfering in their right to discriminate against LGBTQ people and would mandate the Attorney General defend those businesses. Jennifer Pizer, Law and Policy Director at Lambda Legal, has said that FADA “invites widespread, devastating discrimination against LGBT people” and is a deeply unconstitutional bill.
“This proposed new law violates both Equal Protection and the Establishment Clause by elevating one set of religious beliefs above all others,” Pizer said, “and by targeting LGBT Americans as a group, contrary to settled constitutional law. ” If FADA succeeds, LGBTQ people will face unprecedented discrimination. Our marriages would be subject to individual beliefs and not covered by law. It would also give people the right to discriminate in many other ways, such as service in public places and employment. FADA would essentially chip away at basic rights and dignity.
As longtime fighters for equality, we would like to remind our community and allies that any law can be overturned in this country if a case goes through the courts–any law as part of the democratic process. Unfortunately, we are in an unprecedented time; a time when there is great uncertainty. We suggest keeping a close eye on the Texas case and the Supreme Court appointments.
Catherine Marino-Thomas and Michael Sabatino are longtime marriage equality activists who have spent two decades fighting for the cause. Catherine is an activist, AIDS Buddy and the Emeritus Board President of Marriage Equality USA, and Michael Sabatino is the current Yonkers City Council Minority Leader. Michael and his husband were successful plaintiffs in a case that brought the recognition of marriages legal performed elsewhere, to New York State in 2009.