tag:theconversation.com,2011:/au/topics/obergefell-v-hodges-41182/articlesObergefell v. Hodges – The Conversation2022-06-24T14:48:42Ztag:theconversation.com,2011:article/1846922022-06-24T14:48:42Z2022-06-24T14:48:42ZRoe overturned: What you need to know about the Supreme Court abortion decision<figure><img src="https://images.theconversation.com/files/470591/original/file-20220623-51813-l7w8or.jpg?ixlib=rb-1.1.0&rect=24%2C49%2C8218%2C5438&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A half-century of reproduction rights upended by the Supreme Court.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/nadine-sciler-dances-in-front-of-the-u-s-supreme-court-news-photo/1404304559?adppopup=true">Brandon Bell/Getty Images</a></span></figcaption></figure><p><em>After half a century, Americans’ constitutional right to get an abortion has been overturned by the Supreme Court.</em></p>
<p><em>The ruling in <a href="https://www.supremecourt.gov/opinions/slipopinion/21">Dobbs v. Jackson Women’s Health Organization</a> – handed down on June 24, 2022 – has far-reaching consequences. The Conversation asked <a href="https://www.bu.edu/law/profile/nicole-huberfeld/">Nicole Huberfeld</a> and <a href="https://www.bu.edu/law/profile/linda-c-mcclain/">Linda C. McClain</a>, health law and constitutional law experts at Boston University, to explain what just happened, and what happens next.</em></p>
<hr>
<iframe id="noa-web-audio-player" style="border: none" src="https://embed-player.newsoveraudio.com/v4?key=x84olp&id=https://theconversation.com/roe-overturned-what-you-need-to-know-about-the-supreme-court-abortion-decision-184692&bgColor=F5F5F5&color=D8352A&playColor=D8352A" width="100%" height="110px"></iframe>
<p><em>You can listen to more articles from The Conversation, narrated by Noa, <a href="https://theconversation.com/us/topics/audio-narrated-99682">here</a>.</em></p>
<hr>
<h2>What did the Supreme Court rule?</h2>
<p>The Supreme Court decided by a 6-3 majority to uphold Mississippi’s ban on abortion after 15 weeks of pregnancy. In doing so, the majority opinion overturned two key decisions protecting access to abortion: 1973’s <a href="https://www.oyez.org/cases/1971/70-18">Roe v. Wade</a> and <a href="https://www.oyez.org/cases/1991/91-744">Planned Parenthood v. Casey</a>, decided in 1992.</p>
<p>The <a href="https://www.supremecourt.gov/opinions/slipopinion/21">opinion</a>, written by Justice Samuel Alito, said that the Constitution does not mention abortion. Nor does the Constitution guarantee abortion rights via another right, the right to liberty.</p>
<p>The opinion rejected Roe’s and Casey’s argument that the constitutional right to liberty included an individual’s <a href="https://supreme.findlaw.com/supreme-court-insights/roe-v--wade-case-summary--what-you-need-to-know.html">right to privacy</a> in choosing to have an abortion, in the same way that it protects other decisions concerning intimate sexual conduct, such as contraception and marriage. According to the opinion, abortion is “fundamentally different” because it destroys fetal life.</p>
<p>The court’s narrow approach to the concept of constitutional liberty is at odds with the broader position it took in the earlier Casey ruling, as well as in a landmark marriage equality case, 2015’s <a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>. But the majority said that nothing in their opinion should affect the right of same-sex couples to marry.</p>
<p>Alito’s opinion also rejected the legal principle of “<a href="https://constitution.congress.gov/browse/essay/artIII-S1-5-1/ALDE_00001187/">stare decisis</a>,” or adhering to precedent. Supporters of the right to abortion argue that the Casey and Roe rulings should have been left in place as, in <a href="https://www.oyez.org/cases/1991/91-744">the words of the Casey ruling</a>, reproductive rights allow women to “participate equally in the economic and social life of the Nation.”</p>
<p>Chief Justice John Roberts concurred in the judgment that Mississippi’s law was constitutional, but did not agree with the majority opinion that Roe and Casey should be overruled entirely.</p>
<p>The ruling does not mean that abortion is banned throughout the U.S. Rather, arguments about the legality of abortion will now <a href="https://theconversation.com/change-wont-appear-overnight-in-many-states-if-the-supreme-court-overturns-roe-v-wade-183203">play out in state legislatures</a>, where, Alito noted, women “are not without electoral or political power.” </p>
<p>States will be allowed to regulate or prohibit abortion subject only to what is known as “<a href="https://www.law.cornell.edu/wex/rational_basis_test#:%7E:text=The%20rational%20basis%20test%20is,of%20a%20statute%20or%20ordinance.">rational basis</a>” review – this is a weaker standard than Casey’s “<a href="https://www.npr.org/2022/05/06/1096885897/roe-established-abortion-rights-20-years-later-casey-paved-the-way-for-restricti">undue burden</a>” test. Under Casey’s undue burden test, states were prevented from enacting restrictions that placed substantial obstacles in the path of those seeking abortion. Now, abortion bans will be presumed to be legal as long as there is a “rational basis” for the legislature to believe the law serves legitimate state interests.</p>
