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In 303 Creative ruling, SCOTUS marks ‘gays and lesbians for second-class status’

Decision was 6-3 along ideological lines

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The Supreme Court as composed June 30, 2022 to present. Front row, left to right: Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Samuel A. Alito, Jr., and Associate Justice Elena Kagan. Back row, left to right: Associate Justice Amy Coney Barrett, Associate Justice Neil M. Gorsuch, Associate Justice Brett M. Kavanaugh, and Associate Justice Ketanji Brown Jackson. (Photo Credit: Fred Schilling, The Supreme Court of the U.S.)

The U.S. Supreme Court’s conservative supermajority on Friday ruled in favor of Lori Smith, the graphic artist who did not want to make wedding websites for same-sex couples despite Colorado’s nondiscrimination law barring discrimination on the basis of sexual orientation.

“The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands,” Justice Neil Gorsuch wrote in the majority 6-3 decision along ideological lines in 303 Creative v. Elenis.

The liberal justices, however, called the majority’s finding of a free speech exemption to nondiscrimination rules “unprecedented,” warning it would blow a hole through these laws and pave the way for anti-LGBTQ discrimination by businesses.

“Today the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Justice Sonia Sotomayor wrote in her dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.

The liberal justices argued the Colorado law targets conduct, not speech.

“Today is a sad day in American constitutional law and in the lives of LGBT people,” Sotomayor wrote. “The immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

Biden, U.S. lawmakers, LGBTQ groups weigh in

President Biden reacted saying in a statement released by the White House:

“In America, no person should face discrimination simply because of who they are or who they love. The Supreme Court’s disappointing decision in 303 Creative LLC v. Elenis undermines that basic truth, and painfully it comes during Pride month when millions of Americans across the country join together to celebrate the contributions, resilience, and strength of the LGBTQI+ community. While the Court’s decision only addresses expressive original designs, I’m deeply concerned that the decision could invite more discrimination against LGBTQI+ Americans. More broadly, today’s decision weakens long-standing laws that protect all Americans against discrimination in public accommodations – including people of color, people with disabilities, people of faith, and women.
 
My administration remains committed to working with our federal enforcement agencies to rigorously enforce federal laws that protect Americans from discrimination based on gender identity or sexual orientation. We will also work with states across the country to fight back against attempts to roll back civil rights protections that could follow this ruling. And we will accelerate our march towards full equality for every American.
 
When one group’s dignity and equality are threatened, the promise of our democracy is threatened and we all suffer. Our work to advance equal rights for everyone will continue. That is why we must pass the Equality Act, which will enshrine civil rights protections for LGBTQI+ Americans in federal law and strengthen public accommodations protections for all Americans. I urge Congress to swiftly send this legislation to my desk.”

Shannon Minter, legal director of the National Center for Lesbian Rights, shared an emailed statement with the Blade:

“As the dissenting justices rightly stress, this is a deeply disappointing decision that, for the first time in our nation’s history, holds that the Constitution permits discrimination in the commercial sphere,” adding, “There is no principled basis for this egregious departure from more than a hundred years of precedent.”

On the other hand, Minter said, “the scope of the ruling is incredibly narrow and will not apply to the overwhelming majority of businesses,” but “Unfortunately, the State of Colorado stipulated to a number of ‘facts’ about the designer’s hypothetical service of designing websites for weddings,” which “provided a basis, however flimsy, for the majority to rule as it did, including Colorado’s stipulation that the designer picks and chooses which clients she will serve based on whether she agrees with their viewpoints, that each site she designs is customized and original, and that the sites are ‘art’ and express her own personal views, not those of the clients.” 

Minter said “Very few other businesses meet these criteria, so this ruling will have little if any application to ordinary businesses, including those that involve some element of creativity or expression. Under the majority ruling, it is not enough that a service is creative or expressive, the business must selectively choose clients, not open its doors to all, must create a highly customized product, and it must be clear that the product is expressing the views of the business owner, not the customer.  There are very few such businesses.” 

