Marriage equality? Not so fast

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Supreme Court's 5-4 decision in Obergefell v. Hodges is a landmark ruling for America

Tim Holbrook: While this is a big step for equality and inclusion, inequality and murky questions remain

Editor’s Note: Tim Holbrook is professor of law at Emory University School of Law. He is a frequent LGBT commentator and has served as co-counsel for NFL players at the Supreme Court advocating for marriage equality. The opinions expressed in this commentary are solely those of the author. (This commentary was originally published on June 29, 2015).

CNN  — 

The decision for a gay, lesbian, bisexual, or transgender (LGBT) person to “come out” is a difficult and emotional one. For me, coming out in 1998 meant accepting that something I had always dreamed of – getting married – would never come true. At that time, marriage was not a legal option, and I thought it never would be.

Fortunately, I was wrong and that dream has been realized. Last July I married my husband in Illinois and now, because of the Supreme Court’s 5-4 decision in Obergefell v. Hodges, I am now legally married in my home state of Georgia and, indeed, across the United States.

Tim Holbrook

Justice Anthony Kennedy, writing for the majority, captured the significance of marriage to the LGBT community: “No union is more profound than marriage. … It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. …They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

And with that powerful language, the doors to marriage opened for gays and lesbians across the country. This is a historic moment that brings much joy and tears to LGBT people all across America.

Related: How businesses can still discriminate against LGBT people

While that is an important step for equality and inclusion for LGBT people, it is just that – a step. Inequality and murky questions remain.

Full LGBT equality

The Court’s decision will have an immediate impact in a few areas, and LGBT people will be treated equal to straight couples.

  • Social Security and taxes Same-sex couples will now be treated equal to opposite-sex couples when it comes to filing their taxes and receiving Social Security benefits.
  • Inheritance Married same-sex couples will now inherit property in the absence of a will in the same ways opposite-sex married couples do.
  • Hospital visitation and medical decisions A spouse has the right to visit the other spouse in hospitals and make medical decisions if one becomes incapacitated. Those in same-sex marriages now get those rights.
  • Divorce While it’s perhaps odd to discuss divorce on the day the Supreme Court provides marriage rights, it is important. At present, married same-sex couples living in states that didn’t recognize their marriage could face great difficulty getting a divorce, because the state wouldn’t hear the case. Now, they can get divorced in the state in which they reside.

LGBT inequality remains

The reach of the Obergefell decision is somewhat limited. There are a number of areas in which the LGBT community will face unequal treatment.

  • Nondiscrimination protections The court’s decision has no impact on nondiscrimination protections for LGBT people. There is no federal law that prohibits discrimination against the LGBT community in employment, housing or public accommodations. There remains a patchwork of protections at the state level. Only 18 states and Washington, D.C., ban all LGBT discrimination, while three other states only prohibit discrimination based on sexual orientation. The others offer no state level protection, though local governments may provide protection.
  • Equal protection for the LGBT community The Obergefell decision did not determine whether the LGBT community should be treated in a manner akin to race, gender, religion or national origin under the Constitution’s Equal Protection Clause. When a law uses a suspect classification, it is rarely found to be constitutional. The laws only survive if they advance a compelling government interest in the least restrictive means possible – an incredibly difficult standard to achieve.
  • Blood donations Currently, men who have had sex with other men (MSM) are unable to donate blood. This policy is based mainly on the fears of the HIV virus entering the blood supply. Nevertheless, the policy has been criticized as outdated and discriminatory because straight blood donors who have engaged in high risk behavior are not prohibited. The Food and Drug Administration has suggested changing the policy to allow donations from MSM if they have not had sex with another man in the last year. Even if adopted, that policy would continue to exclude married gay men.

Impact remains to be seen

Marriage pervades many aspects of our daily life. As such, the court’s decision may have repercussions in other areas that affect the rights of the LGBT community.

  • Adoption Some states do not allow same-sex couples to adopt. In light of Obergefell, courts likely will strike down such prohibitions, particularly as child-rearing is viewed as an important aspect of marriage. Nevertheless, the decision itself does not expressly address that issue. States that are resistant to same-sex marriage may try to retain such adoption limits. Ultimately, these efforts will fail, but it will take some time to clarify that issue.
  • Religious accommodations for those opposed to same-sex marriage As the controversy in Indiana last spring showed, much of the opposition to same-sex marriage is religiously based. States have attempted to use Religious Freedom Restoration Acts to provide greater protections for religious liberties. As the Supreme Court majority noted Friday, churches that oppose same-sex marriages will not be forced to perform them. That would violate the First Amendment’s protections for religious liberty. Nevertheless, same-sex marriages will create difficulties for religious institutions. As Chief Justice John Roberts asked, will religious institutions that provide married student housing be forced to allow same-sex married couples into such housing, even if their faith finds same-sex relationships to conflict with their beliefs? Can a religious employer refuse to hire, or even fire, someone who is in a same-sex marriage? These interstitial areas will have to be addressed.

Friday’s decision is a landmark decision. But it does not answer all the issues faced by the LGBT community and, indeed, it may generate new ones.

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