<p>In a strenuous dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor faulted the court’s narrow approach to liberty and challenged its disregard both for stare decisis and for the impact of overruling Roe and Casey on the lives of women in the United States. The dissenters said the impact of the decision would be “the curtailment of women’s rights, and of their status as free and equal citizens.” They also expressed deep concern over the ruling’s effect on poor women’s ability to access abortion services in the U.S.</p>
<h2>Where does this decision fit into the history of reproductive rights in the U.S.?</h2>
<p>This is a huge moment. The court’s ruling has done what reproductive rights advocates feared for decades: It has taken away the constitutional right to privacy that protected access to abortion.</p>
<p>This decision was decades in the making. Thirty years ago when Casey was being argued, many legal experts thought the court <a href="https://www.inquirer.com/news/planned-parenthood-v-casey-abortion-ruling-pennsylvania-alito-20220503.html">was poised to overrule Roe</a>. Then, the court had eight justices appointed by Republican presidents, several of whom indicated readiness to overrule in dissenting opinions.</p>
<p>Instead, Republican appointees Anthony Kennedy, Sandra Day O’Connor and David Souter upheld Roe. They revised its framework to allow more state regulation throughout pregnancy and weakened the test for evaluating those laws. Under Roe’s <a href="https://www.law.cornell.edu/wex/strict_scrutiny">“strict scrutiny” test</a>, any restriction on the right to privacy to access an abortion had to be “narrowly tailored” to further a “compelling” state interest. But Casey’s “undue burden” test gave states wider latitude to regulate abortion.</p>
<p>Even before the Casey decision, abortion opponents in Congress had restricted access for poor women and members of the military greatly by <a href="https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/">limiting the use of federal funds to pay for abortion services</a>.</p>
<p>In recent years, states have adopted numerous restrictions on abortion that would not have survived Roe’s tougher “strict scrutiny” test. Even so, many state restrictions have been struck down in federal courts under the undue burden test, including bans on abortions prior to fetal viability and so-called “TRAP” – targeted regulation of abortion provider – laws that made it harder to keep clinics open.</p>
<p>President Donald Trump’s pledge to appoint “pro-life” justices to federal courts – and his appointment of three conservative Supreme Court justices – <a href="https://www.newyorker.com/magazine/2017/04/17/the-conservative-pipeline-to-the-supreme-court">finally made possible</a> the goal of opponents of legal abortion: overruling Roe and Casey.</p>
<h2>What happens next?</h2>
<p>Even before Dobbs, the ability to access abortion was limited by a patchwork of laws across the United States. Republican states have more restrictive laws than Democratic ones, with people living in the Midwest and South subject to the strongest limits.</p>
<p><iframe id="VF3uj" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/VF3uj/4/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<p>Thirteen states have <a href="https://theconversation.com/what-triggers-the-trigger-laws-that-could-ban-abortions-184361">so-called “trigger laws,”</a> which greatly restrict access to abortion. These will soon go into effect now that the Supreme Court has overturned Roe and Casey, requiring only state attorney general certification or other action by a state official.</p>
<p>Nine states <a href="https://www.vice.com/en/article/akvxj8/michigan-judge-halted-abortion-ban">have pre-Roe laws never taken off the books</a> that significantly restrict or ban access to abortion. Altogether, nearly half of states will restrict access to abortion through a variety of measures like banning abortion from six weeks of pregnancy – before many women know they are pregnant – and limiting the reasons abortions may be obtained, such as forbidding abortion in the case of fetal anomalies.</p>
<p>Meanwhile, 16 states and the District of Columbia <a href="https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe">protect access to abortion</a> in a variety of ways, such as state statutes, constitutional amendments or state Supreme Court decisions.</p>
<p>None of the states that limit abortion access currently criminalize the pregnant person’s action. Rather, they threaten health care providers with civil or criminal actions, including loss of their license to practice medicine.</p>
<p>Some states are <a href="https://www.axios.com/2022/04/30/connecticut-bill-safe-haven-abortion-providers-roe">creating “safe havens</a>” where people can travel to access an abortion legally. People have already been traveling to states like Massachusetts from highly restrictive states.</p>
<p>The court’s decision may drive federal action, too. </p>
<p>The House of Representatives passed the <a href="https://www.congress.gov/bill/117th-congress/house-bill/3755/text">Women’s Health Protection Act</a>, which protects health care providers and pregnant people seeking abortion, but Senate Republicans have blocked the bill from coming up for a vote. Congress could also reconsider providing limited Medicaid payment for abortion, but such federal legislation also seems unlikely to succeed.</p>
