Wednesday, November 18, 2015
by Jeremiah Ho
Last week’s developments in Utah directed against same-sex relationships are reminders that the movement toward equality based on sexual identity continues after the marriage victory this past summer at the Supreme Court. First, the Mormon Church promulgated new policies that declare same-sex couples apostates and limited their children from baptism and other church rites. Such policies have engendered much harsh rebuke—even from within the Mormon community—and led this past Sunday to a mass resignation of 1,000 church members.
The second event in Utah involved April Hoagland and Beckie Peirce, a married lesbian couple, who was ordered by a juvenile court judge to have their 1-year old baby foster daughter be removed from their home and sent to a “traditional” home. The judge’s rationale for his decision was based on unsupported assumptions that children fare better in homes with opposite-sex parents rather than same-sex parents. However, by the end of the week, the judge reversed his order and the couple was allowed to keep their foster daughter.
Now that same-sex couples have the right to marry and the legal benefits that come with marriage, it has become easier to see how the struggle for equality heavily involves the violation of human dignity. In both Utah situations, same-sex relationships have been singled out for the kind of denigration described by Justice Kennedy in Obergefell v. Hodges: the kind that results in a strong stigmatizing effect for sexual minorities. It would not be hard to see that the Mormon Church policies convey a lesser worth in the relationships of same-sex couples if their children were punished because of their parents’ sexual orientation. Likewise, in disallowing the Hoagland and Peirce petition to keep their foster daughter, Judge Scott Johansen singled out the couple in a way that denigrated and placed a negative value on their relationship
Both situations demonstrate Kennedy’s animus-dignity premise in the Windsor and Obergefell opinions: that the narrative of marriage discrimination for sexual minorities has been one that correlates animus with indignity. Both attack same-sex relationships from a place of disdain for sexual minorities (animus) and singled out same-sex relationships with the effect of tarnishing them (violations of dignity). In this way, these two recent cases in Utah demonstrate how Kennedy was very much on point in the description of sexual orientation discrimination.
But with these two repeated incidents of the animus-dignity pattern of discrimination occurring in the aftermath of Obergefell, one might ask, why bother? In the Mormon Church scenario, the purpose itself for the new policies was to make a second-class citizenry out of the families created and maintained by same-sex couples. While in Haigland and Peirce’s situation, the order to remove their foster child denigrated their relationship. Don’t the actors in these situations understand how this all works?
In some ways, I would argue that we need situations like this in Utah to continue to create progress for sexual orientation nondiscrimination. From an incrementalist perspective, these prejudicial and discriminatory moments—like the denial of services to gay couples by small business owners, like the Kim Davis, county clerk controversy in Kentucky—are necessary to keep the conversation for nondiscrimination alive. This is not just because such incidents of prejudice and discrimination stoke the conversation regarding sexual identity inequality, but because as far as the conversation is concerned, we have reached a tipping point socially and politically. The new church policies have been singled out by constituents in the Mormon Church as completely intolerable—even by its own members. And after controversial media coverage that condemned the Utah judge’s decision, he back tracked on his decision to remove the foster child from Hoagland and Peirce’s care. At some point, hopefully these instances that marginalize same-sex couples and sexual minorities will be fewer and fewer—particularly when we reach the next tipping point in the conversation. But for now, each time such an instance occurs, the conversation around these moments and about discrimination generally should be framed in a way so that the narrative of animus and indignity is exposed.