On June 26, 2015, the U.S. Supreme Court issued its long-awaited marriage-equality decision affirming the right of same-sex couples to marry, in Obergefell v. Hodges. As was widely predicted, the 5–4 decision was authored by Justice Kennedy, who had also authored the past few LGBT-rights Supreme Court decisions. The opinion contains Kennedy’s usual fusion of equality and liberty principles under the Fourteenth Amendment. The Obergefell opinion also, however, contains a doctrinal dimension not as widely predicted: the affirmation of marriage equality as rooted in part in the freedom of intimate association, a doctrine that the Court first explained was the basis of marriage protections in Jaycees v. Roberts in 1984, but which has never, until now, been the explicit foundation of the Court’s affirmation of intimate associational rights in a case.
In response to the decision, while there has been much celebration across the country, there have also been negative reactions from some, in the name of religion. Taking the lead in testing the rights of those who oppose same-sex marriage in the name of religion is Texas Attorney General Ken Paxton. Paxton released an opinion on Monday, June 29, questioning the Supreme Court’s ruling and advising that public officials in Texas may, in the name of religious freedom, object to the issuance of same-sex marriage licenses, along with judges and justices of the peace, who may not be compelled to perform same-sex weddings ceremonies over their religious objections. Paxton added, “It is important to note that any clerk who wishes to defend their religious objections and who chooses not to issue licenses may well face litigation and/or a fine. But, numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro-bono basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”
Religious objection battles over compliance with the Supreme Court decision are not likely to be confined to Texas, but will likely occur in other states as well, such as Alabama, where Alabama State Supreme Court Justice Roy Moore led the battle cry against past federal judicial orders recognizing marriage equality leading up to the Obergefell decision.
Keywords: civil rights litigation, marriage, RFRA, LGBTQ
— Nancy Marcus, LL.M., S.J.D., assistant professor of law, Indiana Tech Law School