by Eric Bonetti
Following the recent decision by the Sixth Circuit Court of Appeals, which reversed lower federal court rulings that struck down state anti-marriage equality legal provisions, it’s increasingly likely that the U.S. Supreme Court, sometimes called “the Supremes,” will consider the issue in the coming months. With that in mind, here are some key things you need to know about the issue.
1. True Equality Requires a Supreme Court Ruling
Recent federal decisions to recognize same-sex marriages, regardless of the state of domicile, have done much to improve the legal standing of LGBT individuals. That said, there are a number of important federal programs — including social security — in which state of domicile, versus the state in which the marriage is celebrated, determine benefit eligibility. Thus, older same-sex couples, who may not cognizant of the ins and outs of these issues, could be in for a rude awakening if they move to a jurisdiction that does not recognize their marriages.
Additionally, many family law issues are handled by state, versus federal, courts. Wills, for example, are almost always probated at the state level. Similarly, issues involving divorce and child custody are typically state matters. And wrongful death cases and other litigation often are handled in state courts. Thus, even though a married same-sex couple may reside in a jurisdiction that recognizes their marriage, they can readily face legal issues in other, less friendly, jurisdictions.
2. There’s no guarantee that the Court will hear the appeal out of the Sixth Circuit
It is a long-standing practice at the Supreme Court to decline to hear appeals until the circuit courts are in conflict, meaning that there have been decisions on both sides of an issue. This practice gives the Supremes the benefit of what it hopes are well-crafted arguments on both sides of the issue. WIth the Sixth Circuit the only federal appellate court to rule against marriage equality, it is entirely possible that the Supreme Court will decline to grant certiorari as a way to allow additional cases to make their way through the appeals process. If this occurs, there is no way to know what, if anything, the decision not to hear the case meant.
3. A Supreme Court decision may not be the sweeping ruling some are seeking
Another custom of the Court is to rule on the narrowest possible grounds. Thus, rather than striking down same-sex marriage bans nationwide, it’s entirely possible that the Court will rule, as it has in the past, on narrow procedural grounds. Or it may choose to address only specific issues in the case that comes up on appeal, versus dealing with marriage equality as plenary issue.
But no matter how the Court eventually rules, the devil is in the details, and even a favorable Supreme Court decision will leave many specific issues unanswered. For instance, some have speculated that unfriendly states will try to place restrictions on adoption by married same-sex couples. And while few would argue that there should be a “religious freedom” exemption to the federal civil rights laws that protect against discrimination based on race, gender, ethnicity, pregnancy or disability, several states already are trying to carve out such exemptions when it comes to marriage equality.
4. Married same-sex couples will still face discrimination
Another issue facing married same-sex couples will be employment discrimination. While many assume that it is illegal to base hiring decisions on sexual orientation, such actions are not illegal under federal law. Additionally, 21 states still permit employment discrimination based on sexual orientation. To make matters worse, federal legislative proposals to outlaw such discrimination have been stalled out in Congress since 1974 — a total of 40 years, with no relief in sight. So there is still a great deal of work to be done, even with the tremendous progress that has been made on marriage equality.
5. Discrimination is alive and well in The Episcopal Church
Let me say upfront that I am proud of our denomination and our efforts to end discrimination. And living in Northern Virginia, once a hotbed of property recovery litigation, I am only too well aware of the heavy near-term price we have paid for social justice.
That said, many LGBT clergy friends have faced difficulty in finding suitable employment. And accounts of subtle discrimination, such as LGBT parishioners who get the cold shoulder in otherwise friendly congregations, abound. Similarly, even in inclusive parishes it is not uncommon for LGBT parishioners to face group and individual bullying.
Lacking the equivalent of the Ending Racism training that is held in many dioceses, LGBT church members in parishes where clergy are reluctant to intervene will likely continue to be left to fend for themselves for the foreseeable future.
6. You can make a difference
The old saying that all politics is local remains very true. While our dioceses and the national church have an important role to play in promoting marriage equality and ending prejudice, many of the challenges faced by LGBT persons occur at the local and parish level.
On the one hand, it’s important not to underestimate the importance of day-to-day actions, whether it’s a matter of extending a warm greeting to LGBT couples who visit our parishes, or treating same-sex spouses as the true equivalents of opposite-sex spouses. (Ask a married same-sex couple how often they have gotten the question in church, “And how’s your friend?” if you want an unpleasant surprise.)
On the other hand, formal efforts to increase participation by all minorities, including LGBT persons, in our vestries, standing committees, and other ministries, are vitally important. It’s easy to say that we welcome LGBT persons, but how many dioceses have no openly LGBT individuals on their standing committees?
Lastly, if you see something, say something. My experience is that, when LGBT parishioners face bullying or other bad behavior, friendly parishioners may resent the bad behavior, but be reluctant to speak up and say, “knock it off.” In part, the problem is the whole “churchy nice” paradigm. Sometimes, the issue is a fear of alienating fellow parishioners. But regardless of the reason, taking a pass in the face of injustice and oppression almost invariably violates our baptismal covenants.
My prayerful hope is that the Supreme Court will quickly act to afford same-sex couples in all states the same rights as held by opposite-sex married couples, namely the right to form loving, committed families, recognized by law.
Eric Bonetti is a former nonprofit professional with extensive change management experience. He now works as a realtor.