tag:theconversation.com,2011:/au/topics/obergefell-v-hodges-18265/articlesObergefell v Hodges – The Conversation2022-12-07T13:43:51Ztag:theconversation.com,2011:article/1957092022-12-07T13:43:51Z2022-12-07T13:43:51ZBiden signs marriage equality bill into law – but the Respect for Marriage Act has a few key limitations<figure><img src="https://images.theconversation.com/files/499327/original/file-20221206-20-tgqn8n.jpg?ixlib=rb-1.1.0&rect=312%2C57%2C3924%2C2765&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Respect for Marriage Act will reverse the 1996 law that defines marriage as one between heterosexual couples.</span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/id/172126937/photo/us-california-same-sex-marriage.jpg?s=1024x1024&w=gi&k=20&c=VTSXlnnOvDEW7u24S8JrdFmzJSM6IzW6Gbi_-fRLbL8=">Robyn Beck/AFP via Getty Images</a></span></figcaption></figure><p>President Joe Biden <a href="https://www.npr.org/2022/12/13/1142331501/biden-to-sign-respect-for-marriage-act-reflecting-his-and-the-countrys-evolution">signed the</a> <a href="https://www.congress.gov/bill/117th-congress/house-bill/8404/text">Respect for Marriage Act</a> on Dec. 13, 2022, protecting the federal right to same-gender marriage, which is often referred to as same-sex marriage.</p>
<p>The U.S. House of Representatives first <a href="https://www.nytimes.com/2022/12/08/us/politics/same-sex-marriage-congress.html">approved the</a> the <a href="https://www.congress.gov/bill/117th-congress/house-bill/8404/text">Respect for Marriage Act</a> – a law that codifies both interracial and same-gender marriage – on Dec. 8, 2022. This followed the <a href="https://www.cbsnews.com/news/respect-for-marriage-act-senate-vote-marriage-equality-bill/">Senate passing</a> the Respect for Marriage Act on Nov. 29, 2022. </p>
<p>Many leaders of major LGBTQ+ rights organizations have praised the Respect for Marriage Act. For example, Kelley Robinson, president of the LGBTQ+ advocacy group the Human Rights Campaign, <a href="https://www.hrc.org/press-releases/a-landmark-step-toward-equality-human-rights-campaign-celebrates-senate-passage-of-bipartisan-respect-for-marriage-act">said in November 2022</a> that the act will allow “the 568,000 same-sex married couples in this country … (to) breathe a sigh of relief that their marriages will be protected from future attacks.”</p>
<p>However, the Respect for Marriage Act also has various limitations that have not received a lot of public attention. As a <a href="https://wgss.osu.edu/people/debussy.1">public policy scholar</a> with a focus on LGBTQ+ issues, I’ve noticed at least three major shortcomings related to this imminent law. And as such, I don’t necessarily expect it to lead to legal protection and equality for all. </p>
<p>One key issue is that anti-LGBTQ+ laws in conservative states could undercut the Respect for Marriage Act. The act also provides an exemption for religious nonprofits. And finally, it does not fix a long-lasting problem that penalizes the marriages of people with disabilities – regardless of their sexuality. </p>
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<a href="https://images.theconversation.com/files/499075/original/file-20221205-12-yb6d53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A white man in a suit is seen hugging a lady with dark hair. Next to him a blond woman with red glasses moves to hug another woman with blonde hair, as seen from the back." src="https://images.theconversation.com/files/499075/original/file-20221205-12-yb6d53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499075/original/file-20221205-12-yb6d53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499075/original/file-20221205-12-yb6d53.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499075/original/file-20221205-12-yb6d53.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499075/original/file-20221205-12-yb6d53.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499075/original/file-20221205-12-yb6d53.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499075/original/file-20221205-12-yb6d53.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Several lawmakers celebrate after the Senate voted to approve the Respect for Marriage Act on Nov. 29, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1245218619/photo/senate-passes-respect-for-marriage-act.jpg?s=1024x1024&w=gi&k=20&c=vy_UtS3LVbG_yTV3KN4UvXIA3dOxGxuwXwOLzBv3Fpc=">Kent Nishimura/Los Angeles Times via Getty Images</a></span>
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</figure>
<h2>First, a bit of background</h2>
<p>The Respect for Marriage Act will repeal the <a href="https://www.law.cornell.edu/wex/defense_of_marriage_act_(doma)">Defense of Marriage Act</a>, which President Bill Clinton signed into law in 1996. The Defense of Marriage Act set the federal definition of marriage as “one man, one woman” and allowed states to refuse to honor same-gender marriage licenses issued by other states.</p>
<p>In 2013, the Supreme Court ruled that part of this law was unconstitutional in the case, <a href="https://www.oyez.org/cases/2012/12-307">U.S. v. Windsor</a>. In 2015, the court also issued another ruling, <a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>, which required all states to license and recognize same-gender marriages.</p>
<p>But <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/29/statement-from-president-joe-biden-on-bipartisan-senate-passage-of-the-respect-for-marriage-act/">concern about</a> the court’s precedent on same-gender marriage was ignited after the Supreme Court made its June 2022 ruling in <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/29/statement-from-president-joe-biden-on-bipartisan-senate-passage-of-the-respect-for-marriage-act/">Dobbs v. Jackson Women’s Health Organization,</a> which overturned the federal right to an abortion. </p>
<p>Supreme Court Justice Clarence Thomas issued a <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">concurrent opinion</a> alongside the Dobbs v. Jackson ruling. In it, <a href="https://www.axios.com/2022/06/24/clarence-thomas-same-sex-marriage-contraception">he wrote that</a> since abortion rights are not protected under the 14th Amendment – which provides people with <a href="https://www.senate.gov/about/origins-foundations/senate-and-constitution/14th-amendment.htm">“equal protection under the laws”</a> – the court should also review several past cases, such as ones that affirmed the rights to contraception and same-gender marriages. </p>
<p>Because of this, Democratic and Republican legislators fast-tracked the Respect for Marriage Act through Congress in the fall of 2022.</p>
<h2>It doesn’t stop states from passing discriminatory laws</h2>
<p>While the Defense of Marriage Act is not currently enforced, it remains on the books. The Respect for Marriage Act fully repeals the Defense of Marriage Act – but it <a href="https://www.axios.com/2022/11/30/respect-for-marriage-act-does-and-doesnt-do">won’t stop states</a> from passing their own new discriminatory marriage restrictions or enforcing preexisting measures.</p>
<p>Among other things, the Respect for Marriage Act <a href="https://constitution.congress.gov/browse/essay/artIV-S1-1/ALDE_00013015/">requires all </a> states to <a href="https://www.hrc.org/press-releases/respect-for-marriage-act-what-it-does-how-it-interacts-with-the-obergefell-ruling-and-why-theyre-both-essential-to-protecting-marriage-equality">recognize marriage licenses</a> from other states. </p>
<p>Some legal experts have noted that the conservative-leaning Supreme Court could overturn <a href="https://www.them.us/story/obergefell-legal-experts-lgbtq-marriage-protection">its previous rulings on marriage equality.</a> In that case, states could try to deny marriage licenses to interracial and same-gender couples by passing new state laws. </p>
<p>If that happens, these states would have to recognize same-gender marriage licenses from other states where it remains legal. But states could still pass and enforce a racist or anti-LGBTQ+ measure that restricts access to marriage licenses there.</p>
<p>In that instance, the only way some couples could have their marriage recognized at home would be by traveling to another LGBTQ+ friendly state to get a marriage license – similar to how some people now <a href="https://www.npr.org/2022/07/21/1112609958/even-before-the-dobbs-ruling-more-americans-were-traveling-for-abortions">travel out of state</a> to get an abortion. This scenario would almost immediately result in a flurry of lawsuits at the state level.</p>
<h2>It gives exemptions to religious nonprofits</h2>
<p>When the <a href="https://www.cbsnews.com/news/respect-for-marriage-act-senate-vote-marriage-equality-bill/">Senate passed</a> the Respect for Marriage Act, the bill had a <a href="https://www.usatoday.com/story/news/politics/2022/11/28/gay-marriage-same-sex-religious-liberty-senate/10790692002/">new religious liberty amendment</a> added to it. While this concession was a <a href="https://www.newsweek.com/these-12-republican-senators-voted-advance-respect-marriage-act-1762912">draw for some Republican legislators</a>, it creates some notable exemptions. </p>
<p>This language codifies the rights of religious nonprofits – including faith-based institutions, mission organizations, religious educational institutions and others – to not celebrate or, in some instances, recognize a marriage that conflicts with their faith. </p>
<p>In doing so, such organizations are <a href="https://www.indystar.com/story/opinion/2022/11/30/todd-young-same-sex-marriage-law-indiana-lgbtq-rights-2022/69682795007/">allowed to deny</a> “services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.”</p>
<p>In short, religious institutions could still refuse to host or officiate wedding ceremonies or to provide services, on the basis of religious liberty. </p>
<p>This exemption follows the Supreme Court’s 2021 ruling in <a href="https://www.oyez.org/cases/2020/19-123">Fulton v. City of Philadelphia</a>. In that case, the court <a href="https://theconversation.com/supreme-court-unanimously-upholds-religious-liberty-over-lgbtq-rights-and-nods-to-a-bigger-win-for-conservatives-ahead-161398">unanimously decided</a> that a Christian adoption agency in the city could refuse to work with a same-gender couple.</p>
<p>Currently, the impact that this clause of the Respect for Marriage Act could have on LGBTQ+ rights remains to be seen. Even so, this builds upon a longer history of religious liberty arguments that have been used to deny rights to <a href="https://www.aclu.org/news/lgbtq-rights/masterpiece-bakery-wins-battle-loses-war">same-gender couples</a>, <a href="https://www.nytimes.com/2019/05/02/upshot/conscience-rule-trump-religious-exemption-health-care.html">transgender people</a>, <a href="https://www.nytimes.com/2014/07/01/us/hobby-lobby-case-supreme-court-contraception.html">women</a> and others.</p>
