Leveraging Advancement Post-Obergefell

by Jeremiah Ho

Editor's Note: Professor Ho completes his three part series with this discussion of post Obergefell Advancement

As an anti-stereotyping principle, the concepts of animus and dignity interwoven by Kennedy in Obergefell serves to contain the narrative of discrimination and marginalization based on sexual orientation.  Harnessed together by Kennedy for his fourth gay rights opinion at the Supreme Court, the animus-dignity connection in Obergefell arrives at the marriage equality ruling; but more importantly by tying the significance of the marriage right to human dignity, Kennedy is able to make salient that the right to marriage should be legally available to same-sex couples because otherwise it hinders the upholding of  important constitutional ideals.  Specifically in Obergefell Kennedy’s continuous use and reliance on the animus-dignity connection reveals an emphasis on the autonomy of sexual minorities.  One of the reasons exposed by the indignities from state marriage bans that concerned Kennedy was the abridging of private choices that reflect the personal autonomy available for self-determinism.  Ensuring that the fundamental right to marry was available to same-sex couples helped correct that curtailment.  As Kennedy notes in Obergefell, “the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights.” 

Since Lawrence v. Texas, personal autonomy has been a common theme in gay rights cases.  In fact, in Obergefell v. Wymyslo, one of the lower federal district cases eventually consolidated into the appealat the Supreme Court, an emphasis on the personal autonomy in choices reflecting sexual identity was one reason why the Wymyslo court found sexual orientation appropriate for heightened scrutiny.  In its discussion of the immutability of sexual orientation, Wymyslo exhibited a preference for protecting personal autonomy when it adopted a standard for immutability that allowed it to find that sexual orientation was an immutable trait because it was “so fundamental to a person's identity that one ought not be forced to choose between one's sexual orientation and one's rights as an individual—even if such a choice could be made.”  In other words, one has the autonomy to make choices that reflect sexual identity.  Obergefell’s two passing mentions of the immutability of sexual orientation seem to concur. 

             Going forth, one of the ultimate leveraging advancements from post-Windsor cases to Obergefell should be the increased recognition between personal autonomy and sexual identity.  Autonomy after all resides significantly in modern theories of democratic rights because individualism and self-invention has figured into the concept of humanity.  Relating all of this back to sexual orientation antidiscrimination, autonomy helps leverage advances within equality because inequality here is still concerned with the distribution of rights—even if the right involves something as intangible as self-determinism but is externalized by personal choice.  In that sense, the recent advances for autonomy in sexual orientation discrimination ought to be expanded for sexual identity in the LGBTQ movement’s next increment of advancement.

            For instance, placing sexual orientation firmly within a protected trait in Title VII could be the next step that constructively leverages developments from the marriage cases to antidiscrimination.  Although Title VII does not expressly protect sexual orientation, there is already some slippage within what “because of sex” means in claims that allows claimants to assert claims that could factually involve sexual orientation discrimination but also qualify as gender-stereotyping. The complex interplay in the characteristics of sex and gender have gradually carved out a line of cases, including Supreme Court precedent in Price Waterhouse v. Hopkins that have adjudicated Title VII cases in situations where gender-stereotyping was at play under the Act’s definition of discrimination “because of sex.” Couching this idea in Judith Butler terms, the performative or expressive aspects of gender have broader—and perhaps fuzzier—borders than biological sex-determinancy or inferences. Although other gender-stereotyping cases have articulated that the gender-stereotyping theory could not be utilized to “bootstrap protection for sexual orientation into Title VII,” sexual minorities have been able to lodge discrimination claims in situations where they were marginalized harmfully when the expressive aspects of their personal identity based on their sexual orientation belied conventional expectations about their biological sex; such results have varied. 

            This notion of marginalization or discrimination of individual gender expression based on dominant expectations of sex—harnassing aspects of essentialism to bolster one idea of what it means “to be a man or a woman” in order to eclipse other ideas—places tolls on personal autonomy.  In this way, there might be some viable overlap existing between these Title VII gender-stereotyping cases and marriage equality cases that may be helpful to future advances in sexual orientation antidiscrimination post-Obergefell.