<p>President Joe Biden could use executive power to instruct federal agencies to review existing regulations to ensure that access to abortion continues to occur in as many places as possible. Congressional Republicans could <a href="https://www.nbcnews.com/politics/congress/roe-likely-fall-senate-republicans-weigh-nationwide-abortion-restricti-rcna27491">test the water on nationwide abortion bans</a>. While such efforts are likely to fail, these efforts could cause confusion for people who are already vulnerable.</p>
<h2>What does this mean for people in America seeking an abortion?</h2>
<p>Unintended pregnancies and abortions are more common among poor women and women of color, both <a href="https://www.thelancet.com/journals/langlo/article/PIIS2214-109X(20)30315-6/fulltext">in the U.S. and around the world</a>.</p>
<p>Research shows that people have abortions whether lawful or not, but in nations where access to abortion is limited or outlawed, women are more likely to <a href="https://www.who.int/news-room/fact-sheets/detail/abortion">suffer negative health outcomes</a>, such as infection, excessive bleeding and uterine perforation. Those who must carry a pregnancy to full term are <a href="https://read.dukeupress.edu/demography/article/58/6/2019/265968/The-Pregnancy-Related-Mortality-Impact-of-a-Total">more likely to suffer pregnancy-related deaths</a>.</p>
<p>The state-by-state access to abortion resulting from this decision means many people will have to travel farther to obtain an abortion. And distance will mean fewer people will get abortions, especially lower-income women – a fact the <a href="https://www.oyez.org/cases/2015/15-274">Supreme Court itself recognized in 2016</a>. </p>
<p>But <a href="https://19thnews.org/2022/02/medication-abortions-majority-2020-guttmacher-institute/">since 2020</a>, medication abortion – a two-pill regimen of mifepristone and misoprostol – has been the most common method of ending pregnancy in the U.S. The coronavirus pandemic accelerated this shift, as it <a href="https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/mifeprex-mifepristone-information">drove the Food and Drug Administration</a> to make medication abortions more available by allowing doctors to prescribe the pills through telemedicine and permitting medication to be mailed without in-person consultation.</p>
<p>Many states that restrict access to abortion also are trying to prevent medication abortion. But stopping telehealth providers from mailing pills will be a challenge. Further, because the FDA approved this regimen, states will be contradicting federal law, setting up conflict that may lead to more litigation.</p>
<p>The Supreme Court’s rolling back a right that has been recognized for 50 years puts the U.S. in the minority of nations, most of which are moving toward liberalization. Nevertheless, even though abortion is <a href="https://www.acog.org/advocacy/abortion-is-essential">seen by many as essential health care</a>, the cultural fight will surely continue.</p>
<p><em>Editor’s note: This article was updated on June 27, 2022, to add more detail on Chief Justice John Robert’s concurrence.</em></p><img src="https://counter.theconversation.com/content/184692/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors 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>By a 6 to 3 majority, the Supreme Court decided to overrule the landmark Roe decision and end almost 50 years of access to abortion being a constitution right.Linda C. McClain, Professor of Law, Boston UniversityNicole Huberfeld, Edward R. Utley Professor of Health Law and Professor of Law, Boston UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1465462020-09-21T14:04:13Z2020-09-21T14:04:13ZGinsburg’s legal victories for women led to landmark anti-discrimination rulings for the LGBTQ community, too<figure><img src="https://images.theconversation.com/files/358924/original/file-20200920-22-1yinx6c.jpg?ixlib=rb-1.1.0&rect=6%2C13%2C4432%2C2950&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Michael Widomski, left, and David Hagedorn at the makeshift memorial for Justice Ginsburg in front of the U.S. Supreme Court on Sept. 20, 2020 in Washington, DC. Ginsburg officiated their wedding in 2013.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/michael-widomski-and-david-hagedorn-embrace-after-leaving-a-news-photo/1228622387?adppopup=true">Samuel Corum/Getty Images</a></span></figcaption></figure><p>The well-deserved tributes to Ruth Bader Ginsburg in the wake of her death justifiably focus on her transformational role in ending centuries of legal discrimination against women. </p>
<p>Starting in 1971, Ginsburg won five cases before the Supreme Court based on the <a href="https://www.law.cornell.edu/constitution/amendmentxiv">equal protection clause of the Constitution’s 14th Amendment</a>. Those cases led the court to end blatant discriminate against women.</p>
<p>She was not the first woman who attempted to use the 14th Amendment to achieve equality. Yet her legal theories, determination and brilliant litigation strategy won, where others before her had failed. </p>