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<a href="https://images.theconversation.com/files/499299/original/file-20221206-18-ven0c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Three women stand next to each other in a city street, holding signs that say 'Don't dis my ability,' and 'the only disability in life is a bad attitude'" src="https://images.theconversation.com/files/499299/original/file-20221206-18-ven0c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/499299/original/file-20221206-18-ven0c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/499299/original/file-20221206-18-ven0c5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/499299/original/file-20221206-18-ven0c5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/499299/original/file-20221206-18-ven0c5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/499299/original/file-20221206-18-ven0c5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/499299/original/file-20221206-18-ven0c5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">People celebrate the fifth annual Disability Pride March in New York in 2019.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/id/1229016168/photo/new-york-celebrated-the-fifth-annual-disability-pride-with-a.jpg?s=1024x1024&w=gi&k=20&c=M6hH6x0cDWSUvA2kbd1Nl-OkR6ijIBTzmVXUycpmQm4=">Erik McGregor/LightRocket via Getty Images</a></span>
</figcaption>
</figure>
<h2>It doesn’t ensure marriage equality for people with disabilities</h2>
<p>Finally, the Respect for Marriage Act does not explicitly protect people with disabilities, who still <a href="https://www.npr.org/2022/02/13/1080464176/disabled-americans-cant-marry-able-bodied-partners-without-losing-federal-benefi">do not have access</a> to marriage equality. </p>
<p>There are <a href="https://www.specialneedsalliance.org/the-voice/what-happens-when-persons-living-with-disabilities-marry-2/">several legal obstacles</a> that people with disabilities – whether identifying as LGBTQ+ or not – face when it comes to marriage. There is a so-called <a href="https://dredf.org/2022/03/28/disabled-adult-child-dac-marriage-penalty/">“marriage penalty,”</a> which can cause people with disabilities to lose benefits after marrying a nondisabled person.</p>
<p>While the Americans with Disabilities Act provides access to public accommodations, it <a href="https://equitashealth.com/blog/16863/">does not prohibit</a> this marriage penalty. This means that people with disabilities generally lose their Social Security, Medicare and Medicaid benefits if they marry a nondisabled person.</p>
<p>While the Respect for Marriage Act repeals the Defense of Marriage Act, it will not repeal these marriage penalties from federal law. </p>
<p>Advocates are calling for proposed legislation, such as the <a href="https://www.congress.gov/bill/117th-congress/house-bill/6405/text">Marriage Equality for Disabled Adults Act.</a> This <a href="https://www.forbes.com/sites/andrewpulrang/2020/08/31/a-simple-fix-for-one-of-disabled-peoples-most-persistent-pointless-injustices/?sh=76b5b45e6b71">would remove</a> this marriage penalty from federal law. Although disability rights activists continue to push for legislation to <a href="https://www.forbes.com/sites/andrewpulrang/2022/03/31/whats-next-in-marriage-equality-for-people-with-disabilities/?sh=30e7b0d56eb7">undo this penalty</a>, the bill has been sitting with the House of Representatives subcommittee on health <a href="https://www.congress.gov/bill/117th-congress/house-bill/6405/committees?q=%7B%22search%22%3A%5B%22Marriage+Equality+for+Disabled+Adults+Act%22%2C%22Marriage%22%2C%22Equality%22%2C%22for%22%2C%22Disabled%22%2C%22Adults%22%2C%22Act%22%5D%7D&r=1&s=1">since January 2022</a>.</p>
<p>The Respect for Marriage Act is an important win for interracial and same-gender couples, as it will codify the right to marriage into federal law. However, it is important to remember what this bill does not do. </p>
<p>The limitations of the Respect for Marriage Act – including no restrictions on discriminatory state laws, the presence of religious exemptions and the unacknowledged needs of people with disabilities – remain important to consider.</p><img src="https://counter.theconversation.com/content/195709/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dorian Rhea Debussy does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Respect for Marriage Act provides exemptions for religious groups, excludes people with disabilities – and could still lead to state-level discrimination laws.Dorian Rhea Debussy, Lecturer of Women's, Gender, and Sexuality Studies, The Ohio State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1605142021-06-15T12:23:36Z2021-06-15T12:23:36ZFriends are saying ‘I do’ – but might not understand the legal risks of their platonic marriages<figure><img src="https://images.theconversation.com/files/406152/original/file-20210614-77865-zda7im.jpg?ixlib=rb-1.1.0&rect=263%2C6%2C3914%2C2661&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Since there’s no romantic relationship, judges are likely to default to ruling that platonic marriages are an attempt to game the system.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/wedding-cake-with-statuettes-of-two-women-is-seen-during-news-photo/81102220?adppopup=true">Gabriel Bouys/AFP via Getty Images</a></span></figcaption></figure><p>When a couple decides to tie the knot, they’ll often say they’re marrying their best friend. </p>
<p>But what if two actual best friends – no sex or even romantic feelings involved – just decided to get married? </p>
<p>Friends, <a href="https://www.nytimes.com/2021/05/01/fashion/weddings/from-best-friends-to-platonic-spouses.html">The New York Times reported</a> in 2021, are starting to “marry in a platonic fashion, swearing never to leave each other for better or for worse.” </p>
<p>These “nonconjugal couples” – mutually supportive relationships of friends or relatives that lack a sexual component – are powerfully challenging dominant social and legal norms around what constitutes family.</p>
<p>I’ve recently written about how these <a href="https://www.bloomsburyprofessional.com/uk/legal-recognition-of-non-conjugal-families-9781509939954/">nontraditional couples could one day gain legal recognition</a> – and thus tax breaks and couple benefits – in the courtrooms of the U.S., Canada and Europe. </p>
<p>But legal recognition, as of today, doesn’t exist. So there are risks in saying “I do” to a friend. </p>
<h2>The legal pitfalls of platonic marriages</h2>
<p>Two friends can get married for a host of reasons. </p>
<p>They might not believe in the traditional heterosexual family and wish to challenge it. They might simply think that their best friend is the person they want to share chores, meals and finances with. Or they might also believe that, as law-abiding taxpayers, they should also be able to receive the <a href="https://www.nolo.com/legal-encyclopedia/marriage-rights-benefits-30190.html">family benefits</a> that other married couples receive, like filing their tax returns jointly.</p>
<p>At the moment, though, friendship is not recognized by law. And only a handful of states allow friends to gain legal recognition through registration as domestic partners. These include <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1216&context=mjgl">Maine, Maryland</a> and <a href="https://www.denvergov.org/content/dam/denvergov/Portals/777/documents/MarriageCivilUnions/Designated%20Beneficiary%20Agreement.pdf">Colorado</a>.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Statuettes of two men in tuxedos adorn the top of a wedding cake." src="https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=902&fit=crop&dpr=1 600w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=902&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=902&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1134&fit=crop&dpr=1 754w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1134&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1134&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">It’s pretty easy for two friends to get married – they just can’t admit that they’re only friends.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-same-sex-statues-adorn-the-top-news-photo/56334631?adppopup=true">Christopher Furlong/Getty Images</a></span>
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<p>However, <a href="https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">any two consenting adults</a> – regardless of their genders – can get married in the U.S. Two friends, therefore, can pretty easily pull it off. But they can’t admit that they’re only friends. </p>
<p>Legally speaking, it could be seen as a sham marriage.</p>
<p>For this reason, two friends who tie the knot and receive a marriage certificate can still face considerable risks. They expose themselves to criminal sanctions and civil penalties on grounds of “marriage fraud” if a federal or state agency becomes suspicious of the union. And they may also be denied benefits usually granted to married couples. </p>
<p>Kerry Abrams, the current dean of Duke University School of Law, <a href="https://scholarship.law.duke.edu/faculty_scholarship/3818/">has outlined different doctrines</a> developed in welfare law, social security law and immigration law over the course of the 20th century to specifically detect fake or sham marriages. Whether it’s two people tying the knot so one can gain citizenship, seeking to obtain <a href="https://cite.case.law/mj/74/525/">a housing allowance</a> or getting married ahead of a trial <a href="https://www.law.cornell.edu/supremecourt/text/344/604">so they can’t be forced to testify against one another</a>, the conclusions of the courts are the same: Their marriage is a sham, and the individuals expose themselves to criminal or civil liability and a termination of benefits.</p>
<p>Detecting a sham marriage isn’t easy. And courts acknowledge that there are many reasons that may motivate a person’s decision to marry that aren’t “romantic,” such as a desire to file income jointly to gain tax exemptions.</p>
<p>Therefore, courts look at whether there is what they call a “specific illicit purpose.” As <a href="https://cite.case.law/mj/74/525/">a judge wrote in his ruling</a> in a case about a couple that fraudulently got married to gain a housing allowance: </p>
<blockquote>
<p>“It is not the absence of a perfect or ideal ‘love, honor, and cherish’ motivation of the parties that renders the consequences flowing from the appellant’s actions in the case before us criminal; rather, it is the affirmative presence of a singularly focused illicit one – an intent to fraudulently acquire a government payment stream – that does so.”</p>
</blockquote>
<p>Two married friends will need to demonstrate before courts that they did not have a “singularly focused illicit” purpose of acquiring some sort of government benefit. But they’ll have a hard time doing so. That’s because when courts seek to understand whether the couple intended to live together as husband and wife, they’ll be assuming the family norm in which the couple has a sexual relationship. </p>
<p>Since there is no romantic relationship, judges will likely default to arguing that the friends got married only to game the system.</p>
<h2>Can the Constitution help?</h2>
<p>At the constitutional level, there is this one decision that might lend some hope to nonconjugal couples: <a href="https://supreme.justia.com/cases/federal/us/413/528/">Department of Agriculture v. Moreno</a>, also known as “the hippies case.”</p>
<p>The Moreno case concerned a group of impoverished, unrelated people living under the same roof who, at some point, were denied food stamps by the government. The government argued that its goal was fraud prevention: In its view, households with unrelated people – such as friends – are more likely to commit fraud to illegally obtain government benefits.</p>
