Monday, July 13, 2015

The Obergefell Resistance

Despite the power of Justice Kennedy's opinion, resistance to the Obergefell case persists in some quarters. This post is part one on this topic. Part two will address considered responses to the resistance.

Two conservative advocacy groups have asked their state's highest court to protect them in "resisting" enforcement of Obergefell v. Hodges.  Citing constitutional grounds, the groups claim that the state (in this instance Alabama) can refuse to enforce marriage equality and indeed has the duty to defend state officials who refuse enforcement.  Using the language of civil resistance invoked by Dr. King, the groups simply refuse to acknowledge the legitimacy of a ruling with which they disagree.  Further analysis can be read on ScotusBlog.  

Last year, Utah Senator Orrin Hatch declared that "anyone who still thinks that marriage equality is still up for debate in all fifty states isn't living in reality."  Senator Mike Lee, also of Utah, disagrees.  Last week, NPR reported that Senator Lee filed what he named "The First Amendment Defense Act" bill that would protect individuals and institutions who continue to discriminate  against lesbians and gays based upon religious grounds.  As an example, Lee said that "... a university with religious affiliations and federal grants should be allowed to deny employment to somebody married to a person of the same sex."  He explained that "A religious institution, whether an educational institution or otherwise, just like an individual ought not have to choose between adhering to religious belief and, on the other hand, doing whatever it is that that person or that entity does, there ought not be a penalty attached to a religious belief."

Neither the Alabama petition nor Senator Lee's bill are likely to succeed.  In Lee's case, the political fallout for representatives voting in favor of the bill would be severe in the upcoming elections.  As for Alabama, the federal judiciary has shown no inclination to defy the US Supreme decision.  In a time when vestiges of the Confederacy are falling, decisions that renew state discriminatory supremacy arguments would be ill-thought out and ill-timed. 

Then there are the "wedding cake" resisters.  In Colorado a same sex couple has sued a baker who refused to accept their order for their wedding cake.  The religious freedom arguments made by Senator Lee reflect, in part, the arguments of the wedding cake defense.  Other states have found in favor of same sex plaintiffs in the wedding services law suits based upon state laws. 

Tomorrow's post will consider strategic and community considerations in bringing law suits against wedding service providers. 

 

 

 

 

https://lawprofessors.typepad.com/human_rights/2015/07/the-obergefell-resistance-.html

Equality, Gender, Margaret Drew | Permalink

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