“Nonetheless, this is a sad day for our country and our Constitution. The majority has gone out of its way to gerrymander an exception to nondiscrimination laws that sends a terrible message—especially to LGBTQ people—at a terrible time, when there is a resurgence of anti-LGBTQ bias and a backlash against equality for women, people of color, and LGBTQ people. I am confident our county will rise above this moment, as we have done in the past, but this is a painful day,” Minter said.

Among the first advocacy groups to condemn the decision was the National Black Justice Coalition, a leading Black LGBTQ+ civil rights organization.

“The anti-democratic, segregationist, white nationalistic Alliance Defending Freedom (ADF), which is party to this case, has a well-documented history of using legal strategies to erode LGBTQ+ rights, perpetuating discrimination and stigmatization,” said the Coalition’s Executive Director David Johns.

“A perilous precedent is set when the ADF is allowed to manufacture a case in search of a solution to a problem that doesn’t even exist for the plaintiff, undermining the principles of justice, equality, and nondiscrimination that are the bedrock of our nation,” he said.

ADF, which represented the plaintiff Lori Smith, is described by the Southern Poverty Law Center as an anti-LGBTQ hate group.

Minutes later, America’s largest LGBTQ organization, the Human Rights Campaign, issued a press release: “Make no mistake, this case was manufactured by the Alliance for Defending Freedom to create a new license to discriminate against LGBTQ+ people,” said HRC President Kelley Robinson.

“Despite our opponents claiming this is a major victory, this ruling does not give unfettered power to discriminate,” Robinson wrote. “This decision does not mean that any LGBTQ+ person can be discriminated against in housing, employment or banking—those protections remain enshrined with federal law.” 

U.S. Sen. Tammy Baldwin (D-Wis.), America’s first openly gay senator, was among the first members of Congress to address the ruling, writing in a statement:

“This is about fairness and freedom – about whether LGBTQ+ Americans deserve fairness and freedom to be treated just like everyone else. It is simply wrong to discriminate against any American based on who they are or who they love, and Americans agree. This decision is a step backward in our fight to live up to our nation’s ideal of equality, but we cannot let this activist Supreme Court have the last word. I am more committed than ever to fighting to ensure every American can live freely and without discrimination.” 

The U.S. Congressional Equality Caucus, through its Chair, U.S. Rep. Mark Pocan (D-Wis.), issued a statement arguing that Friday’s “abhorrent” decision “provides a constitutional basis for businesses that provide customized expressive services to discriminate against all marginalized people currently protected by public accommodations nondiscrimination laws.”

U.S. Rep. Mark Takano (D-Calif.), a co-chair of the Equality Caucus, called Friday’s ruling “horrifying and stunning” in a statement, writing “Today’s harmful decision opens the door for unimaginable legal discrimination against marginalized people.”

Takano added, “We must expand the Supreme Court immediately.”

“Millions of Americans,” wrote the Democratic Attorneys General Association, “have been rightly concerned that the floodgates would open to a raft of legal challenges to vital LGBTQ+ protections.”

The group added, “Between rulings like this, waves of extreme and hateful legislation, and an increase in anti-LGBTQ+ threats and violence, the fact is that this is indeed a frightening time for the LGBTQ+ community.”

GLAAD’s statement noted that “Not one LGBTQ couple sought the business’ services so this case is a massive abuse of the judicial system and part of a coordinated effort from groups like the Alliance Defending Freedom to leverage corrupt extremist justices to roll back rights of marginalized Americans.”

Departing from the LGBTQ and civil rights advocacy groups that universally objected to Friday’s ruling was the conservative LGBT organization, Log Cabin Republicans.

“Today’s Supreme Court decision is a win for anyone who believes, as LGBT conservatives do, in freedom of speech and religious expression, even when we may not agree with it,” said LCR President Charles Moran.

“LGBT conservatives,” he said, “have long believed, as Justice Gorsuch wrote in his opinion, that ‘tolerance, not coercion, is our nation’s answer, and forcing anyone to create expressive speech with which they disagree is a massive step backwards.””