<p>The Supreme Court, however, <a href="https://www.oyez.org/cases/1972/72-534">ruled in favor of the household</a> in 1972. It concluded that minimizing fraud is a valid interest, but that the government could do so through other, more specific measures, instead of just denying benefits to a whole group of people. </p>
<p>However there are two problems with using this decision as a precedent for opening the door to allow two friends to marry. First, the outcome was largely driven by what the Supreme Court deemed the “cynical” motives of the legislature, which, in amending the law, had singled out “hippies” as undeserving of food stamps. Second, it isn’t about marriage, per se; it’s about who can gain access to one specific legal benefit: food stamps.</p>
<p>So I would argue that the constitutional decision that says something about the fate of platonic marriages is not Moreno, but <a href="https://guides.ll.georgetown.edu/c.php?g=592919&p=4182205">Obergefell v. Hodges</a>, the Supreme Court judgment on same-sex marriage.</p>
<p>The idea of marriage Obergefell puts forth is one founded on rather traditional family norms. The plaintiffs in the Obergefell case – a gay couple – were, in every way aside from their same gender, congruent with what most Americans understand a married couple to be. Their relationship was sexual, exclusive, romantic, nuclear and involved two people. They were also committed to each other for life. </p>
<p>To show that same-sex marriage is a subset of the broader fundamental right to marry, <a href="https://www.oyez.org/cases/2014/14-556">LGBTQ litigators chose to reinforce preexisting norms</a> of marriage and family. They marshaled evidence showing that a gay or lesbian couple had the same ability to love, be intimate and raise children. Friends do not necessarily adhere to these norms: They are not intimate, and they are not necessarily interested in raising children, though <a href="https://www.cbc.ca/news/canada/ottawa/multimedia/raising-elaan-profoundly-disabled-boy-s-co-mommas-make-legal-history-1.3988464">some of them are</a>. </p>
<p>Ironically, it seems that LGBTQ activism has made it much harder for other nontraditional families to gain access to marriage. <a href="https://theconversation.com/polyamorous-relationships-under-severe-strain-during-the-pandemic-154335">Polyamorous and polygamous relationships</a> are among them. </p>
<p>And, yes, friends, too.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/160514/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nausica Palazzo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Because any two consenting adults can get married in the US, a platonic marriage could pretty easily be pulled off. Legally speaking, though, it’s a sham.Nausica Palazzo, Postdoctoral Fellow in Comparative Law, Hebrew University of JerusalemLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1490662020-11-04T12:39:21Z2020-11-04T12:39:21Z‘Rainbow wave’ of LGBTQ candidates run and win in 2020 election<figure><img src="https://images.theconversation.com/files/367418/original/file-20201104-15-1uiye72.jpg?ixlib=rb-1.1.0&rect=0%2C7%2C4752%2C3142&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">LGBTQ candidates made strides on Tuesday.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/close-up-of-rainbow-flag-with-crowd-in-background-royalty-free-image/1135535265?adppopup=true">Marc Bruxelle / EyeEm</a></span></figcaption></figure><p>More LGBTQ candidates ran for office in the United States in 2020 than ever before – <a href="https://victoryfund.org/news/2020-lgbtq-candidate-diversity-report-released-at-least-1006-lgbtq-people-running-in-2020/">at least 1,006</a>. That’s a 41% increase over the 2018 midterms, according to the LGBTQ Victory Fund.</p>
<p>While an estimated 5% of the U.S. population identifies as lesbian, gay, bisexual, transgender or queer, <a href="https://www.nbcnews.com/feature/nbc-out/lgbtq-political-representation-jumped-21-percent-past-year-data-shows-n1234045">just 0.17% of elected officials</a> across all levels of the American government are LGBTQ. </p>
<p>Better political representation could help LGBTQ Americans maintain some of their hard-won rights, which have come under attack over the past four years. Since 2016, the Trump administration has weakened <a href="https://www.nytimes.com/2017/02/22/us/politics/devos-sessions-transgender-students-rights.html">trans-inclusive protections in schools</a>, attempted to remove <a href="https://www.npr.org/sections/health-shots/2020/06/12/868073068/transgender-health-protections-reversed-by-trump-administration">LGBTQ protections in health care</a> and proposed allowing <a href="https://www.nytimes.com/2020/07/01/us/politics/hud-transgender.html">homeless shelters to turn away transgender people</a>.</p>
<p>Marriage equality, too, may be under threat. In early October, Supreme Court Justices Clarence Thomas and Samuel Alito suggested that the 2015 decision in Obergefell v. Hodges, which made same-sex marriage legal across the United States, <a href="https://www.usatoday.com/story/news/politics/elections/2020/10/14/amy-coney-barretts-confirmation-may-mean-end-lgbtq-marriage/5952960002/">should be overturned</a>.</p>
<p>In short, candidates and LGBTQ rights were both on the ballot in the 2020 election, either explicitly or implicitly. While many questions remain undecided at press time, here’s the takeaway from four down-ballot races I’ve been following as a <a href="https://theconversation.com/how-the-prosper-act-could-negatively-impact-lgbtq-students-100135">scholar of LGBTQ politics</a>.</p>
<h2>Delaware</h2>
<p>Democrat <a href="https://victoryfund.org/candidate/sarah-mcbride/">Sarah McBride</a> made history on Tuesday when she <a href="https://www.advocate.com/politics/2020/11/03/sarah-mcbride-makes-history-nations-1st-openly-trans-state-sen?utm_source=facebook&utm_medium=social&utm_campaign=politics&fbclid=IwAR0AEWihkmnyi8Eq_oHg9FjVTUdqM0bgenfI7bx6wZjP44VKx7amNXlHy8w">won a state Senate seat</a> in Delaware. In doing so, she’ll become the United States’ <a href="https://www.nytimes.com/2020/09/15/us/politics/sarah-mcbride-delaware-transgender.html">highest-ranking transgender elected official</a> and the <a href="https://www.nytimes.com/2020/09/15/us/politics/sarah-mcbride-delaware-transgender.html">first openly transgender person to serve in a state Senate</a> anywhere in the nation. McBride <a href="https://www.politico.com/news/2020/11/03/sarah-mcbride-first-transgender-state-senator-delaware-433990">defeated Republican Steve Washington</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1323835825315028992"}"></div></p>
<p>Previously, <a href="https://victoryinstitute.org/team/roem-danica/">Danica Roem</a>, a Virginia Democrat who won a seat in the Virginia House of Delegates in 2017, was the <a href="https://www.usnews.com/news/politics/articles/2017-11-07/danica-roem-becomes-first-transgender-woman-to-win-state-seat-in-virginia">highest-ranking transgender person in elected office</a>. Roem <a href="https://thehill.com/homenews/campaign/469163-danica-roem-wins-reelection-in-Virginia-state-legislature">was re-elected</a> in 2019.</p>
<p>Other transgender women, including <a href="https://www.lgbtqnation.com/2020/11/taylor-small-will-vermonts-first-transgender-legislator/">Taylor Smalls of Vermont</a> and <a href="https://www.kansas.com/news/politics-government/election/article246927272.html">Stephanie Byers of Kansas</a>, also won state-level races on Tuesday in notable victories. </p>
<h2>Hawaii and South Dakota</h2>
<p>At the start of this election cycle, only three U.S. states – Hawaii, South Dakota and Mississippi – had <a href="https://victoryfund.org/news/victory-fund-endorses-eight-more-lgbtq-candidates-for-2019-can-elect-lgbtq-city-councilmembers-across-the-country-2/">no openly LGBTQ elected officials</a> at any level of government. This year, candidates in Hawaii and South Dakota hoped to get their states off that list.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/367320/original/file-20201103-21-f62i89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Headshot of Tam wearing a red lei" src="https://images.theconversation.com/files/367320/original/file-20201103-21-f62i89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/367320/original/file-20201103-21-f62i89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/367320/original/file-20201103-21-f62i89.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/367320/original/file-20201103-21-f62i89.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/367320/original/file-20201103-21-f62i89.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/367320/original/file-20201103-21-f62i89.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/367320/original/file-20201103-21-f62i89.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Rep.-elect Tam of Hawai’s 22nd district.</span>
<span class="attribution"><a class="source" href="https://lgbtqnation-assets.imgix.net/2020/08/IMG_1648-scaled.jpg?w=790&h=530&fit=crop&auto=format&auto=compress&crop=faces">Facebook</a></span>
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<p>Democrat <a href="https://victoryfund.org/candidate/nieuwenhuis-jared/">Jared Nieuwenhuis</a> of South Dakota was <a href="https://www.usatoday.com/elections/results/race/2020-11-03-state-house-SD-42136/">unable to win a seat</a> for state House District 25 to become the state’s <a href="https://victoryfund.org/news/eight-lgbtq-election-night-stories-to-watch-live-tracking-results-for-310-victory-fund-endorsed-candidates/">first openly LGBTQ elected official in the state Legislature</a>. </p>
<p>However, in Hawaii, <a href="https://victoryfund.org/candidate/adrian-tam/">Adrian Tam</a> – who <a href="https://www.hawaiinewsnow.com/2020/08/09/with-huge-voter-turnout-primary-election-some-surprises-emerge/">upset a 14-year incumbent</a> in the August Democratic primary for the state House of Representatives – <a href="https://www.nytimes.com/interactive/2020/11/03/us/elections/results-hawaii.html">defeated Republican Nicholas Ochs</a>, making him Hawaii’s <a href="https://www.lgbtqnation.com/2020/08/adrian-tam-way-becoming-lgbtq-elected-official-hawaii/">only openly LGBTQ elected official</a>.</p>
<h2>Georgia</h2>
<p>One Georgia Senate race <a href="https://www.nytimes.com/interactive/2020/11/03/us/elections/results-georgia.html">remained undecided on election night</a>. The other – an unusual race called a “<a href="https://fivethirtyeight.com/features/georgia-will-now-have-two-senate-elections-in-2020/">jungle primary</a>” between Republican Sen. Kelly Loeffler and <a href="https://www.13wmaz.com/article/news/politics/elections/who-are-the-candidates-in-the-georgia-special-us-senate-election/93-116bf2c3-5283-4621-9327-cd92cf67f704">20 other candidates from various parties</a> – has drawn national attention from LGBTQ advocates.</p>
<p>A political newcomer, Loeffler was <a href="https://www.nytimes.com/2019/12/04/us/politics/kelly-loeffler-georgia-senate.html">appointed to her seat</a> by Gov. Brian Kemp in late 2019 following the retirement of longtime Republican Sen. Johnny Isakson. Neither Loeffler nor her top opponent in the jungle primary, Democratic contender the Rev. Raphael Warnock, received over 50% of the vote, so <a href="https://www.cnn.com/election/2020/results/state/georgia/senate-special-election">a runoff election will be held in the coming weeks</a>. </p>