<p>It is less known that Ginsburg’s victories on behalf of women also provided a roadmap and legal precedent for ending legal discrimination against the LGBTQ community.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Supreme Court Justice Ruth Bader Ginsburg sitting in her chambers in 2002." src="https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358925/original/file-20200920-20-15ll5rs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Supreme Court Justice Ruth Bader Ginsburg in her chambers.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-justice-ruth-bader-ginsburg-sits-in-her-news-photo/2396958?adppopup=true">David Hume Kennerly/Getty Images</a></span>
</figcaption>
</figure>
<h2>Unequal protection</h2>
<p>The <a href="https://constitutioncenter.org/interactive-constitution/amendment/amendment-xiv">14th Amendment was enacted after the Civil War</a>, in 1868, to give formerly enslaved Black people and their progeny equal protection under the law. It states, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; … nor deny to any person within its jurisdiction the equal protection of the laws.” </p>
<p>Women’s rights advocates immediately tried to use the 14th Amendment’s broad language to gain rights. At the time that the 14th Amendment was enacted, women could not own property or vote and were considered their husbands’ property. </p>
<p>They focused on the 14th Amendment’s broadly worded “privileges and immunities” clause as a way to gain some form of legal protection. Because that clause had no fixed meaning, it could be interpreted, they believed, in a way that advanced women’s rights.</p>
<p>So, in 1872, <a href="https://www.britannica.com/event/Bradwell-v-State-of-Illinois">Myra Bradwell sued the state of Illinois</a> after being denied a license to practice law because she was a woman. Ruling against her, the Illinois Supreme Court held that Bradwell did not legally exist separately from her husband, and that the <a href="https://www.law.cornell.edu/supremecourt/text/83/130">privilege and immunities clause did not require the state</a> to allow her or any other woman to pursue a professional career.</p>
<p>Similarly, in 1872, activists, including Susan B. Anthony, invoked the 14th Amendment to demand the right to vote. Anthony and several others were arrested after they voted in the November election. At <a href="http://law2.umkc.edu/faculty/projects/ftrials/anthony/sbaaccount.html">Anthony’s trial</a>, the judge said “The 14th Amendment gives no right to a woman to vote, and the voting by Miss Anthony was in violation of the law.”</p>
<p>One woman in Missouri, Virginia Minor, sued when she was refused the right to even register to vote. She argued <a href="https://www.law.cornell.edu/supremecourt/text/88/162">before the U.S. Supreme Court</a> – through her lawyer husband – that the 14th Amendment guaranteed her the right to vote as a “privilege and immunity.” </p>
<p>She lost. </p>
<h2>Credit where it’s due</h2>
<p>A century later, Ruth Bader Ginsburg’s work transformed American jurisprudence for women. To do this, she also invoked the 14th Amendment. But this time, she focused on the amendment’s Equal Protection Clause, which was enacted to protect newly-freed enslaved people. </p>
<p>Ginsburg did not devise this strategy alone. She was inspired by the writings of the African American lawyer and civil rights activist, <a href="https://www.paulimurraycenter.com/who-is-pauli">Anna Pauline “Pauli” Murray</a>. Murray, <a href="https://now.org/about/history/finding-pauli-murray/">a co-founder of the National Organization for Women</a>, argued that the 14th Amendment’s equal protection clause could be used to guarantee gender equality. </p>
<figure class="align-center ">
<img alt="Joseph and Lt. Sharron Frontiero" src="https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=766&fit=crop&dpr=1 600w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=766&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=766&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=963&fit=crop&dpr=1 754w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=963&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/359052/original/file-20200921-20-f9h8yv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=963&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Joseph and Lt. Sharron Frontiero. Ginsburg successfully brought a 1973 case on behalf of Joseph, who was denied military benefits on the theory that women could not be primary economic providers for their families.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/manchester-massachusetts-air-force-lt-sharon-frontiero-news-photo/515398514?adppopup=true">Bettmann/Getty</a></span>
</figcaption>
</figure>
<p>Murray’s 1950s book, “<a href="https://ugapress.org/book/9780820350639/states-laws-on-race-and-color/">States’ Laws on Race and Color</a>,” was considered <a href="https://whyy.org/articles/the-invisible-women-of-the-civil-rights-movement/">the bible of the civil rights movement</a>. Ginsburg was so influenced by Murray’s work that she listed Murray as a co-author of her first U.S. Supreme Court gender justice brief, <a href="https://www.law.cornell.edu/supremecourt/text/404/71">Reed v. Reed, in 1971</a>. </p>
<p>The legal strategy that Ginsburg used, however, was her own.</p>
