With the United States Supreme Court recently hearing arguments on the legality of same-sex marriage bans (including Michigan’s), it’s important to remember that a victory for marriage equality advocates in the Supreme Court will signify the beginning, not the end of legislation, litigation and political maneuvering over the rights of same-sex couples and religious rights groups. Many politicians in our state legislature view it as their mandate to represent the interests of groups opposed to marriage equality and the related rights afforded to married couples.
We need only look across our southern border to Indiana and highly publicized cases concerning wedding planning businesses, bakeries, and the like who maintain their “right” to refuse service to same-sex couples and weddings. Here in Michigan, we must be prepared to see the same fights and the battle lines are already taking shape in our state legislature, even before the Supreme Court’s decision is announced this summer.
As an example, House Bill 4189 was introduced to the Michigan House of Representatives on February 12, 2015 and passed the House on March 18, 2015. HB 4189 concerns the right of adoption agencies to refuse adoption services where doing so would conflict with the service’s “sincerely held religious beliefs” (i.e., opposition to same-sex couples). Of course, since same-sex couples are not singled out in the bill, if passed into law, this bill could be used to deny placement services based on any number of reasons in addition to same-sex couples, so long as the agency can point to a reason based upon religious beliefs or convictions.
The purpose of enacting such legislation should be clear. With the trend across the country and overall sentiment of the general public moving toward recognizing marriage equality, groups opposing same-sex marriages are shifting the battleground from the basic right to marry, to limiting or undercutting the rights generally afforded to individuals and married couples.
So while the general public and media are understandably focused on the Supreme Court’s decision on marriage equality (and laws or constitutional amendments banning same-sex marriage as is the case in Michigan), in all likelihood, the real issue and legal battle is yet to come. That issue is, if and when marriage equality becomes a reality throughout the country, to what extent, if any, can the Supreme Court or Legislature enforce the recognition and acceptance of same-sex marriages, particularly to those who assert a religious objection to the notion.
By way of example and from an historical perspective (and not to compare the issues of slavery and marriage equality) the 13th Amendment abolishing slavery was followed in relatively quick succession by the 14th Amendment entitling all citizens “equal protection of the laws”, as well as the 15th Amendment aimed at preventing efforts to deny or disenfranchise black voters. These subsequent Amendments and other laws were ratified because the federal government quickly realized that abolishing slavery and recognizing basic human rights to former slaves were not one and the same. Attitudes and long-held beliefs are slow to change, even after an act of Congress or ruling by the Supreme Court.
If the marriage equality movement earns a victory in the Supreme Court, it would be a significant milestone for same-sex couples and the LGBT community. But the road ahead will have many speedbumps and potholes in the form of legislation aimed at chipping away the significance of that milestone, possibly to the point of making it a hollow victory unless the states and ultimately the Supreme Court are willing to take the next steps.
One key to victory on that front for marriage equality advocates will be whether sexual orientation should be considered a “protected class”. Religious groups and many in the private sector argue that private businesses are free to operate their businesses in any way they choose without government interference. But this is not quite true. For example, Michigan’s Elliott-Larsen Civil Rights Act of 1976 already imposes laws and requirements on private enterprises to prevent discrimination in the context of employment, housing/real estate, and education. This Act protects against discrimination on the basis of religion, race, color, national origin, age, sex, height, weight, familial status, or marital status. Notably absent is sexual orientation (an issue for another day and another article).
Of course, even if sexual orientation is added as a protected class under the Act, the Elliott-Larsen Act does not go so far as to protect same-sex couples from discriminatory actions by private business owners and enterprises in all aspects, but it does demonstrate that operating in the private sector is not a complete defense to discriminatory practices.
The true legal battle will come in the form of one “protected class” versus another. Religious groups, already a protected class under the Elliott-Larsen Act, will likely go toe-to-toe against supporters of same-sex couples and the LGBT community.[1] Consequently, two groups claiming to be protected classes would assert that their fundamental rights are being violated. Religious groups will claim that providing service to same-sex couples infringes upon their religious views, while same-sex couples and the LGBT community will claim that their basic right to marry (if so ruled by the Supreme Court) is violated when private business can refuse service on the basis of sexual orientation.
While the upcoming Supreme Court’s ruling on same-sex marriage bans is certain to be a landmark legal decision and possibly a significant victory for marriage equality, it will mark only the beginning of complex legal battles sure to follow.
James Chryssikos is an experienced family law and estate planning attorney in Troy, Michigan. For more questions or information, please call us at (248) 290-0515 or visit us at www.chryssikoslaw.com
[1] It is with no small amount of remorse or reflection that the issue is simplified in this fashion. To stereotype that all religious individuals/groups are anti-gay or that all in the LBGT community are anti-religion is clearly untrue, just as saying all Republicans are anti-gay and all Democrats are anti-religion is untrue and an over-simplification. But, by way of example, 18 of the 19 sponsors of HB 4189 are conservative Republicans, so certain realities must be faced head-on.