<p>This runoff will be significant for the LGBTQ community because of Loeffler’s recent sponsorship of <a href="https://www.nbcnews.com/feature/nbc-out/gop-senators-seek-ban-transgender-girls-female-sports-n1240992">a Senate bill to ban transgender girls</a> from playing school sports. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/367094/original/file-20201102-23-waa0hr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Loeffler speaks in front of a tree, wearing a beige pantsuit" src="https://images.theconversation.com/files/367094/original/file-20201102-23-waa0hr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/367094/original/file-20201102-23-waa0hr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/367094/original/file-20201102-23-waa0hr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/367094/original/file-20201102-23-waa0hr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/367094/original/file-20201102-23-waa0hr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/367094/original/file-20201102-23-waa0hr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/367094/original/file-20201102-23-waa0hr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Republican Sen. Kelly Loeffler of Georgia will have to defend her seat again in a runoff election.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sen-kelly-loeffler-at-a-brief-press-conference-after-voting-news-photo/1229046653?adppopup=true">Lynsey Weatherspoon/Getty Images</a></span>
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</figure>
<p>Loeffler’s proposed legislation is similar to Idaho’s new “<a href="https://www.ktvb.com/article/news/local/capitol-watch/idaho-governor-little-signs-into-law-anti-transgender-legislation/277-8541e9d3-2cbb-4780-8f4b-5a9b59232594">Fairness in Women’s Sports Act</a>” – a law that could require girls who excel in athletics to “prove their gender” through a <a href="https://www.youtube.com/watch?v=HPxV72MPOC8">genital exam, DNA test or testosterone test</a>. LGBTQ rights groups fear Loeffler’s bill would allow schools across the country to <a href="https://www.lgbtqnation.com/2020/09/gop-senator-introduces-bill-require-genital-exams-girls-competing-school-sports/">conduct genital examinations of student athletes</a> who are presumed to be transgender. </p>
<p>Warnock, a pastor at Georgia’s historic Ebenezer Baptist Church, has made a <a href="https://www.advocate.com/commentary/2020/10/27/senate-candidate-rev-warnock-religious-freedom-and-lgbtq-rights">strong public commitment</a> to LGBTQ rights and <a href="https://www.projectq.us/raphael-warnock-equality-act-needed-now-more-than-ever/">condemned Loeffler’s legislation,</a> saying in an interview with the LGBTQ outlet Project Q that “no one is free until we are all free.” </p>
<p>In the same interview, Warnock expressed his support for the <a href="https://www.hrc.org/resources/the-equality-act">Equality Act</a>, proposed legislation that would add LGBTQ nondiscrimination protections into federal law.</p>
<p>[<em><a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=experts">Expertise in your inbox. Sign up for The Conversation’s newsletter and get expert takes on today’s news, every day.</a></em>]</p>
<h2>Historic victories and challenges ahead</h2>
<p>LGBTQ Americans <a href="https://www.washingtonblade.com/2016/11/14/lgbt-voters-rejected-trump-lopsided-margin/">vote heavily Democratic</a>. In 2008, John McCain won 27% of the LGBTQ vote while running for president against Barack Obama. In 2012, Mitt Romney won 22% of the LGBTQ vote. And in 2016, nationwide <a href="https://www.nbcnews.com/feature/nbc-out/meet-lgbtq-voters-who-backed-trump-n684181">exit poll data of LGBTQ voters</a> shows that Donald Trump received roughly 14% of the LGBTQ vote.</p>
<p>Harvey Milk, the late San Francisco city councilman, is <a href="https://www.nbcnews.com/feature/nbc-out/meet-lesbian-who-made-political-history-years-harvey-milk-n1174941">often incorrectly cited</a> as the first openly LGBTQ elected official. That pioneer was actually Kathy Kozachenko, who at age 21 won a seat on the Ann Arbor City Council in Michigan in 1974.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/367321/original/file-20201103-19-8ekwbd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black-and-white photo of Kozachenko wearing a newsboy hat" src="https://images.theconversation.com/files/367321/original/file-20201103-19-8ekwbd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/367321/original/file-20201103-19-8ekwbd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/367321/original/file-20201103-19-8ekwbd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/367321/original/file-20201103-19-8ekwbd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/367321/original/file-20201103-19-8ekwbd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=525&fit=crop&dpr=1 754w, https://images.theconversation.com/files/367321/original/file-20201103-19-8ekwbd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=525&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/367321/original/file-20201103-19-8ekwbd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=525&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Kathy Kozachenko was an out lesbian and a college student when she was elected to the Ann Arbor City Council.</span>
<span class="attribution"><a class="source" href="https://media1.s-nbcnews.com/j/newscms/2020_14/3292216/200401-kathy-kozachenko-se-432p_5562e4b980f96e95de85a43ab1d47e3c.fit-2000w.jpg">Human Rights Party records / Bentley Historical Library, University of Michigan</a></span>
</figcaption>
</figure>
<p>Nearly 50 years later, LGBTQ candidates have made <a href="https://www.nbcnews.com/feature/nbc-out/rainbow-wave-2-0-nearly-100-lgbtq-candidates-claim-victory-n1077886">historic strides in political representation</a>. In 2017, there were <a href="https://victoryinstitute.org/news/america-report-map-provides-comprehensive-look-lgbtq-elected-officials-u-s/">under 450 openly LGBTQ elected officials</a> in the entire U.S. <a href="https://www.advocate.com/election/2018/11/07/84-plus-lgbtq-people-elected-amid-rainbow-wave">Over 150 LGBTQ candidates won</a> elections at the <a href="https://victoryinstitute.org/wp-content/uploads/2018/06/Victory_Out-For-America-2018.pdf">federal, state and local levels in the 2018 midterm elections</a>. Another <a href="https://www.out.com/election/2019/11/06/over-80-lgbtq-candidates-won-election-2019-rainbow-wave">“rainbow wave”</a> came in 2019, bringing the total number of openly LGBTQ American elected officials to <a href="https://victoryinstitute.org/wp-content/uploads/2019/06/Victory-Institute-Out-for-America-Report-2019.pdf">just under 700</a>. </p>
<p><a href="https://www.forbes.com/sites/bowmanmarsico/2020/07/28/the-march-of-public-opinion-on-lgbt-identity-and-issues/?sh=67afe34b0996">Social acceptance of LGBTQ people</a> is growing too, with over 70% of Americans saying transgender people should be protected from discrimination, according to polling by the <a href="https://williamsinstitute.law.ucla.edu/wp-content/uploads/Public-Opinion-Trans-US-Aug-2019.pdf">Williams Institute at the UCLA School of Law</a>, and a similar percentage supporting <a href="https://news.gallup.com/poll/311672/support-sex-marriage-matches-record-high.aspx">marriage equality</a>. That has translated into ever more openly LGBTQ candidates running for office – and winning.</p><img src="https://counter.theconversation.com/content/149066/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy R. Bussey made small contributions to several 2020 Democratic campaigns but did not support, endorse, or in any other way aid any of the candidates discussed in this story.</span></em></p>Delaware’s Sarah McBride made history on Tuesday when she won a state Senate seat, becoming the US’s highest-ranking transgender politician. A record 1,006 LGBTQ candidates ran for office this year.Dorian Rhea Debussy, Associate Director for the Office of Diversity, Equity and Inclusion, Kenyon CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/803542017-07-04T23:01:10Z2017-07-04T23:01:10ZHow the Nazis destroyed the first gay rights movement<figure><img src="https://images.theconversation.com/files/176456/original/file-20170630-8203-170x8ih.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">'Damenkneipe,' or 'Ladies’ Saloon,' painted by Rudolf Schlichter in 1923. In 1937, many of his paintings were destroyed by the Nazis as 'degenerate art.'</span> </figcaption></figure><p>In 2017, Germany’s Cabinet approved <a href="http://www.bbc.com/news/world-europe-39350105">a bill</a> that would expunge the convictions of tens of thousands of German men for “homosexual acts” under that country’s anti-gay law known as “<a href="https://www.ushmm.org/learn/students/learning-materials-and-resources/homosexuals-victims-of-the-nazi-era/paragraph-175">Paragraph 175</a>.” That law dates back to 1871, when modern Germany’s first legal code was created. </p>
<p>It was repealed in 1994. But there was a serious movement to repeal the law in 1929 as part of a wider LGBTQ rights movement. That was just before the Nazis came to power, magnified the anti-gay law, then sought to annihilate gay and transgender Europeans. </p>
<p>The story of how close Germany – and much of Europe – came to liberating its LGBTQ people before violently reversing that trend under new authoritarian regimes is an object lesson showing that the history of LGBTQ rights is not a record of constant progress.</p>
<h2>The first LGBTQ liberation movement</h2>
<p>In the 1920s, Berlin <a href="https://books.google.com/books?id=UYh_OaQrEvcC&printsec=frontcover&dq=the+men+with+the+pink+triangle&hl=en&sa=X&ved=0ahUKEwjX0dX8uZzSAhWIRyYKHfj0DU8Q6AEIGjAA#v=onepage&q=nearly%20a%20hundred%20gay%20and%20lesbian%20bars%22&f=false">had</a> nearly 100 gay and lesbian bars or cafes. Vienna <a href="https://www.cambridge.org/core/books/opposing-fascism/homosexual-men-in-vienna-1938/54937C49AA3BBCC3E27C8B0E2FF5ABDE">had</a> about a dozen gay cafes, clubs and bookstores. In Paris, certain quarters were renowned for <a href="https://muse.jhu.edu/article/12215">open displays</a> of gay and trans nightlife. Even <a href="https://books.google.com/books?id=PW1GjP0_6Y4C&printsec=frontcover&dq=gay+paris+1920s&hl=en&sa=X&ved=0ahUKEwi-koifqprSAhXJLSYKHXFMBPoQ6AEILDAD#v=snippet&q=%22to%20florence%2C%20where%20he%20could%22&f=false">Florence</a>, Italy, had its own gay district, as did many smaller European cities.</p>
<p><a href="http://www.nytimes.com/2013/11/17/movies/different-from-the-others-a-1919-film-on-homosexuality.html">Films</a> <a href="https://books.google.com/books?id=aO7YCwAAQBAJ&printsec=frontcover&dq=robert+beachy+gay+berlin&hl=en&sa=X&ved=0ahUKEwjbluu9mN7SAhVI74MKHek_CxEQ6AEIGjAA#v=onepage&q=%22different%20from%20others%22&f=false">began</a> depicting sympathetic gay characters. Protests were organized against offensive depictions of LGBTQ people in print or on <a href="https://books.google.com/books?id=aO7YCwAAQBAJ&printsec=frontcover&dq=robert+beachy+gay+berlin&hl=en&sa=X&ved=0ahUKEwjbluu9mN7SAhVI74MKHek_CxEQ6AEIGjAA#v=snippet&q=">stage</a>. And media <a href="https://books.google.com/books?id=aO7YCwAAQBAJ&printsec=frontcover&dq=robert+beachy+gay+berlin&hl=en&sa=X&ved=0ahUKEwjbluu9mN7SAhVI74MKHek_CxEQ6AEIGjAA#v=snippet&q=entrepreneur&f=false">entrepreneurs</a> realized there was a middle-class gay and trans readership to whom they could cater.</p>