<p>In 1971, the notion of women’s equality was absurd to most people. Ginsburg, who was at the top her her class at Harvard and Columbia law schools, <a href="https://time.com/5660188/ruth-bader-ginsburg-dies/">could not get a job after she graduated</a>. </p>
<p>Predicting that a Supreme Court composed of older white men would likely dismiss demands by women that they should be treated equally, she realized gender stereotypes could be shattered only if white men argued that women should be treated equally under the law. </p>
<p>For example, in the 1973 case, <a href="https://www.law.cornell.edu/supremecourt/text/411/677">Frontiero v. Richardson</a>, she successfully sued on behalf of the husband of a female Air Force officer, who was refused military benefits on the theory that women could not be primary economic providers for their families.</p>
<p>Similarly, in <a href="https://supreme.justia.com/cases/federal/us/420/636/">Weinberger v. Weisenfeld</a> in 1975, she sued on behalf of a man who had been denied Social Security survivor benefits. That agency automatically assumed that men would not need survivor benefits because they earned more than their wives. </p>
<p>This was a brilliant strategy. Based on the five lawsuits that Ginsburg won, the Supreme Court articulated for the first time that the 14th Amendment was not only the vehicle for racial equality – it could also be invoked to achieve gender-based equality. </p>
<h2>Another 30 years</h2>
<p>Even after Ginsburg’s victories in the 1970s, women still did not have equal rights under the law. The equal protection women enjoyed, according to the Supreme Court, wasn’t as strong as the protection that the Constitution afforded against racial discrimination.</p>
<p>It wasn’t until over 30 years later, in 1996, when she was a sitting justice on the U.S. Supreme Court, that Ginsburg fully equalized the playing field for women. </p>
<p>In the case <a href="https://www.oyez.org/cases/1995/94-1941">United States v. Virginia Military Academy</a>, Justice Ginsburg wrote for the court’s majority that “exacting scrutiny” must be applied to any law that treats women differently than men.</p>
<p>She wrote that any law that “denies to women, simply because they are women, full citizenship stature - equal opportunity to aspire, achieve, participate in and contribute to society” violated the equal protection Clause.</p>
<h2>The RBG playbook</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Justice Neil Gorsuch." src="https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=860&fit=crop&dpr=1 600w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=860&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=860&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1081&fit=crop&dpr=1 754w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1081&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/358926/original/file-20200920-16-j46574.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1081&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Justice Neil Gorsuch wrote the majority opinion in a 2020 case that expanded employment discrimination protection to LGBTQ workers.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/supreme-court-associate-justice-neil-gorsuch-poses-for-a-news-photo/691165204?adppopup=true">Alex Wong/Getty Images</a></span>
</figcaption>
</figure>
<p>Once it was cemented into law that the equal protection clause could overturn non-race-based discriminatory laws, other marginalized groups began using the Equal Protection Clause to gain equal rights, including the LGBTQ community. </p>
<p>Their first victory was a 1996 ruling, Romer v. Evans, overturning laws around the country <a href="https://www.law.cornell.edu/supct/html/94-1039.ZO.html">that made gay sex a crime</a>.</p>
<p>A series of similar victories based on the equal protection clause followed, all written by Justice Anthony Kennedy, a conservative Republican appointee. Those decisions culminated in the 2015 landmark ruling <a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>, where the Supreme Court ruled in favor of marriage equality, expanding the application of the 14th Amendment’s equal protection clause to cover LGBTQ persons, by requiring all states to recognize same-sex marriages that were performed in other states.</p>
<p><a href="https://www.oyez.org/cases/2014/14-556">Justice Kennedy’s opinion</a>, which extols the virtues of marriage, states that “It would misunderstand these men and women to say they disrespect the idea of marriage… They ask for equal dignity in the eyes of the law. The Constitution grants that right.”</p>
<p>In 2020, the <a href="https://www.oyez.org/cases/2019/17-1618">Bostock v. Clayton County</a> decision, which banned employment discrimination against LGBTQ workers, used a similar analysis. Even though it was based on Title VII of the 1964 Civil Rights Act, <a href="https://law.rutgers.edu/directory/view/venetis">as a legal scholar</a>, I believe the language used by Trump appointee Justice Neil Gorsuch, who wrote the court’s majority opinion, comes straight out of the RBG playbook.</p>
