Wedding Cakes and Community Building
Yesterday’s post addressed several resistance actions taken by individuals and groups who disagree with the outcome of Obergefell v. Hodges. Today’s post considers some strategy considerations in proceeding with future litigation.
Obergefell has its limitation for sure, as Jeremiah Ho wrote here. While in deciding Obergefell, the court relied on both due process/fundamental rights and equal protection grounds, the Court stopped short of finding sexual orientation as a quasi-suspect or suspect class. That leaves us to ponder the future of equality litigation, particularly that addressing the suspect class issue.
As an initial matter, governmental gender orientation discrimination must be resisted as it arises. The consequences of systemic discriminatory policies are significant and far reaching. Clerks who resist issuing marriage licenses to same sex couples deserve an immediate response. Enforcement in government policy arenas is a priority so that the reality of marriage equality can be achieved.
Resistance by governmental entities is best dispatched promptly. Today’s announcement that the Department of Defense will seek a plan whereby transgender soldiers can serve openly signals a relatively quick denouement for federal restrictions based on gender identity.
The Colorado wedding cake case has heightened significance following Obergefell. As noted yesterday, if decisions are based on state constitutional grounds, success for the plaintiffs may be within reach. However, for those who argue that gender identification must be designated a suspect classification under the federal constitution, careful thought is needed as to who will be the named respondents in future lawsuits. For several reasons, governments and large corporations may be the best targets of future gender identity and sexual orientation litigation. Individuals and small businesses may find themselves in a favorable position post-Hobby Lobby.
Secondly, if those who are not cisgendered want to assist in creating community acceptance for all gender identities, providing some litigation breathing space might be the best approach to countering resistance from individual community providers, such as wedding service vendors.
Justice Roberts’ suggestion that plaintiffs would be better off waiting for their neighbors to accept change is naïve and idealistic. Read Jonathan Todres’ analysis here. But we can provide an opportunity for marriage equality to find solid ground in communities without threats of lawsuits. A no-litigation pause can help. The fact is that change has already occurred. Obergefell saw to that. Giving our neighbors an opportunity to incorporate that change without the threat of litigation might be the best approach for community acceptance and changing social (and ultimately legal) norms. Whatever resistance remained in Massachusetts following the Goodridge decision dissolved in short order when businesses realized that a new source of income had been created.
How long should the pause be? No one has that answer. But we will soon. Each individual will be able to assess how acceptance is created, or not, in his or her own community. There are other suitable strategic lawsuits to be considered in advancing gender acceptance and elevating gender identity to suspect class status.
In the meantime, family law attorneys and wedding planners can rejoice in having been handed a new revenue stream.