<p>Partly driving this new era of tolerance were the doctors and scientists who started looking at homosexuality and “transvestism” (a word of that era that encompassed transgender people) as a <a href="https://books.google.com/books?id=4ss2DAAAQBAJ&pg=PT1155&dq=hirschfield+transvestism+natural&hl=en&sa=X&ved=0ahUKEwjCk5eS_eXUAhXs5oMKHfwZDYkQ6AEIOTAE#v=onepage&q=normal%20variations%20on%20human%20experience&f=false">natural</a> characteristic with which some were born, and not a “derangement.” The story of Lili Elbe and the first modern sex change, made famous in the recent film <a href="http://www.imdb.com/title/tt0810819/">“The Danish Girl,”</a> reflected these trends.</p>
<p>For example, Berlin <a href="https://books.google.com/books?id=mWXFAAAAQBAJ&pg=PA83&dq=Berlin+opened+its+Institute+for+Sexual+Research&hl=en&sa=X&ved=0ahUKEwiTvuzA_eXUAhVFw4MKHURNC0QQ6AEIRzAG#v=snippet&q=opening%20the%20institute%20was%20a%20dream&f=false">opened</a> its Institute for Sexual Research in 1919, the place where the word “transsexual” was coined, and where people could receive counseling and other services. Its lead doctor, Magnus Hirschfeld, also consulted on the Lili Elbe sex change.</p>
<p>Connected to this institute was an organization called the “Scientific-Humanitarian Committee.” With the motto “justice through science,” this group of scientists and LGBTQ people <a href="https://books.google.com/books?id=m-mc76HwPdwC&pg=PA94&dq=motto,+%22justice+through+science,%22&hl=en&sa=X&ved=0ahUKEwiQ9bL0_eXUAhWDyoMKHWVsBn0Q6AEIKDAA#v=onepage&q=motto%2C%20%22justice%20through%20science%2C%22&f=false">promoted</a> equal rights, arguing that LGBTQ people were not aberrations of nature.</p>
<p>Most European capitals hosted a branch of the group, which sponsored talks and sought the repeal of Germany’s “Paragraph 175.” Combining with other liberal groups and politicians, it succeeded in <a href="https://books.google.com/books?id=xmlWr4aAt4EC&pg=PA204&dq=motto,+%22justice+through+science%22+for+a+repeal+of+Paragraph+175&hl=en&sa=X&ved=0ahUKEwipvaun_uXUAhXM8YMKHQwrD0IQ6AEIMTAC#v=onepage&q=motto%2C%20%22justice%20through%20science%22%20for%20a%20repeal%20of%20Paragraph%20175&f=false">influencing</a> a German parliamentary committee to recommend the repeal to the wider government in 1929.</p>
<h2>The backlash</h2>
<p>While these developments didn’t mean the end of centuries of intolerance, the 1920s and early ‘30s certainly looked like the beginning of the end. On the other hand, the greater “out-ness” of gay and trans people provoked their opponents.</p>
<p>A French reporter, bemoaning the sight of uncloseted LGBTQ people in public, <a href="https://muse.jhu.edu/article/12215">complained</a>, “the contagion … is corrupting every milieu.” The Berlin police grumbled that magazines aimed at gay men – which they called “<a href="https://books.google.com/books?id=YquzCgAAQBAJ&printsec=frontcover&dq=laurie+marhoefer+sex+and+the+weimar&hl=en&sa=X&ved=0ahUKEwisxuafhJrSAhXB3SYKHV4pBUAQ6AEIGjAA#v=onepage&q=%22obscene%20press%20materials%22&f=false">obscene press materials</a>” – were proliferating. In Vienna, lectures of the “Scientific Humanitarian Committee” might be packed with supporters, but one was <a href="https://www.cambridge.org/core/books/opposing-fascism/homosexual-men-in-vienna-1938/54937C49AA3BBCC3E27C8B0E2FF5ABDE">attacked</a> by young men hurling stink bombs. A Parisian town councilor in 1933 called it “a moral crisis” that gay people, known as “inverts” at that time, could be seen in public.</p>
<p>“Far be it from me to want to turn to fascism,” <a href="https://muse.jhu.edu/article/12215">the councilor said</a>, “but all the same, we have to agree that in some things those regimes have sometimes done good… One day Hitler and Mussolini woke up and said, ‘Honestly, the scandal has gone on long enough’ … And … the inverts … were chased out of Germany and Italy the very next day.”</p>
<h2>The ascent of Fascism</h2>
<p>It’s this willingness to make a blood sacrifice of minorities in exchange for “normalcy” or prosperity that has observers drawing uncomfortable comparisons between then and now.</p>
<p>In the 1930s, the Depression spread economic anxiety, while political fights in European parliaments tended to spill outside into actual <a href="https://books.google.com/books?id=V42QBAAAQBAJ&pg=PT110&dq=germany+rise+fascism+street+fighting+violence&hl=en&sa=X&ved=0ahUKEwik-ufk_uXUAhWBzIMKHWK8B9IQ6AEIQTAE#v=onepage&q=violence%20occupied&f=false">street fights</a> between Left and Right. Fascist parties offered Europeans a choice of stability at the price of democracy. Tolerance of minorities was destabilizing, they said. Expanding liberties gave “undesirable” people the liberty to undermine security and <a href="https://books.google.com/books?id=YquzCgAAQBAJ&printsec=frontcover&dq=laurie+marhoefer+sex+and+the&hl=en&sa=X&ved=0ahUKEwiyp8Hknd7SAhUI0oMKHRxXAqAQ6AEIGjAA#v=snippet&q=complained%20of%20the%20%22rapid%20flood%22&f=false">threaten traditional</a> “moral” culture. Gay and trans people were an obvious target.</p>
<p>What happened next shows the whiplash speed with which the progress of a generation can be thrown into reverse.</p>
<h2>The nightmare</h2>
<p>One day in May 1933, pristine white-shirted students marched in front of Berlin’s Institute for Sexual Research – that safe haven for LGBTQ people – calling it “Un-German.” Later, a mob hauled out its library to be burned. Later still, its acting head <a href="https://books.google.com/books?id=t7pEmb3nQ2cC&pg=PA66&dq=kurt+hiller+institute+berlin+concentration+camp&hl=en&sa=X&ved=0ahUKEwi9rfquqOXSAhUBGGMKHTEYDiUQ6AEIMTAD#v=onepage&q=kurt%20hiller%20was%20arrested&f=false">was arrested</a>.</p>
<p>When Nazi leader Adolph Hitler needed to <a href="http://www.historyplace.com/worldwar2/holocaust/h-roehm.htm">justify</a> arresting and murdering former political allies in 1934, he said they were gay. This <a href="https://www.ushmm.org/wlc/en/article.php?ModuleId=10007885">fanned</a> anti-gay zealotry by the Gestapo, which opened a special anti-gay <a href="http://www.cs.cmu.edu/afs/cs/usr/scotts/ftp/pro-choice/himmler-order.html">branch</a>. During the following year alone, the Gestapo arrested more than <a href="https://www.cambridge.org/core/books/opposing-fascism/homosexual-men-in-vienna-1938/54937C49AA3BBCC3E27C8B0E2FF5ABDE">8,500</a> gay men, quite possibly using a list of names and addresses seized at the Institute for Sexual Research. Not only was Paragraph 175 not erased, as a parliamentary committee had recommended just a few years before, it was amended to be more expansive and punitive. </p>
<p>As the Gestapo spread throughout Europe, it expanded the hunt. In Vienna, it <a href="https://www.cambridge.org/core/books/opposing-fascism/homosexual-men-in-vienna-1938/54937C49AA3BBCC3E27C8B0E2FF5ABDE">hauled in</a> every gay man on police lists and questioned them, trying to get them to name others. The fortunate ones went to jail. The less fortunate went to <a href="https://www.cambridge.org/core/books/opposing-fascism/homosexual-men-in-vienna-1938/54937C49AA3BBCC3E27C8B0E2FF5ABDE">Buchenwald and Dachau</a>. In conquered France, Alsace police <a href="https://muse.jhu.edu/article/12215">worked with</a> the Gestapo to arrest at least 200 men and send them to concentration camps. Italy, with a fascist regime obsessed with virility, sent at least 300 gay men to brutal camps during the war period, declaring them “<a href="https://books.google.com/books?id=NLrCagrmdvwC&dq=book+%22the+enemy+of+the+new+man%22&hl=en&sa=X&ved=0ahUKEwiE7MK3lZ3SAhVDeCYKHV_ABbIQ6AEIGjAA">dangerous</a> for the integrity of the race.” </p>
<p>The total number of Europeans arrested for being LGBTQ under fascism is impossible to know because of the lack of reliable records. But a conservative estimate is that there were many <a href="https://collections.ushmm.org/search/catalog/bib214108">tens of thousands</a> to <a href="https://daily.jstor.org/ernst-rohm-the-highest-ranking-gay-nazi/">one hundred thousand</a> arrests during the war period alone.</p>
<p>Under these nightmare conditions, far more LGBTQ people in Europe painstakingly hid their genuine sexuality to avoid suspicion, <a href="https://books.google.com/books?id=UYh_OaQrEvcC&printsec=frontcover&dq=the+men+with+the+pink+triangle&hl=en&sa=X&ved=0ahUKEwjWjr-vj5_SAhVI4CYKHWsgB-oQ6AEIHDAA#v=snippet&q=%22escaped%20into%20marriage%22&f=false">marrying</a> members of the opposite sex, for example. Still, if they had been prominent members of the gay and trans community before the fascists came to power, as Berlin lesbian club owner Lotte Hahm was, it was too late to hide. She was <a href="https://books.google.com/books?id=PW1GjP0_6Y4C&printsec=frontcover&dq=A+history+of+homosexuality+in+Europe:+Berlin,+London,+Paris,+1919-1939&hl=en&sa=X&ved=0ahUKEwi-krqE9p7SAhVG7YMKHaw9DhkQ6AEIHDAA#v=snippet&q=lesbian%20club%20Violetta%20was%20arr">sent</a> to a concentration camp. </p>
<p>In those camps, gay men were marked with a pink triangle. In these places of horror, men with pink triangles were <a href="https://www.ushmm.org/m/pdfs/20050726-giles.pdf">singled out</a> for particular abuse. They were mechanically <a href="https://books.google.com/books/about/I_Pierre_Seel_Deported_Homosexual.html?id=S6sdDOjK05YC">raped</a>, <a href="https://www.jstor.org/stable/260778?seq=1#page_scan_tab_contents">castrated</a>, <a href="https://books.google.com/books?id=UYh_OaQrEvcC&printsec=frontcover&dq=men+with+the+pink+triangle&hl=en&sa=X&ved=0ahUKEwiF-5rUjJ_SAhWF7iYKHairBhUQ6AEIHDAA#v=snippet&q=prioritized%20for%20medical%20experiments&f=false">favored</a> for medical <a href="https://books.google.com/books?id=UYh_OaQrEvcC&printsec=frontcover&dq=%22the+men+with+the+pink+triangle%22&hl=en&sa=X&ved=0ahUKEwjirZC8mJ_SAhUl3YMKHXUZDDsQ6AEIGjAA#v=onepage&q=capsules&f=false">experiments</a> and <a href="https://books.google.com/books?id=S6sdDOjK05YC&printsec=frontcover&dq=I+pierre+seel&hl=en&sa=X&ved=0ahUKEwjBhKT4jZ_SAhVCRiYKHQdDAc4Q6AEIHDAA#v=snippet&q=%22never%20forget%20the%20barbaric%20murder%22&f=false">murdered</a> for guards’ sadistic <a href="https://books.google.com/books?id=UYh_OaQrEvcC&printsec=frontcover&dq=men+with+the+pink+triangle&hl=en&sa=X&ved=0ahUKEwiF-5rUjJ_SAhWF7iYKHairBhUQ6AEIHDAA#v=onepage&q=%22use%20us%20pink-triangle%20prisoners%20as%20living%20targets%22&f=false">pleasure</a> even when they were not sentenced for “liquidation.” One gay man attributed his survival to <a href="https://books.google.com/books?id=UYh_OaQrEvcC&dq=tear+off+pink+triangle+for+red&source=gbs_navlinks_s">swapping</a> his pink triangle for a red one – indicating he was merely a Communist. They were <a href="https://books.google.com/books?id=cRUfXHoNfNcC&dq=V%C3%ADctimas+de+la+victoria&hl=en&sa=X&ved=0ahUKEwiQo4Hcjp_SAhUFOyYKHePeCfoQ6AEIGjAA">ostracized</a> and tormented by their fellow inmates, too.</p>
<h2>The looming danger of a backslide</h2>
<p>This isn’t 1930s Europe. And making superficial comparisons between then and now can only yield superficial conclusions. </p>