<p><a href="https://www.law.cornell.edu/supremecourt/text/17-1618">Gorsuch wrote</a>: “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. … But the limits of the drafters’ imagination supply no reason to ignore the law’s demands … Only the written word is the law, and all persons are entitled to its benefit.” </p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>These advances were only possible because Ruth Bader Ginsburg paved the way for applying the equal protection clause beyond its original purpose, to promote equality for women.</p>
<p>To echo Justice Gorsuch, that is something that the drafters of the 14th Amendment certainly never considered, and almost certainly never would have endorsed.</p><img src="https://counter.theconversation.com/content/146546/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Penny Venetis 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>Ruth Bader Ginsburg’s death sparked many tributes to her work ending sex discrimination against women. That work also paved the way for successes in the fight for equal rights for the LGBTQ community.Penny Venetis, Clinical Professor of Law, Director of the International Human Rights Clinic, Rutgers University - NewarkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1408782020-06-16T22:03:48Z2020-06-16T22:03:48ZWhat the Supreme Court’s decision on LGBT employment discrimination will mean for transgender Americans<figure><img src="https://images.theconversation.com/files/342276/original/file-20200616-23235-1qwpzad.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Transgender activist Aimee Stephens sat outside the Supreme Court as the court held oral arguments dealing with workplace discrimination.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/transgender-activist-aimee-stephens-sits-in-her-wheelchair-news-photo/1174525050?adppopup=true">Saul Loeb/AFP via Getty Images</a></span></figcaption></figure><p>In a landmark decision, <a href="https://www.oyez.org/cases/2019/17-1618">the United States Supreme Court has ruled</a> that gay men, lesbian women, bisexual individuals and transgender people – individuals whose sex assigned at birth does not match their current innate sense of being male, female, both or neither – cannot be discriminated against in the workplace simply because of their sexual orientation or gender identity.</p>
<p>The decision involved three separate but related cases: two involving men who were fired for being gay and one involving a transgender woman, Aimee Stephens, who was fired from <a href="https://www.oyez.org/cases/2019/18-107">her job at a funeral home after her transition</a>. The court’s ruling in favor of Stephens affects the estimated <a href="https://williamsinstitute.law.ucla.edu/publications/trans-adults-united-states/">1.4 million</a> adults in the United States who identify as transgender. </p>
<p>Stephens passed away on May 12, 2020, just one month before the Supreme Court ruled in her favor.</p>
<p>A <a href="http://dx.doi.org/10.1177/0019793920902776">study we published on Feb. 11, 2020</a> suggests that nondiscrimination protections for transgender people are likely to be especially meaningful. As scholars of <a href="https://scholar.google.com/citations?user=80vVFBUAAAAJ&hl=en">economics</a>, <a href="https://scholar.google.com/citations?user=xYqTZcsAAAAJ&hl=en">health</a> and LGBT populations, we wanted to find out about how transgender people fare economically. We learned that on nearly all measures of economic and social well-being, they do much worse than the general population.</p>
<h2>Little is known about transgender people</h2>
<p>A growing body of research on sexual minorities has steadily advanced over the past 25 years. However, when we first started working on this research project three years ago, we found little published work on the economic lives of transgender people.</p>
<p>Most research that did exist came only from studies of one or two progressive-leaning states, such as <a href="https://williamsinstitute.law.ucla.edu/demographics/health-trans-adults-ca/">California</a> or <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3490554/pdf/AJPH.2011.300315.pdf">Massachusetts</a>, or used “convenience” or “snowball” <a href="https://transequality.org/issues/us-trans-survey">samples</a> of transgender people where participants are recruited through social networks.</p>
<p>These types of data are useful, but they might not accurately reflect the general transgender population in the United States. </p>
<h2>What we found</h2>
<p>This is where our study came in. </p>
<p>We used data from an annual telephone survey of over 400,000 individuals in the United States that asks people about their employment, income, health insurance coverage and overall health. It’s called the <a href="https://www.cdc.gov/brfss/index.html">Centers for Disease Control and Prevention’s Behavioral Risk Factor Surveillance Survey</a>.</p>
<p>Starting in 2014, this survey gave states the option to ask respondents their sexual orientation and gender identity. When asked “Are you transgender?” over 2,100 adults responded “yes.”</p>
<p>Although this is only a fraction of 1% of the total survey sample, it is a much larger sample of transgender people than has been used in other survey-based studies. And, importantly, it allowed us to examine transgender individuals from states as diverse as Pennsylvania, Oklahoma, Idaho and Florida.</p>