 

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Trump asks Supreme Court to allow restrictions on gender-affirming care in prisons

SCOTUS could further restrict rights of trans inmates

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The U.S. Supreme Court with an LGBTQ Pride flag flying in front of it. (Washington Blade Photo by Michael Key)

The Trump administration has asked the Supreme Court to allow its policy limiting gender-affirming treatment for federal inmates to take effect while a legal challenge plays out in court.

U.S. District Judge Royce Lamberth ordered the government to continue providing gender-affirming care, such as hormone therapy, which had become policy nearly a decade ago for inmates who were transitioning.

The Trump administration argues in its application that its policy restricting transgender rights was properly adopted and that the judge overstepped, posing nationwide “security and prison-administrative concerns.”

If allowed, the policy would halt surgeries, hormones and social accommodations such as wigs while allowing mental health therapy to continue as the legality of the policy reversal is litigated.

The government also argues in the application that the Bureau of Prisons had “determined that sex-trait-modification surgeries, hormone interventions in general, and social accommodations could no longer be justified as treatment for gender dysphoria.”

American Civil Liberties Union attorneys for the inmates said the policy is “a direct threat to the well-being of transgender people in federal custody and an open violation of their fundamental rights,” and said withholding necessary gender-affirming healthcare constitutes cruel and unusual punishment.

The Blade has covered the ongoing developments surrounding changes to Federal Bureau of Prisons transgender inmate policy that went into effect earlier in Trump’s term. The changes primarily focus on rolling back Biden-era protections for trans inmates.

Earlier this year, the Blade published a joint letter from multiple senators in response to the rollback of the policy. Multiple senators — including Edward Markey (D-Mass.), Jeffrey A. Merkley (D-Ore.) and Mazie K. Hirono (D-Hawaii) — sent a letter to Attorney General Todd Blanche and Federal Bureau of Prisons Director William Marshall III calling for them to reverse the policy change, saying it endangers inmates’ health and safety.

The senators described how the policy shift, along with President Trump’s Executive Order 14168, titled “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” is forcing policy changes they argued are rooted more in political rhetoric than in medical research or evidence-based correctional practices.

Federal Bureau of Prisons responded to the Blade’s request for comment in May, declining to reconsider its transgender inmate policy.

The Blade reached out to the Federal Bureau of Prisons once again over the application to the Supreme Court, but did not hear back before publication.

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Supreme Court upholds state laws banning trans athletes from sports teams

Justices heard oral arguments in two cases in January

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Tuesday upheld state laws that ban transgender athletes from school sports teams that correspond with their gender identity.

The justices in January heard oral arguments in two cases — Little v. Hecox and West Virginia v. B.P.J. — that challenged laws in Idaho and West Virginia respectively.

Both cases question the constitutionality of laws from both states that block trans girls from participating on girls’ teams at publicly funded schools — specifically if these bans violate the 14th Amendment’s Equal Protection Clause and Title IX. Since 2020, 27 states have banned transgender youth from playing school sports.

In a 6-3 decision made on party lines, the conservative justices asserted that laws prohibiting trans women and girls from participating in sports programs at publicly funded schools does not violate either constitutionally protected right. Notably the ruling does not require any state to categorically bar transgender girls from participating on girls’ sports teams, or transgender boys from participating on boys’ sports teams.

In the majority for the case, Justice Brett Kavanaugh delivered the opinion. It holds that schools can determine eligibility for women’s and girls’ sports teams based on biological sex. It also holds that West Virginia did not violate Title IX, which bars educational programs that receive federal funding from discriminating based on sex.

“Consistent with Title IX and the Equal Protection Clause, we hold that the States may maintain women’s and girls’ sports for biological females. They may determine eligibility for women’s and girls’ sports based on biological sex,” Kavanaugh wrote. “The Constitution and Title IX do not require an overhaul of women’s and girls’ sports throughout America.”

The Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett joined Kavanaugh’s majority opinion. It permissibly maintains female sports for biological females.

In his conclusion, Kavanaugh shares his belief of the importance of sports to women and girls but also a caution that “[n]o student-athlete on either side of the issue … deserves to be ostracized or vilified.”

Justice Sonia Sotomayor opinion was concurring in the judgment in part and dissenting in part. Justices Elena Kagan, and Ketanji Brown Jackson joined Sotomayor’s opinion.