<p>But with new forms of authoritarianism entrenched and seeking to expand in Europe and beyond, it’s worth thinking about the fate of Europe’s LGBTQ community in the 1930s and ‘40s – a timely note from history as Germany <a href="https://www.reuters.com/article/us-germany-gay-marriage-idUSKBN19L0PQ">approves</a> same-sex marriage and on this first anniversary of <a href="https://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html?_r=0">Obergefell v. Hodges</a>. </p>
<p>In 1929, Germany came close to erasing its anti-gay law, only to see it strengthened soon thereafter. Only after a gap of 88 years are convictions under that law being annulled. </p>
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<p class="fine-print"><em><span>John Broich does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The 1920s and early ‘30’s looked like the beginning of the end for centuries of gay intolerance. Then came fascism and the Nazis.John Broich, Associate Professor, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547212016-02-15T03:31:47Z2016-02-15T03:31:47ZJustice Antonin Scalia: more quotable than influential<p>Justice Antonin Scalia will be remembered for his brilliant intellect, his acerbic wit and his insistence on interpreting law by reference to text and history. </p>
<p>He was long the intellectual leader of the conservative wing of the United States Supreme Court. However, he often seemed more interested in being a leader than in having followers. He was no coalition builder, and as evidenced by his losses in the court’s major decisions last term, his jurisprudence is, in my view, likely to have limited impact.</p>
<p>As someone who had the privilege of clerking on the Supreme Court (for Justice John Paul Stevens) during Justice Scalia’s tenure, I will continue to enjoy my memories of Justice Scalia’s dynamic interaction with clerks. As a professor of constitutional law, I will continue to study and to teach Justice Scalia’s incisive opinions. </p>
<p>When it comes to learning how courts actually interpret the law, though, the majority opinions on which my class focuses are unlikely to be those written by Justice Scalia. </p>
<h2>Champion of new conservatism</h2>
<p>Justice Scalia was appointed to the court by President Ronald Reagan in 1986 at a pivotal time for the conservative movement. </p>
<p>Throughout the 1960s and 1970s, judicial conservativism generally meant adherence to precedent and reluctance to invalidate legislative acts. However, the conservative movement of the 1980s sought instead to undo prior liberal decisions and to limit the power of the national government by rigorously scrutinizing federal statutes.</p>
<p>Justice Scalia served as a perfect champion of these new conservative ideals. He embraced <a href="http://www.heritage.org/constitution/#!http://www1.heritage.org/introessays/3/the-originalist-perspective">“originalism,”</a> the idea that insists that the Constitution must be interpreted by reference to its meaning at the time of its adoption. This approach rejects the idea that new rights may emerge over time. </p>
<p>He also endorsed <a href="http://www.virginialawreview.org/sites/virginialawreview.org/files/347.pdf">textualism</a>, which interprets statutes by focusing solely on their language, rather than the legislature’s overall purpose in enacting them. By refusing to attend to the purpose of legislation, textualism imposes a substantial burden on the legislature to draft complex statutes with exacting precision.</p>
<p>These interpretive swords of originalism and textualism allowed Justice Scalia both to attack liberal precedents that had strayed from what he understood as the Constitution’s historic meaning and to limit the scope of governmental power. </p>
<p>Justice Scalia swung his interpretive swords with notable gusto, and his style and substance achieved some notable victories. His colleagues, as well as advocates before the court, knew that references to legislative history, committee reports or other indications of legislative purpose would draw his ire. </p>
<p>Singlehandedly, he changed the way in which statutes were discussed in the United States Supreme Court.</p>
<p>Beginning in the 1990s, a new conservative majority on the Supreme Court limited the power of the national government, striking down or narrowing important federal legislation such as the <a href="https://www.law.cornell.edu/uscode/text/42/chapter-136/subchapter-III">Violence Against Women Act</a>, <a href="http://www.eeoc.gov/laws/statutes/adea.cfm">the Age Discrimination in Employment Act</a> and the <a href="http://library.clerk.house.gov/reference-files/PPL_VotingRightsAct_1965.pdf">Voting Rights Act</a>. </p>
<p>Writing for the court in <a href="https://www.oyez.org/cases/2007/07-290">District of Columbia v. Heller</a> in 2008, Justice Scalia relied on the original meaning of the Constitution in finding a Second Amendment right for an individual to possess a handgun. </p>
<p>In the <a href="https://www.oyez.org/cases/2008/08-205">Citizens United</a> case in 2010, the court upended decades of precedent to restrict Congress’ ability to regulate the financing of political campaigns.</p>
<h2>Limited victories</h2>
<p>But Scalia’s victories were limited. His style did not always ingratiate him with potential allies on the court. He did not mince words, and he attacked the opinions of other justices, liberal and conservative alike, with unusual ferocity.</p>
<p>In <a href="https://www.law.cornell.edu/supremecourt/text/492/">Webster v. Reproductive Health Services</a> in 1989, three years after joining the court, Justice Scalia famously attacked Justice Sandra Day O'Connor. In this important abortion case, Justice Scalia criticized Justice O’Connor’s opinion as “irrational” and argued that a particular assertion of hers “cannot be taken seriously.” </p>
<p>Three years later, Justice Scalia ended up on the losing side of <a href="https://www.law.cornell.edu/supct/html/91-744.ZS.html">Planned Parenthood v. Casey</a>, as Justice O’Connor coauthored an opinion for a five-justice majority reaffirming the right to an abortion. </p>
<p>In 2015, finding himself in dissent in the year’s most significant cases, Justice Scalia’s vitriol reached new heights. </p>
<p>He derided the majority opinion of Chief Justice John Roberts, which upheld certain subsidies under the Affordable Care Act or “Obamacare.” Referring to this and a previous opinion by the chief justice upholding the ACA, Justice Scalia <a href="https://theconversation.com/obamacare-victory-shows-failure-of-scalias-conservative-revolution-43890">sniped</a>,</p>
<blockquote>
<p>We should start calling this law SCOTUS care.</p>
</blockquote>
<p>Attacking the sometimes lofty rhetoric of the majority opinion by Justice Anthony Kennedy in the same-sex marriage case, Justice Scalia <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">wrote</a> that if he ever joined an opinion with that kind of language, “I would hide my head in a bag.” </p>
<p>And these were his comments directed at justices who generally voted with him.</p>
<p>While Justice Scalia’s caustic style may have been off-putting to some justices, what was more significant was that his interpretive approach failed to win over his colleagues. The last term of the court made that failure clear.</p>
<p>In <a href="http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf">King v. Burwell</a>, a strict reading of the text of the Affordable Care Act would seem to have authorized federal subsidies only for health care exchanges established by states, not for those established by the federal government in states that refused to create exchanges. </p>
<p>If textualism had prevailed, the scope of federal power would have been limited, in this case by potentially gutting the ACA.</p>
<p>But Chief Justice Roberts instead applied traditional principles of statutory interpretation and looked to the overall purpose of the legislative scheme. </p>
<p>By a 6-3 vote, Scalia’s textualism lost, and the ACA won. </p>
<p>From the perspective of the six-justice majority, it made no sense to focus solely on the words of one section, instead of the larger goals of the legislation. In this approach, the court acts as Congress’ partner, not its censor.</p>
<h2>A mixed legacy</h2>
<p>Justice Scalia’s focus on beginning any interpretation with the text of a statute may endure, but his rejection of other interpretive guides never found a lasting home on the court.</p>
<p>Even in his lifetime, his brand of textualism could not earn majority support.</p>
<p>He changed how advocates and judges talk about statutes, but not how they ultimately interpret them.</p>
<p>His attempt to reorient interpretation of the Constitution similarly failed to achieve lasting success.</p>
<p><a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>, for example, the case affirming a right to same-sex marriage, constituted a dramatic repudiation of Justice Scalia’s originalism. </p>
<p>For Justice Scalia, the disposition was easy: </p>
<blockquote>
<p>When the Fourteenth Amendment was ratified in 1868, every state limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.</p>
</blockquote>
<p>But for the five-justice majority, the rights of loving couples to marry today could not be resolved simply by reference to the views of people who lived 150 years ago. </p>
<p>Contrary to Justice Scalia’s originalism, Justice Kennedy’s majority opinion understood the Constitution as entrusting to </p>
<blockquote>
<p>future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.</p>
</blockquote>
<p>The idea of a “living Constitution,” always anathema to Justice Scalia, prevailed.</p>
<p>Justice Scalia’s opinions, full of erudition, wit, and occasional vitriol, will long be quoted and will fill the pages of legal textbooks. But the memorable opinions will largely be dissents. </p>
<p>His lasting influence will be found in admirers off the court, not in adherents on the bench. He was the champion of a movement that achieved many of its goals but did not succeed in fundamentally reshaping the law in the United States. </p>
<p>He will go down in history, in my view, as one of the most quotable justices, but not one with the deepest impact.</p><img src="https://counter.theconversation.com/content/54721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robert Schapiro does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The long-serving justice changed how judges talk about statutes, but not, argues one law professor, how they ultimately interpret them.Robert Schapiro, Dean and Professor of Law , Emory UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/439792015-06-27T23:22:26Z2015-06-27T23:22:26ZSame-sex ruling was no surprise to Supreme Court gamblers — and shouldn’t be to you either<figure><img src="https://images.theconversation.com/files/86624/original/image-20150627-1421-q24hml.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">"No duh" was the reaction of some to the Supreme Court's same-sex ruling.</span> <span class="attribution"><span class="source">Reuters</span></span></figcaption></figure><p>The US Supreme Court <a href="https://theconversation.com/the-supreme-court-upholds-same-sex-marriage-expert-reaction-43961">ruled</a> on Friday, by five votes to four, that same-sex couples are constitutionally entitled to marry. The previous day, the same court <a href="https://theconversation.com/experts-react-as-obamacare-survives-another-near-death-experience-43233">upheld</a> by six votes to three a key funding platform of the Affordable Care Act (ACA), sometimes termed “Obamacare.” </p>
