After marriage equality became the law of the land, lawmakers across the United States doubled down on discrimination.
Author Ryan Thoreson is a scholar in residence at the Center for LGBTQ Studies at the Graduate Center of the City University of New York and the author of “Transnational LGBT Activism: Working for Sexual Rights Worldwide” (University of Minnesota Press, 2014).
On June 26, 2015, the US Supreme Court resolved a question that had divided public opinion and profoundly shaped domestic politics for over a decade. In Obergefell v. Hodges, the Court determined that same-sex couples have the right to marry under the Due Process and Equal Protection Clauses of the 14th Amendment to the US Constitution, striking down state bans on same-sex marriage and extending marriage equality nationwide.
Justice Kennedy began the majority opinion by noting: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” In the pages that followed, he powerfully explained why banning same-sex marriage undermined the liberty, equality, and dignity of same-sex couples who were denied the option of entering into a marital union, along with all the legal and symbolic rights and responsibilities that union affords. Polls suggested that most Americans agreed; a Gallup poll taken after the ruling found that 58% of people supported recognition of same-sex marriages, while only 40% opposed it.
If anyone expected Obergefell to quell opposition to LGBT equality, though, the year that followed has proven them wrong. The months after the ruling were punctuated by dogged, if unsuccessful, resistance from wedding vendors and government officials who insisted that any involvement with same-sex marriages would constitute tacit approval and violate their religious freedom. A year later, that resistance has evolved into an unprecedented effort to curb the scope of the decision in law and policy and restrict the rights of LGBT people in various ways.
In 2015, as same-sex marriage made its way to the Supreme Court, lawmakers proposed a record 115 measures at the state and local levels to restrict LGBT rights. In 2016, after Obergefell, lawmakers have already introduced more than 200 anti-LGBT measures, shattering the previous record with attempts to minimize the right to marry and to legitimize discrimination against LGBT people in other realms. In the face of strong opposition, remarkably few of these measures have passed, but they collectively hint at the subtle ways that opposition to LGBT equality has shifted with the right to marry recognized nationwide.
A large number of the measures introduced this year have been so-called religious freedom bills, which permit individuals and businesses to refuse service to LGBT people based on their religious convictions. With the passage of HB 1523, Mississippi now protects entities from being punished by the state if they refuse service to someone because of their religious opposition to same-sex marriage, transgender people, or extramarital sex. And although the right to marry prompted the introduction of many of these bills, they are not necessarily limited to marriage alone. The passage of SB 1556 in Tennessee, for example, means that therapists and counselors in the state may decline to serve LGBT clients on the basis of their sincerely held beliefs.
A number of measures have also sought to regulate where and how transgender people can access bathrooms, locker rooms, and other gendered spaces. After fears about sexual assault in restrooms were used to defeat a raft of non-discrimination protections in Houston last fall, opponents of LGBT equality have cynically replicated that effort for political gain in states and municipalities across the US. Although they have been numerous and vicious, these efforts have proven unsuccessful with the notable exception of North Carolina’s HB 2, which requires people to use facilities according to their sex assigned at birth and precludes municipalities from expanding minimum wage and non-discrimination protections.
A year out from Obergefell, the uptick in anti-LGBT bills sharply underscores that “a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity” must encompass more than the right to marry alone. The efforts to minimize LGBT rights illustrate the importance of robust and unambiguous non-discrimination protections for sexual orientation and gender identity at the federal level, particularly in the realm of public accommodations, in the face of pervasive backlash. And as we mourn the mass shooting of LGBT Latinx clubgoers in Orlando, the past month in particular also reminds us of the structural conditions that make LGBT people, especially transgender women of color, susceptible to violence and discrimination even where the letter of the law might offer a semblance of protection. If Obergefell’s first anniversary signals anything, it is that what Obergefell will mean for LGBT communities on its second anniversary – and each anniversary thereafter – will depend on what we do to make meaning of the decision, defend the rights it recognizes, and mobilize its promises in practice.