<p>The most consistent pattern we found is that individuals who described themselves as transgender did much worse in aspects of their lives that affect their economic well-being – like educational attainment, employment and poverty status – than otherwise comparable individuals who did not identify as transgender.</p>
<p>This was especially true for employment. Transgender people were 11 percentage points less likely to be working compared to nontransgender, or cisgender, people.</p>
<p>We found that this effect was driven by two forces: Transgender people were more likely to be unemployed – that is, they would like to work but are not currently working – and much more likely to report that they are unable to work.</p>
<p>The data don’t tell us why transgender people may be unable to work. It may be due to a disability, poor health, lack of transportation or other structural barriers. It’s also possible that transgender people have been turned away so many times by potential employers – possibly due to discrimination which is now illegal throughout the United States – that they are what economists aptly refer to as <a href="https://theconversation.com/forget-lower-jobs-growth-the-number-of-people-whove-stopped-looking-for-work-is-much-more-worrisome-118445">“discouraged,”</a> and thus they report that they are “unable to (find) work.”</p>
<p>Our results also showed that transgender people had much lower rates of college education than nontransgender people. While 28% of nontransgender people in the survey said they had a college education, the same was true for only 14% of transgender respondents.</p>
<p>Even after accounting for lower college education rates, we found that transgender people had higher rates of poverty and worse health than otherwise comparable individuals who did not identify as transgender.</p>
<p><iframe id="moU0M" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/moU0M/3/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>Rapidly changing policy</h2>
<p>Of course, there are limits to the Supreme Court decision, and LGBT rights advocates have already stressed the need to adopt a federal <a href="https://www.congress.gov/bill/116th-congress/house-bill/5/text">Equality Act</a> which would extend nondiscrimination protections to housing, public accommodations, education and health care - all areas of life that are currently not explicitly protected by federal civil rights law for LGBT people. The need for these protections is highlighted by the timing of the Supreme Court decision: Just three days prior to the ruling, the Health and Human Services Office for Civil Rights <a href="https://www.hhs.gov/about/news/2020/06/12/hhs-finalizes-rule-section-1557-protecting-civil-rights-healthcare.html">rolled back nondiscrimination protections for transgender people in health care</a> that were instituted by the prior administration.</p>
<p>It is too early to tell how nondiscrimination protections for transgender people in these other important areas of life will play out in the various branches of government, but the recent Supreme Court ruling outlawing LGBT discrimination in employment is likely to improve the economic situation facing transgender Americans, which our research shows is already very precarious. </p>
<p><em>This is an updated version of <a href="https://theconversation.com/transgender-americans-are-more-likely-to-be-unemployed-and-poor-127585">an article</a> originally published on Feb. 13, 2020.</em></p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>.]</p><img src="https://counter.theconversation.com/content/140878/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christopher Carpenter receives funding for LGBT related research from the National Institutes of Health and the Robert Wood Johnson Foundation. The views expressed here are his own.</span></em></p><p class="fine-print"><em><span>Gilbert Gonzales receives funding for LGBT related research from the National Institutes of Health and the Robert Wood Johnson Foundation. The views expressed here are his own.</span></em></p>In a national survey, transgender individuals had worse employment outcomes, lower incomes and higher rates of poverty than cisgender people.Christopher Carpenter, E. Bronson Ingram Professor of Economics and Director of the Vanderbilt LGBT Policy Lab, Vanderbilt UniversityGilbert Gonzales, Assistant Professor of Medicine, Health and Society, Vanderbilt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/812392018-07-03T10:34:08Z2018-07-03T10:34:08ZJustice Kennedy’s LGBTQ legacy may be short-lived<figure><img src="https://images.theconversation.com/files/225836/original/file-20180703-116123-ycvskx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In this April 28, 2015 file photo, demonstrators stand in front of a rainbow flag of the Supreme Court in Washington as the Supreme Court was set to hear historic arguments in cases that could make same-sex marriage. (AP Photo/Jose Luis Magana, File)</span> <span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/House-Gay-Rights/39d5c27b5c9d451ea2ab4386a8a4e3e6/1/0">AP Photo/Jose Luis Magana</a></span></figcaption></figure><p>Kennedy’s departure from the Supreme Court has, understandably, prompted widespread concern about Roe v. Wade and abortion rights. Less salient but equally at risk is the court’s progress on LGBTQ rights. </p>