<p>What do these landmark decisions tell us about the way the Supreme Court might rule in the months and years ahead? Could this even be the beginning of a new wave of liberalism at the court? </p>
<h2>No surprise to some</h2>
<p>To answer these questions, we should pause to ask a different one. Were either of these decisions unexpected? Were they surprising? To some they were, but not to those who are well-versed in the ways of the court. The <a href="https://fantasyscotus.lexpredict.com">FantasySCOTUS prediction market</a>, for example, nailed both results exactly. (SCOTUS is the acronym for Supreme Court of the United States.)</p>
<p>For those unfamiliar with FantasySCOTUS, it is a type of “wisdom of the crowd” fantasy league, sponsored by Thomson Reuters and populated by lawyers, law students and others, all of whom compete for cash prizes (up to US$10,000) by forecasting Supreme Court decisions. </p>
<p>As such, it is like a fantasy sports league for those who follow the Supreme Court as closely as others might follow the New England Patriots or the New York Yankees. Or perhaps more closely, like the Hollywood Stock Exchange, where followers <a href="http://www.hsx.com/about">trade</a> contracts on the success of the next movie or the next Oscar winner.</p>
<p>The “<a href="https://fantasyscotus.lexpredict.com/case-prediction/obergefell-v-hodges-same-sex-marriage-question-1/">crowd prediction</a>” for the gay marriage (Obergefell v Hodges) case was a 5-4 decision in favor of constitutionally guaranteed same-sex marriage rights. The <a href="https://fantasyscotus.lexpredict.com/case-prediction/king-v-burwell/">prediction</a> for the ACA (Burwell v King) case was a decision of 6-3 in favor of the continued funding arrangements for Obamacare. In both cases, FantasySCOTUS was spot on.</p>
<p>So these rulings came as no surprise to the prediction market. What about legal scholars? The Wall Street Journal Law Blog <a href="http://blogs.wsj.com/law/2015/06/22/prediction-panel-how-will-the-supreme-court-rule-on-gay-marriage/">asked</a> four experts to forecast the outcome.</p>
<p>Two of them predicted a 5-4 or 6-3 majority in favor of constitutionally guaranteed rights, one called it correctly as 5-4, with one dissenter. </p>
<h2>The reigning champion</h2>
<p>But more pertinently, perhaps, Jacob Berlove, the <a href="http://fivethirtyeight.com/features/why-the-best-supreme-court-predictor-in-the-world-is-some-random-guy-in-queens/">FantasySCOTUS reigning champion</a>, as well as the other two leaders in the league, called it 5-4 in the correct direction. </p>
<p>That Berlove got it right is not altogether surprising. He was already famous enough in 2012 to be labeled “the best Supreme Court predictor in the world,” having won the league three times in a row. </p>
<p>So how easy is it to guess the opinions of the Supreme Court justices? Not really that difficult, according to my reading of the evidence, especially on touchstone cases like Bush v Gore (2000), Citizens United v FEC (2009), National Federation of Independent Business v Sebelius (2012), Obergefell v Hodges (2015) and Burwell v King (2015).</p>
<p>Take the 2012 case, in which the court was asked to decide whether President Barack Obama’s signature Affordable Care Act was in fact constitutional. Forecasts of the outcome diverged wildly. </p>
<p>In any event, the ACA was saved by the deciding vote of Chief Justice John Roberts, who ruled that while the individual mandate on citizens to buy insurance or face a penalty was not constitutional under the powers of Congress to regulate commerce, it was constitutional under its powers to tax. And so, by 5-4, the individual mandate that funded the ACA was upheld. </p>
<p>Was this predictable? Yes, if we adopt an approach to forecasting these closed-door decisions based on the very simple idea that Supreme Court justices vote in accord with their personal preferences, as I <a href="https://www.ntu.ac.uk/research/document_uploads/167833.pdf">have argued</a> elsewhere. In some cases, these are as simple as siding with what they want the law to be, regardless of what they actually believe it to be. This easily explains the <a href="http://www.pbs.org/wnet/supremecourt/future/landmark_bush.html">Bush v Gore decision</a> in 2000, which overturned the Florida Supreme Court and authorized the termination of the recount, handing the election to George W Bush by 5-4 (five Bush supporters, four Gore supporters). </p>
<p>In that case, one of the conservative justices (Justice Antonin Scalia) had to perform legal gymnastics to square that with every vote he had previously cast, notably on states’ rights. </p>
<p>Some, like Roberts – who wasn’t around for that ruling – have more nuanced preferences, in his case a desire to see enacted the outcome he prefers but with a strong belief in the authority of Congress to decide legislation as it sees fit. In both ACA cases, the chief justice was acting in accord with his cherished personal attitude toward the role of Congress. </p>
<p>Only Justice Anthony Kennedy was in any way a close call, his personal opposition to Obamacare conflicting with his deeply held aversion to an outcome that would in effect coerce states into setting up their own marketplaces if they wanted their citizens to have insurance. So this case could have gone 5-4 or 6-3, but either way it was a pretty safe bet to be decided in the direction it did. </p>
<h2>Inevitable and predictable</h2>
<p>The Supreme Court decision on same-sex marriage was much easier to predict. Five of the justices were personally in favor of same-sex marriage equality, while four were personally opposed. So the ruling was as inevitable as it was predictable. </p>
<p>In a court that is currently weighted 5-4 to the conservative side of the argument, however, victories are to be savored by liberals, but certainly not to be expected. Any new wave of liberalism at the Supreme Court would first require a new wave of justices, and for the moment, at least, that does not look likely to be happening any time soon.</p><img src="https://counter.theconversation.com/content/43979/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Leighton Vaughan Williams does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Lawyers and law students betting on recent decisions have been spot on predicting outcomes. It isn’t all that hard, when you think about it.Leighton Vaughan Williams, Professor of Economics and Finance and Director, Betting Research Unit & Political Forecasting Unit, Nottingham Trent UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/439612015-06-26T23:36:06Z2015-06-26T23:36:06ZThe Supreme Court upholds same-sex marriage: expert reaction<p><em>Editor’s note: Today the Supreme Court ruled 5-4 that marriage is a legal right – striking down same-sex marriage bans in 14 states and ordering states to recognize same-sex marriages performed in other states.</em> </p>
<h2>Marriage is a fundamental right</h2>
<p><strong>Danielle Weatherby, University of Arkansas</strong></p>
<p>Today’s decision in Obergefell v Hodges came out on the anniversary of the decisions in <a href="https://www.law.cornell.edu/supct/html/02-102.ZS.html/">Lawrence v Texas</a> and <a href="http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf">US v Windsor</a>, two other landmark decisions for same-sex couples. Justice Kennedy, the modern hero of LGBT rights, authored the majority opinion. </p>
<p>In his opinion <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">Justice Kennedy</a> traced the court’s invocation of the Fourteenth Amendment’s fundamental rights analysis, in striking down previous marriage bans like the Defense of Marriage Act’s definition of marriage as between one man and one woman in US v Windsor. Fundamental rights are certain rights, both explicit and implicit in the Constitution, that the court has said are “deeply-rooted in this Nation’s history and tradition.” </p>
<p>And Justice Kennedy also summarized the historical shift of the institution of marriage. </p>
<p>Marriage, he explained, has gone from a male-dominated legal entity, governed by the law of coverture (a legal doctrine that a woman’s legal identity is subsumed by her husband’s when they marry), to an institution that sanctifies a loving relationship between two individuals. Kennedy noted that “the annals of human history reveal the transcendent importance of marriage.” </p>
<p>The majority opinion in Obergefell v Hodges echoes the broad-sweeping fundamental rights language used before in the majority opinion in US v Windsor. “Marriage,” wrote Justice Kennedy in today’s opinion, “is the keystone of the Nation’s social order.” Further in the opinion, he used phrases such as: “Marriage is inherent in the concept of individual autonomy” and “choices about marriage shape an individual’s destiny.” </p>
<p>Ultimately, the decision upheld the dignity attached to personal choices about marriage and the right to autonomy to make choices about whom to marry.</p>
<p>The court refrained from categorizing “sexual orientation” as a suspect class (that is, a class of individuals who have been discriminated against historically). This means the court bypassed the dicey equal protection analysis that would have engendered a level of higher judicial scrutiny in analyzing a law as to whether it has violated the rights of a suspect class. Had sexual orientation been elevated into the category of a suspect class, the decision would have had broader implications for the LGBT community. </p>
<p>Many commentators thought that Chief Justice Roberts might be persuaded to conclude that same-sex marriage bans discriminate on the basis of gender. </p>
<p>But Roberts’ staunch dissent (which was joined by Justices Thomas and Scalia) focused on who should bring about change on the marriage issue. Should it be the nine justices of the United States Supreme Court, or the people, by exercising their right to vote?</p>
<p>The dissenters maintained that the five justices in the majority usurped the right of states and of the people to engage in the democratic process.</p>
<p>The majority answered these concerns, pointing to referendums, legislative debates, grassroot campaigns, and over 100 amici briefs as evidence of a long and robust public deliberation.</p>
<p>Roberts’ <a href="http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">dissent</a> forecasts what will likely result in a backlash narrative following today’s decision:</p>
<blockquote>
<p>Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage – when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.</p>
</blockquote>
<p>The tension between religion and civil rights will undoubtedly continue to play out. Conservative states deeply rooted in religion will push back with legislative measures, such as overly robust state religious freedom laws, that aim to find a loophole around the court’s same-sex marriage decision. </p>
<p>The decision in Obergefell v Hodges will give legal enthusiasts much to talk about for the foreseeable future. But, for same-sex couples, it will have real-life and immediate consequences. </p>
