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]