In her dissent, Sotomayor explains that the majority opinion, while attempting to protect one groups Constitutional rights (those assigned women at birth), it puts another group’s constitutional rights (trans women) at its expense and in principle violates the Equal Protection Clause of the 14th Amendment.

“Because the majority, however, inflicts a hardship on those it disfavors without giving them the fair and full opportunity the Constitution requires to litigate their contentions, I respectfully dissent,” Sotomayor wrote, eventually pointing to how the states had evaluated issues of trans sports participants prior to these bans as evidence of general omission. “The ban eliminated this individualized approach in favor of categorical exclusion.”

She also pointed out that these rules to not equally exclude, further bolstering her argument that the majority opinion was not created with the truest sense of the Equal Protection Clause at its center.

“Teams “designated” for “females” “shall not be open to students of the male sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.” Teams “designated” for “males” do not have the same restriction.”

Jackson wrote in her dissent that this ban does explicitly allow for sex discrimination in any school or education program that receives federal funding.

“A transgender woman penalized for being perceived as aggressive has experienced discrimination ‘on the basis of sex’ just as much as a cisgender woman has, no matter that the transgender woman’s behavior matches expectations of her sex assigned at birth,” Jackson said. “Either way, the institution has imposed its gender-based expectations upon her. And either way, the institution may have violated Title IX.”

In West Virginia v. B.P.J., the case centers on B.P.J., a trans girl who was barred from competing on her school’s girls’ cross-country and track teams under West Virginia’s Save Women’s Sports Act, enacted in 2021. Under the law, it requires participation to be based on the athlete’s biological sex as indicated on their original birth certificate issued at the time of birth.

In Little v. Hecox, the details are slightly different, but ask the same 14th Amendment and Title IX questions but against Idaho’s Fairness in Women’s Sports Act. In this case Hecox, a trans woman and student at Boise State University wished to join the women’s cross-country team, but couldn’t under the law. She, with a cisgender athlete filed a suit against the governor, arguing the Equal Protection Clause of the 14th Amendment explicitly protects their rights to participate on the woman’s team.

Trans rights activists have criticized the highest court in the land’s decision, highlighting it legally allows for discrimination based on gender identity — something they argue is a foundational element of the spirit of the Equal Protection Clause.

Jennifer Levi, senior director of Transgender and Queer Rights at GLAD Law outright called the six conservative justices view of Equal Protection and Title IX as “wrong.” 

“Today’s ruling gets it wrong. And it’s kids who will suffer for it. By upholding these blanket bans, the Supreme Court has allowed states to deny students even the chance to try out for a school team, simply because they are transgender,” Levi told the Washington Blade in a statement. “Policies that categorically bar students don’t advance fairness; they mandate exclusion.” 

She continued, pointing out excluding some for the protection of others does not ensure fairness as the justices are arguing in their opinion.

“When a law bars every transgender girl regardless of age, hormones, or physiology, it isn’t about competitive fairness. It’s about keeping transgender kids out. We can protect women’s sports without doing that. Most of the country already does.”  

Chris Erchull, senior staff attorney at GLAD Law, pointed out that while disappointing, the court does not mandate discrimination as the policy.

“This ruling does not require any state to follow West Virginia’s or Idaho’s cruel, overly-broad approach, and it does not mandate categorical bans on transgender students participating in school sports,” Erchull said. “It also leaves intact broader nondiscrimination protections for transgender students in education, including Title IX’s protections against sex discrimination for LGBTQ+ students. Discrimination has no place in our schools, and we can and should ensure that every student has the opportunity to learn, to thrive, and to know that they belong.”  

Sasha Buchert, senior attorney and director of the Nonbinary and Transgender Rights Project at Lambda Legal, also emphasized the bad faith argument the majority opinion pushes for the sake of one exclusionary view of the Equal Protection Clause and Title IX.

