While most wedding businesses across the country have embraced the opportunity for more business to serve same-sex couples, a small minority are holding on to their bigoted religious beliefs over business interests.
The owner of an Annapolis trolley tour company has decided to walk away from $50,000 in annual revenue instead of compromising his “Christian” convictions when same-sex marriage becomes legal in Maryland next week. And he is urging prospective clients to lobby state lawmakers for a religious exemption for wedding vendors.
Wedding vendors elsewhere who refused to accommodate same-sex couples have faced discrimination lawsuits and have lost. This business has decided to sidestep legal trouble by avoiding all weddings all together.
Supporters of anti-equality are upset because they are being discriminated for their inability to discriminate. Can they hear themselves?
As long as states refuse to grant divorces to LGBT couples, gay men and lesbians who were married or entered into a civil union in a legal equality state will continue to be mired in a legal limbo. This uneasy state of affairs raises many questions:
What if a bisexual man marries his same-sex partner in Massachusetts and when visiting his parents in Florida, he meets a woman, falls in love, and marries her? Is he guilty of bigamy if Florida doesn't recognize his Massachusetts marriage? If he and his wife travel by train across the country on their honeymoon, will he be married to his partner or his wife as they travel through Iowa, which is a marriage-equality state?
Legal conundrums exist even for couples who are able to get a divorce. Many same-sex couples who marry have lived with their partner for many years before officially tying the knot. In that time they may have accumulated property together. Because their legal marriage happened long after they first set up house together, their marital property that is subject to equitable division would only entail that which they obtained after they wed.
Will courts take into consideration property acquired prior to the legal marriage because that legal status was unavailable?
As more and more couples get married and move to states across the country, current inconsistencies in the law will eventually move the cause of same-sex marriage forward.
Expect conservatives to make arguments against the court recognizing a federal constitutional right to same-sex marriage. Many will build upon arguments of Justice Scalia in dissents in Romer v. Evans and Lawrence v. Texas, the two landmark decisions protecting gays and lesbians.
The California case, Hollingsworth v. Perry, followed the approach of Romer and Lawrence. It avoided recognizing a fundamental right or suspect classification, yet put teeth into its analysis of whether the law was rationally related to a legitimate governmental purpose -- holding that Proposition 8 instead manifested "animus" against or a rejection of the "worth and dignity of gays and lesbians as a class."
Perry was decided on narrow, "minimalist" grounds. The Ninth Circuit stated, "We need not and do not answer the broader question in this case." California "had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents." Applying Romer, the appeals court found the amendment unconstitutional because it was "left with 'the inevitable inference that the disadvantage imposed is born of animosity toward,' or ... mere disapproval of ... gays and lesbians as a class." Perry is thus a narrow decision that does not impose same-sex marriage on the whole nation.
Like many liberals heartened by the progress of the state-by-state campaign to extend same-sex marriage, we are concerned that the Supreme Court decided to review Perry. We believe our constitutional democracy would do better to proceed as it has, at least for the foreseeable future. The outcome may come down to the vote of one justice: Anthony Kennedy. Supporters of marriage equality should take some comfort from the fact that he wrote the opinions in both Romer and Lawrence.
Constitutional change typically proceeds slowly from one generation to the next. It took the Supreme Court 17 years to move from Bowers v. Hardwick (1986), rejecting a right to same-sex intimate association, to Lawrence (2003), protecting such a right. We hope it now will have taken the court 17 years to move from Romer (1996), invalidating laws reflecting animus or a bare desire to harm gays and lesbians, to striking down Proposition 8 in Perry (2013).
Boston University law professors Linda McClain and James Fleming are co-authors of Ordered Liberty: Rights, Responsibilities, and Virtues, about same-sex marriage law.