LGBT Rights After Obergefell

By Rachel Pomerantz

Rachel Pomerantz is a freshman at the University of Pennsylvania.

June 26, 2015 was a momentous day for lesbian, gay, bisexual, and transgender (LGBT) rights activists. The Supreme Court handed down its decision in Obergefell v. Hodges, striking down bans on same-sex marriage across the country. [1] The steps of the Supreme Court and social media pages were filled with pictures and filters of joyous celebration and relief.


What does this mean? Can activists and allies pack up their bags and go home to enjoy their newfound rights? Surely, the days of relegating Americans to second class citizenship on the basis of sexual orientation are over.


Wrong.
​

After famously losing the Democratic nomination for president, Ted Kennedy said, “For all those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.” Well, even though a battle for full equality was won nearly a year ago, the work goes on.


Anyone who has paid attention to the presidential election has borne witness to hateful homophobic and transphobic rhetoric. Changing hearts and minds is a difficult task that never truly ends. Therefore, we should concern ourselves with the tangible legal barriers to equality that must be surmounted.


Now, there has been progress since the Obergefell decision. By progress, I mean that the justice system has staved off attacks on LGBT equality. The Alabama Supreme Court has mounted numerous challenges to the marriage equality ruling, first by stopping probate judges from granting same-sex couples marriage licenses and then by not recognizing the adoption of a same-sex partner’s biological children. [2] The U.S. Supreme Court promptly reversed the adoption decision, which influenced the Alabama Supreme Court to allow state and local officials to issue marriage licenses to same-sex couples. [3]


The first case involves outside legal issues preventing the spread of equal rights. In Puerto Rico, a federal judge upheld the territory’s ban on same-sex marriage, finding that the Obergefell decision only applies to state governments and not to Puerto Rico, an “unincorporated territory.” [4] The judge relies on the Insular Cases, a series of Supreme Court cases from the turn of the 20th century that ruled that full constitutional rights do not automatically apply to Puerto Rico. These frankly racist decisions relied on such faulty premises as the inherent value in American colonialism and the “white man’s burden” to take care of inferior races (For more on the ongoing legal debate about the Insular Cases, see Harvard Law’s conference on the matter). [5] Though this case does not explicitly deal with legal questions about LGBT rights at first glance, it presents an interesting perspective on the intersection of the law and equality irrespective of sexual orientation.


The bulk of the remaining fight, however, lies in nondiscrimination ordinances. In Charlotte, North Carolina, city government expanded its existing nondiscrimination ordinance to prevent businesses from discriminating against members of the LGBT community. The most controversial section of the ordinance allows someone to use the locker room and restroom of the gender with which they identify. In response, the Republican-controlled General Assembly and Republican Governor Pat McCrory vowed to explore ways of preventing the ordinance from  going into effect on April 1. [6] Even though the assembly is scheduled to go back into session on April 25, they considered calling a special session to prevent the ordinance from going into effect for even a couple weeks.


This is nothing short of deplorable. The General Assembly wants to override the actions of Charlotte’s elected city government to perpetuate outdated, thoroughly debunked myths about transgender people. McCrory’s cries for public safety represent not-so-coded language meant to scare people using hateful lies about the individuals that this ordinance will protect. Its also exceedingly ironic that the small-government Republicans in Raleigh think government is not responsible for protecting the right to a clean environment, right of North Carolina’s children to receive a quality education, or right of equal representation, but it is their sacred duty to protect the right to trample on others’ rights out of prejudice and fear of people they perceive as different.


These cases are important yet sobering reminders that our rights are not passively obtained. We need active, resolute steps to ensure the fair provision of rights, because that is not the status quo.




[1] Obergefell v. Hodges, No. 14-556 slip op. at 1 (June 26, 2015). http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
[2]Totenberg, Nina. "Same-Sex Adoption Upheld By U.S. Supreme Court." NPR. March 7, 2016. Accessed March 9, 2016. http://www.npr.org/sections/thetwo-way/2016/03/07/469556173/same-sex-adoption-upheld-by-u-s-supreme-court.
[3] Epps, Garrett. "The U.S. Supreme Court Refuses to Adopt an Alabama Ruling." The Atlantic. March 8, 2016. Accessed March 9, 2016. http://www.theatlantic.com/politics/archive/2016/03/the-us-supreme-court-refuses-to-adopt-an-alabama-ruling/472722/.
[4] Denniston, Lyle. "No Same-sex Marriages in Puerto Rico -- Yet." SCOTUSblog. March 09, 2016. Accessed March 10, 2016. http://www.scotusblog.com/2016/03/no-same-sex-marriages-in-puerto-rico-yet/.
[5] Birbrair, Lana. "The Insular Cases: Constitutional Experts Assess the Status of Territories Acquired in the Spanish-American War." Harvard Law Today. March 18, 2014. Accessed March 9, 2016. http://today.law.harvard.edu/insular-cases-constitutional-experts-assess-status-territories-acquired-spanish-american-war-video/.
[6] Morrill, Jim. "Sen. Phil Berger Names Group To Address Charlotte LGBT Ordinance." Charlotte Observer. March 8, 2016. Accessed March 10, 2016. http://wfae.org/post/sen-phil-berger-names-group-address-charlotte-lgbt-ordinance.
Photo Credit: Flickr User Ted Eytan





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