“This ruling is deeply harmful for transgender women and girls who only asked for the ability to participate in sports with their peers,” Buchert said. “Countless studies have demonstrated the myriad benefits that come with participation in team sports. Now, one population, transgender youth and collegians, are targeted for specific and baseless discrimination. We will not be deterred and will continue to fight back to secure the equal participation that all youth, including transgender youth, deserve.”

Joshua Block, senior counsel for the American Civil Liberties Union’s LGBTQ & HIV Rights Project also echoed the lasting negative impact this ruling will have for trans Americans.

“This is a heartbreaking ruling for our clients and transgender girls like them who’ve asked for nothing more than the same opportunities afforded to their peers.” Block said. “The reality is that the equality of transgender women and girls takes nothing away from, and in fact promotes, the equality of all women and girls. We will continue to advance the fundamental principle that all young people deserve equal opportunity to thrive and succeed.”

Shannon Minter, legal director for the National Center for LGBTQ Rights, who himself is trans, issued a statement, reassuring that while upon face value the decision seems to undermine the rights of trans sports participants, it does not make that the rule.

“Today’s limited decision means that states and schools across the country still have the power to make reasonable rules to ensure fairness without banning all transgender girls,” said Minter. “Like other health or medical considerations in sports, reasonable policies for transgender student athletes rely on individual assessments rather than blanket bans. Every child deserves the chance to play sports with their friends and learn the lessons sports teach, including determination, resilience, and teamwork.” 

Kelly O’Neill, an attorney for Legal Voice’s from Idaho also provided a statement to the Blade.

“It is profoundly unfair to deny a young person the benefits of teamwork and dedication because of who they are,” O’Neill said. “We should be removing barriers for girls and women in sports, not creating new ones.”

Human Rights Campaign President Kelley Robinson came to a similar conclusion.

“No kid — not my kid, not your kid, not any kid — deserves to be discriminated against. Yet this ruling is heartbreaking for transgender student athletes who are being forced to sit on the sidelines simply for who they are. When politicians convince the public that any girl could be ‘the wrong kind of girl,’ they invite harassment, intimidation, invasive questioning, or even an inspection of their body by a total stranger,” Robinson wrote in a statement shared with the Blade. “It’s sadly just the latest decision by the conservative justices on the Supreme Court to roll back protections for marginalized communities and create a second class citizenship for millions of people. We are sacrificing the dignity, privacy, and safety of America’s young people to solve a problem that was manufactured and exploited for political gain … We must continue this fight with full force until freedom, justice and equal opportunity are not flimsy promises, but nationwide guarantees.”

GLAAD President Sarah Kate Ellis, who presides over the world’s largest LGBTQ media advocacy organization, issued a statement on the ruling.

“This decision is at odds with the fundamental principles of fairness, freedom, and family that define our country and our communities. By allowing sweeping restrictions on a very small number of transgender students who simply wanted to participate in sports alongside their peers, the ruling creates an unnecessarily unfair playing field,” Ellis said. “Personal freedom and opportunity are best served when our legal protections expand access and guarantee safety for everyone. Today’s decision unfairly strips the rights of a few and threatens the ability of every girl and woman to play the sports they love.”

On the other side of the ideological isle, U.S. Sen. Jim Risch (R-Idaho) applauded the Supreme Court’s decision to uphold the state’s women and girl trans sport ban. In a statement the Republican called the court’s conservative view of as a win for “women, fairness, and the Gem State.”

“Idaho was the first state in the nation to ban biological men from competing in women’s sports and uphold the opportunities Title IX promised more than 50 years ago,” Risch said in a statement. “The Supreme Court’s decision affirms those protections and the generations of women who fought for fair, equal athletics.”

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11 years after Obergefell, marriage equality remains under scrutiny

Landmark ruling issued on June 26, 2015

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(Washington Blade photo by Michael Key)

Friday marks 11 years since the U.S. Supreme Court ruled the Constitution protects same-sex marriage in Obergefell v. Hodges. Despite that major win for LGBTQ people nationwide, the case may be on shakier ground than originally thought.

Obergefell v. Hodges, the case that determined the Constitution extends its protection of rights to same-sex couples and that states must recognize marriage licenses for same-sex couples from other states, was decided using a combination of cases from several states.