<h2>Justice Kennedy comes out for same-sex marriage</h2>
<p><strong>Timothy Holbrook, Emory University</strong></p>
<p>Today’s outcome in Obergefell v Hodges, which rules that bans on same-sex marriages are unconstitutional, was expected by many. What wasn’t clear, however, was the reasoning the court would use. </p>
<p>Are these bans unconstitutional because there is a fundamental right to marriage that must include same-sex couples under the Due Process Clause of the Fourteenth Amendment? </p>
<p>Is sexual orientation, like race, a suspect class such that the bans violated the Equal Protection Clause because they lacked a compelling justification? </p>
<p>Or, even if sexual orientation was not a suspect class, did such bans lack a rational basis? </p>
<p>The lower courts, even those finding a constitutional right to same-sex marriage, had splintered as to the reason why such a right existed. </p>
<p>Justice Anthony Kennedy wrote today’s majority opinion, and much of this splintering by the lower courts was the result of his previous opinions involving the rights of gays and lesbians. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/86603/original/image-20150626-1442-bqi9tj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/86603/original/image-20150626-1442-bqi9tj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=762&fit=crop&dpr=1 600w, https://images.theconversation.com/files/86603/original/image-20150626-1442-bqi9tj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=762&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/86603/original/image-20150626-1442-bqi9tj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=762&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/86603/original/image-20150626-1442-bqi9tj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=958&fit=crop&dpr=1 754w, https://images.theconversation.com/files/86603/original/image-20150626-1442-bqi9tj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=958&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/86603/original/image-20150626-1442-bqi9tj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=958&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Anthony Kennedy.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Anthony_Kennedy#/media/File:Anthony_Kennedy_official_SCOTUS_portrait.jpg">SCOTUS</a></span>
</figcaption>
</figure>
<p>In striking down anti-sodomy laws in Lawrence v Texas in 2003, Justice Kennedy was a bit cagey, rooting the decision in the Due Process Clause, but never explaining what fundamental right, if any, was at issue. He couched the reasoning in terms of privacy but never expressly defined the right. It was unclear, as Justice Scalia pointed out in his dissent, whether the majority was identifying a fundamental right or simply saying that anti-sodomy statutes served no rational basis.</p>
<p>Kennedy’s decision in United States v Windsor in 2013 was even more confusing. In Windsor, the Supreme Court found part of the Defense of Marriage Act (DOMA) unconstitutional as it related to federal recognition of same-sex marriages. </p>
<p>DOMA defined “marriage” for federal purposes as being between a woman and a man. The court found the law unconstitutional, requiring the federal government to recognize same-sex marriages from those states that had legalized them. But the court expressly did not find a constitutional right to same-sex marriage. Justice Kennedy’s reasoning was unclear, mixing concerns of dignity for same-sex couples with preservation of the states’ prerogatives to regulate domestic relationships, including marriage. </p>
<p>Now, in Obergefell v Hodges, the veil has been removed: marriage is a fundamental right that must include same-sex couples under the Due Process Clause. This reasoning, though, is rather narrow. It leaves to another day the issue of whether sexual orientation should be treated as a suspect class, limiting the potential sweep of the decision. </p>
<p>Interestingly, all four dissenters – Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas – wrote their own decisions in this case, something that is rather rare. All seemed concerned with the court’s disruption of the political process taking place in states that had yet to legalize same-sex marriage.</p>
<p>The court’s decision undeniably disrupts that process. All of the dissenters noted future concerns with the intersection of same-sex marriage and religious freedoms and beliefs. Though Justice Kennedy tried to assuage those concerns, the dissenters rightfully noted that conflict is likely to come down the pipeline. </p>
<p>Indeed, the Chief Justice’s dissent, taking a page from previous decisions by Justice Scalia, laid out many of the likely next legal challenges, including the issue of whether bans on polygamy can withstand constitutional challenge. All of these issues will be affected by the court’s decision.</p>
<p>Finally, the rhetoric of all of these opinions is important. The majority and dissents were respectful of gay and lesbian couples, which marks a sharp turn from previous decisions like <a href="https://www.law.cornell.edu/supremecourt/text/478/186">Bowers v Hardwick</a> in 1986 and even Lawrence v Texas in 2003. In his dissent in Lawrence, Justice Scalia accused the court of taking sides in a “culture war.” </p>
<p>But today the court was respectful to same-sex relationships. The chief justice, while dissenting, gestured to same-sex couples to “Celebrate the opportunity for a new expression of commitment to a partner.” This rhetoric matters, as it demonstrates the gains in respect for LGBT relationships, even by those who oppose marriage equality as a constitutional matter. </p>
<p>In this regard, the lesbian, gay, bisexual and transgender community has truly made progress. </p>
<h2>Judicial confirmation battles matter</h2>
<p><strong>Robert A. Schapiro, Emory University</strong></p>
<p>Judicial confirmation battles matter. Sometimes they matter a lot. That was the message of today’s historic decision finding a constitutional right to same-sex marriage.</p>
<p>In 1987, after a heated confirmation fight, the Senate rejected the nomination of Robert Bork. </p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/86605/original/image-20150626-1428-ptr1rz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/86605/original/image-20150626-1428-ptr1rz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=908&fit=crop&dpr=1 600w, https://images.theconversation.com/files/86605/original/image-20150626-1428-ptr1rz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=908&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/86605/original/image-20150626-1428-ptr1rz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=908&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/86605/original/image-20150626-1428-ptr1rz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1141&fit=crop&dpr=1 754w, https://images.theconversation.com/files/86605/original/image-20150626-1428-ptr1rz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1141&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/86605/original/image-20150626-1428-ptr1rz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1141&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Robert Bork at the White House before the hearings.</span>
<span class="attribution"><a class="source" href="https://en.wikipedia.org/wiki/Anthony_Kennedy#/media/File:Anthony_Kennedy_official_SCOTUS_portrait.jpg">US Government</a></span>
</figcaption>
</figure>
<p>Much of the <a href="http://www.cqpress.com/incontext/SupremeCourt/bork_confirmation.htm">confirmation debate</a> focused on Bork’s opposition to the Supreme Court’s recognition of rights not firmly rooted in the text of the Constitution, such as the right to privacy. </p>
<p>Following Bork’s defeat, President Ronald Reagan instead named <a href="http://www.loc.gov/law/find/nominations/kennedy/hearing.pdf">Anthony Kennedy</a> to the court.</p>
<p>Today, the significance of that confirmation battle became clear, as Justice Kennedy relied on evolving rights, such as the right to privacy, in casting the deciding vote in favor of a right to same-sex marriage. </p>
<p>Robert Bork died several years ago, but it is unimaginable that Robert Bork would have written an opinion like the one authored by Justice Kennedy in this case.</p>
<p>With today’s decision, Justice Kennedy completed his 20-year journey leading the court toward a recognition of the rights of gays and lesbians. </p>
<p>That journey began in his 1996 decision in the <a href="http://www.oyez.org/cases/1990-1999/1995/1995_94_1039">Romer case,</a> and since then Justice Kennedy has written every major Supreme Court opinion on gay rights issues.</p>
<p>In each of those cases, Justice Antonin Scalia has penned a vituperative dissent, criticizing the court for imposing on the entire country the values of an elite legal culture. </p>
<p>Today was no exception.</p>
<p>Chief Justice Roberts’ dissent merely emphasized the general danger of courts intervening in matters that might best be left to the democratic process. Justice Scalia took pains to point out the particular ways in which this Supreme Court is unrepresentative.</p>
<p>Focusing the personal characteristics of his colleagues, Justice Scalia wrote:</p>
<blockquote>
<p>Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count).</p>
</blockquote>
<p>One could paraphrase Justice Scalia’s comments in more patently political terms: This is a blue-state court ignoring red-state values. Justice Scalia’s reference to the religious affiliation of his colleagues continues that red-state theme: “Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”</p>
<p>Justice Scalia’s dissent appears aimed to provide fodder for a counterrevolution in the culture wars.</p>
<p>Justice Scalia’s language is unusually personal, and it is notable that only Justice Thomas joined his dissent.</p>
<p>The theme of all four dissenters, however, was clear: the court should leave same-sex marriage to be decided by legislatures.</p>
<p>However, that was exactly the issue on which the Bork confirmation fight turned. In 1987, the people of the United States insisted on a court that recognizes certain fundamental rights as beyond political control.</p>
<p>There is no reason to believe that the public feels differently today.</p><img src="https://counter.theconversation.com/content/43961/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Timothy Holbrook filed an amici curiae brief in support of the petitioners in the Obergefell case on behalf of former NFL players Chris Kluwe, Brendon Ayanbadejo, and Scott Fujita. He is also on the Board of the Stonewall Bar Association of Georgia, an organization for LGBT lawyers. </span></em></p><p class="fine-print"><em><span>Danielle Weatherby and Robert Schapiro do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Same-sex marriage is now a legal right. How the justices arrived at this ruling. the critical role of Anthony Kennedy and the potential impact of the dissenters’ decisions.Danielle Weatherby, Assistant Professor of Law, University of ArkansasRobert Schapiro, Dean and Professor of Law , Emory UniversityTimothy Holbrook, Associate Dean of Faculty, Professor of Law, Emory UniversityLicensed as Creative Commons – attribution, no derivatives.