The Major Anti-Gay Loopholes That Still Exist, Even Now That Marriage Equality Is Finally Here
Before the last bit of celebratory confetti has hit the ground, I'm going to rain on the parade. Yes, this historic Supreme Court ruling gave same-sex couples the legal right to marry. Yes, this is the result of decades of work and should absolutely be counted among the biggest victories in the LGBT community and for the Untied States as a whole. But unfortunately, it doesn't mean that gay couples will have the same rights as straight marriages. Same-sex marriages will now face a patchwork of state-level laws limiting their rights — even as a legally recognized couple.
Before the ruling, a state line could determine a gay couples rights to next of kin, medical insurance, tax deductions and a host of other benefits that, as husband and wife, would follow a couple anywhere in the country. Individual states will no longer be able to determine if gay couples are actually married. SCOTUS told them, without a doubt, that they were.
But some states are still trying to limit the scope of same-sex marriages. Issues such as religious freedom laws and adoption could still plague gay married couples, their rights still dependent on nothing more than their geographic location.
Emily Hecht-McGowan, director of public policy at the Family Equality Council, told The New York Times:
Marriage does not solve all. It provides innumerable protections, rights and responsibilities to married couples and parents raising children in a marriage. But it doesn’t come close to solving all of the legal and recognition issues that same-sex couples and their children face.
Here's a look at what issues gay couples will face even after they've tied the knot.
Certainly children have been a central part of the argument for the legalization of gay marriage. Gay couples have faced many hurdles in legally recognizing both parents of an adopted child as parents. As it stands now, in states where same-sex marriage isn't legal, couples who are legally married in other states often cannot adopt children.
For the most part, the SCOTUS ruling would untangle many of those legal quandaries. But in Mississippi and Utah, where same-sex couples are expressly barred from adopting children, even recognition of their marriage would still leave them without the ability to adopt.
States have other creative ways of getting around same-sex marriage recognition. In June, before the SCOTUS ruling, Michigan Gov. Rick Snyder signed a bill that advocates call religious freedom act for adoption (Snyder says he doesn't support RFRA laws). The law would allow adoption agencies the right to refuse referrals if it violates their beliefs, i.e., if a Christian adoption agency thought that same-sex marriages did not adhere to the religion's teachings, they could refuse to let married same-sex couple adopt. Similar laws are already in place in Louisiana and Mississippi.
"These RFRA (Religious Freedom Restoration Act) adoption bills are the most egregious example of religious conservatism run amok in our government," said Michigan Sen. Coleman Young after the bill passed. "Children are in desperate need of stable and loving homes. And today, we're slashing those opportunities because of archaic, closed-minded thinking."
And that brings me to my next point.
Religious exemption laws
Oh, the passive aggressive world of RFRA laws at large. Indiana's made for a litany of awkward questions for the 2016 Republican candidates. Is it OK for a baker to refuse a cake for a same-sex wedding? Would you go to a same-sex wedding reception? Yup, that's what dominated headlines in the days after the RFRA law was signed, but the seemingly inane questions could mean trouble for nuptials.
The North Carolina House voted to override Republican Gov. Pat McCrory's veto of a bill that would allow some officials to refuse to perform marriage ceremonies on religious grounds in June (Jesus, what a busy month). So now, if a judge doesn't want to perform a ceremony that he or she feels violates their religious belief, then that's A-OK. Utah has a similar law that passed earlier this year.
This measure extends even further than vanity bills such as Texas' so-called Pastor Protection Act, which said that clergy members could not be sued if they refused to marry same-sex couples because of their religious beliefs.
Keep in mind, first, that when this bill was wending through the Texas House and Senate in May, same-sex marriage was not legal in the state. Also keep in mind that there is absolutely no reason for such laws; Members of the clergy are already protected from these kind of lawsuits. But that didn't stop Gov. Greg Abbott from signing it into law in — you guessed it — June.
If you were hoping that the firestorms in Indiana, Arkansas and Louisiana were fading, expect this ruling to fan the flames. Before the ruling, there was a last minute scramble to reinforce, as much as possible, the difficulties that will face same-sex couples if they decide to marry.
Unfortunately, there could be retroactive braces, too. If states take cues from Indiana, there is nothing about marriage equality that would stop them from discriminating against gay couples. The florist is a church-going homophobe? No flowers for you.
Northern Ireland courts have taken a stand against this kind of discrimination. When a bakery refused to make a LGBT group a (hilarious) gay Bert and Ernie cake, a judge in the Belfast high court ruled that Ashers bakery was guilty of discrimination. It was a landmark case in Northern Ireland.
It's only a matter of time before the United States starts seeing a surge of wedding-related disputes. Can a hotel refuse to let a gay man stay the night? No, absolutely not. Can a hotel refuse a gay man to book his wedding party there? RFRA laws make all of this extremely murky.
So, yes. The legalization of same-sex marriages should absolutely be celebrated. But don't be fooled into thinking that "marriage equality" actually means that LGBT Americans will be treated equally.
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