The central arguments in the case rested on the 14th Amendment’s Equal Protection Clause, Due Process Clause, as well as collateral spousal and parental rights.

Cases in play

The first case came from Michigan with DeBoer v. Snyder, where a lesbian couple, who were not legally allowed to marry in the Mitten State, attempted to adopt their third child but could not both obtain legal parental rights. April DeBoer and Jayne Rowse initially received a favorable ruling in district court, with the judge finding that the Michigan Marriage Amendment — which barred same-sex marriage in the Midwestern state — violated the Equal Protection Clause. The same day, the case was appealed to the 6th U.S. Circuit Court of Appeals, eventually making its way, along with the other five cases, to the highest court in the land.

Ohio had multiple cases that ultimately contributed to the judicial acknowledgment of same-sex marriage rights in the U.S.

The Supreme Court case most commonly associated with the fight for same-sex marriage — Obergefell — originated in Ohio. Beginning as Obergefell v. Kasich in the state, James Obergefell knew his longtime boyfriend, John Arthur, was suffering from ALS. Knowing Arthur’s life would end shortly — and understanding the couple could not legally marry in Ohio — they boarded a medically equipped plane, accompanied by a nurse and Arthur’s aunt, Paulette, and flew to BWI Airport in Maryland. There, they were legally married. Over the next several months, Arthur’s health continued to decline until he eventually passed away in October.

The legal battle began after Arthur died, as Ohio law refused to acknowledge that Obergefell was his husband and would not list him as Arthur’s surviving spouse on his death certificate. Obergefell challenged the decision, arguing it was unconstitutional and pursuing legal action. The local Ohio registrar agreed that refusing to recognize their out-of-state marriage license — which Ohio had recognized for different-sex couples in the past — discriminated against the couple. Despite that, the state attorney general continued to defend Ohio’s same-sex marriage ban.

The judge ultimately ruled that “a marriage solemnized outside of Ohio is valid in Ohio if it is valid where solemnized,” marking another step toward marriage equality. Ohio appealed the ruling, and the case ultimately contributed to the establishment of same-sex marriage protections under the federal Constitution.

The second Ohio case, Henry v. Wymyslo, much like DeBoer v. Snyder, involved parental rights for adopted children. The case included four couples — three lesbian couples who lived in Ohio and adopted children while residing there, and one gay couple from New York with an adopted son born in Ohio. The four couples filed a lawsuit against Ohio, seeking to require the state to list both parents on their children’s birth certificates.

Eventually, the judge — the same one who presided over Obergefell v. Kasich — ruled that the state must list both parents on their children’s birth certificates. Like many cases that make their way to the Supreme Court, it went through multiple appeals before ultimately reaching the nation’s highest court.

Kentucky also had two cases that contributed to the legal battle for same-sex marriage.

The first, Bourke v. Beshear, revolved around Gregory Bourke and Michael DeLeon, a same-sex couple married in Canada in 2004, and Randell Johnson and Paul Campion, who were married in California in 2008. Like DeBoer v. Snyder and Henry v. Wymyslo in their respective states, the plaintiffs challenged Kentucky’s ban on same-sex marriage and its refusal to recognize same-sex marriages performed in other jurisdictions so that both parents could be acknowledged on their children’s birth certificates.

The judge ultimately ruled, much like in Obergefell v. Kasich, that states constitutionally must recognize legally performed out-of-state marriages.

Love v. Beshear is the second case from the Bluegrass State.

Maurice Blanchard and Dominique James were denied a marriage license by Kentucky county clerks. The couple’s legal team filed to join Bourke v. Beshear, another case actively challenging the state’s ban on same-sex marriage, and the motion was approved, with the case restyled as Love v. Beshear. The judge ultimately ruled that Kentucky’s bans on same-sex marriage explicitly “violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they are void and unenforceable.”

The final case, Tanco v. Haslam, involved four same-sex couples who filed suit in Tennessee. Each couple had married outside Tennessee before moving to the state, with nearly all relocating for employment. One worked for the military, whose marriage was already recognized by the Department of Defense; one worked for the state; and two were professors. Seeking to have their out-of-state marriages recognized in Tennessee, the four couples filed Tanco v. Haslam in U.S. District Court for the Middle District of Tennessee. The court eventually granted a preliminary injunction requiring the state to recognize the marriages of the three plaintiff couples but denied the request to overturn Tennessee’s same-sex marriage ban.

To SCOTUS

All of these cases contributed to the legal challenge against same-sex marriage bans across the country and ultimately led to a 5-4 ruling that allowed same-sex couples to have their marriages recognized in all 50 states, Guam, Puerto Rico, and D.C.

The justices voted as follows: Anthony Kennedy, who authored the majority opinion, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan supported Obergefell while Chief Justice John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito all dissented.

The court held that the 14th Amendment — specifically its Due Process Clause — guarantees the right to marry as one of the fundamental liberties it protects, regardless of the gender of those getting married.

The court also ruled that another provision of the 14th Amendment — the Equal Protection Clause — extends the right to marry enjoyed by different-sex couples to same-sex couples, finding that denying same-sex couples that right violates their right to equal protection under the law.

Some of the Supreme Court justices who dissented argued that this was a state issue, not a federal one, because the Constitution makes no mention of same-sex couples. They said it was beyond the purview of the court to decide whether states must recognize or license such unions. The dissenters argued that the majority was engaging in judicial policymaking, which they contended is not permitted under U.S. law.

Another argument made by the dissenting conservative justices was that the majority opinion infringed on religious freedom by engaging in this “judicial policymaking” rather than allowing state legislatures to determine the laws governing marriage.

Since the ruling

According to data from the Williams Institute, 823,000 same-sex couples are now legally married — more than twice the number in 2015 — as a result of the Supreme Court’s decision.

The ruling also increased the number of same-sex families raising children, largely because it removed legal barriers and paperwork restrictions that had prevented same-sex couples from being listed as parents. The data shows there are nearly 299,000 children under the age of 18 being raised by married same-sex couples as a result of Obergefell.

The states that saw the largest increases — and the most favorable changes to marriage rates — were in the South. The percentage of cohabiting same-sex couples who were married between 2014 and 2023 increased from 38 percent to 59 percent.

Many of the married same-sex couples surveyed said marriage improved their sense of safety and security (83 percent), life satisfaction (75 percent), and relationship stability (67 percent).

“Marriage equality has significantly benefited the lives and well-being of same-sex couples, their families, and the communities where they live,” said Christy Mallory, interim executive director and legal director at the Williams Institute.

Future of Obergefell

While same-sex marriage remains the law of the land, there have been multiple attempts by conservative and religious figures in America to reverse it.

In 2025, Kim Davis, the clerk of Rowan County, Ky., who made headlines 10 years earlier after refusing to issue marriage licenses following the striking down of same-sex marriage bans, approached the Supreme Court with the goal of getting Obergefell overturned.

She argued that the ruling put her religious beliefs at odds with her job and asked the court to strike it down. The consensus was nearly unanimous, holding that when a person serves as an agent of the state, they cannot place their personal religious beliefs above state policy because they are acting on behalf of the government.

Thomas, one of the Supreme Court’s most conservative justices, has also attempted to plant the seeds for overturning Obergefell.

In Dobbs v. Jackson Women’s Health Organization, which ultimately restricted abortion access in the country, he wrote a concurring opinion suggesting that Obergefell, along with several other precedents, should be “reconsider[ed].”

Later, without directly addressing Obergefell, Thomas told an audience at Catholic University’s Columbus School of Law that he didn’t “think that … any of these cases that have been decided are the gospel.”

While President Donald Trump has not implemented any executive restrictions on same-sex marriage during his presidency, his administration has made it clear that it opposes continued efforts to expand protections for same-sex couples, particularly when doing so conflicts with claims of “religious freedom.” The administration has attempted to remove sexual orientation and gender identity from federal health care and housing nondiscrimination protections and has significantly restricted the rights of transgender Americans.

Currently, same-sex marriage remains federally protected by the Respect for Marriage Act, and the Supreme Court has thus far declined to overturn Obergefell.

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