<p>While he was on the court, Kennedy was the decisive vote for the court’s 5-4 pro-gay rights rulings. He wrote each of the court’s landmark gay rights decisions, outlawing bans on <a href="https://www.law.cornell.edu/supct/html/02-102.ZS.html">same-sex sexual conduct</a>, <a href="https://www.law.cornell.edu/supct/html/94-1039.ZO.html">LGBTQ political advocacy</a> and same-sex marriage at the <a href="https://www.law.cornell.edu/supremecourt/text/14-556">state</a> and <a href="https://www.law.cornell.edu/supct/cert/12-307">federal</a> level. Kennedy is the voice of the court’s gay rights doctrine. </p>
<p>Having tracked <a href="https://washingtonmonthly.com/magazine/mayjune-2013/under-the-gaydar">judicial progress</a> on <a href="https://washingtonmonthly.com/2016/03/15/adoptive-gay-parents-win-another-supreme-court-victory-mostly/">gay rights</a> over the last decade, <a href="https://scholar.google.com/citations?hl=en&view_op=list_works&gmla=AJsN-F7kEX2VhC5eHPTq5G1o8eZ9vY8TpHis0_ZZfWNs5O7x_L0-oV2A4uwYZ9mrRFTGxENf4p7zx9GlwhMxAZ7IF6mFi1w7go_-wW8_uACYqVxzM8qgWYwzTWWs1cwocU9KLdIfh0iG&user=u07SE7gAAAAJ&gmla=AJsN-F7pAyUL6j3RYx9Y_L-6IUJWbRusYuMCJtNCJ_INd6HpTYdy4s2m2_K1vZMDkVTl0xYtlaBhCMRs5s3BQW2dV2GsY_2LvtVUlIvPAl0TXGBe4h03m7E&sciund=9514752601823854059">I’d</a> argue that Kennedy’s retirement puts this doctrine, and the movement, <a href="https://washingtonmonthly.com/2017/01/31/how-trump-will-roll-back-obamas-progress-on-gay-rights/">in jeopardy</a>. Although his rulings on same-sex relationships have ushered in new freedoms for lesbian and gay couples, they rest on fragile constitutional arguments. With Kennedy’s retirement, there is greater opportunity for anti-gay activists to dismantle the court’s tenuous legal framework supporting gay rights.</p>
<h2>An unlikely advocate</h2>
<p>Prior to his ascent to the court, few could have predicted that Justice Kennedy would spearhead a judicial revolution for LGBTQ rights. Kennedy joined the court in 1988 as a Reagan appointee whose only decision on gay rights, written during his tenure on the 9th Circuit Court of Appeals, <a href="https://web.stanford.edu/%7Emrosenfe/Beller_v_Middendorf_9th_circ_1980.pdf">narrowly upheld military regulations prohibiting “homosexual conduct</a>.” </p>
<p>In 1996, less than a decade after his appointment to the court, Kennedy would author his first of multiple Supreme Court decisions protecting the rights of lesbians and gay men. </p>
<p>The 1996 case, <a href="https://www.law.cornell.edu/supct/html/94-1039.ZO.html">Romer v. Evans</a>, involved a constitutional amendment enacted by Colorado voters in 1992. The amendment barred any state or local public official from including sexual orientation in local nondiscrimination laws. If upheld, the amendment would have rendered any discrimination against gays or lesbians in housing, employment and public accommodations both legal and untouchable. The state argued that they were protecting the “liberties of landlords or employers who have personal or religious objections to homosexuality” and were doing “no more than deny[ing] homosexuals special rights.” </p>
<p>Kennedy authored the 6-3 decision to overturn the amendment, arguing that the state’s reasoning failed to meet even basic legal requirements. The policy, Kennedy stated, was “born of animosity toward the class of persons affected” and rendered members of the gay community “unequal to everyone else.” </p>
<p>For the gay community, Romer marked what New York Times reporter <a href="https://archive.nytimes.com/www.nytimes.com/specials/issues/rights/rigdepth/0521scotus-gays.html">Linda Greenhouse</a> described as a “historic shift in the Court’s response to anti-gay discrimination,” stopping other states from following suit. It also provided “a strong statement” against anti-gay discrimination, because it was delivered by “a conservative member of a basically conservative Court.” Yet, in overturning the Colorado amendment, Kennedy rested his decision on the easiest of judicial standards – arguing that the state failed to provide any rational reason for the ban.</p>
<p>The court could have argued instead that members of the LGBTQ community have historically been excluded from a wide range of state protections – and have far more frequently been the targets of hostile policy actions. The court treats policies that target historically excluded communities as “suspect” and makes it more difficult for policies to prevail.</p>
<p>Policy actors who target historically excluded groups need to come up with a significant reason for creating the policy. They must also prove that there is no other way to achieve their policy goal. </p>
<p>More importantly, once a group is treated as historically excluded in court precedent any policy that targets the group will be evaluated with this more challenging standard of judicial scrutiny.</p>
<p>While Kennedy’s rulings have struck down important limitations on lesbian and gay rights, he has resisted treating the LGBTQ community as historically excluded – leaving them with a far less certain set of legal protections.</p>
<h2>Relationships and marriage</h2>
<p>In 2003, Kennedy led the court’s majority in <a href="https://www.law.cornell.edu/supct/html/02-102.ZS.html">Lawrence v. Texas</a>, overturning a Texas statute that criminalized same-sex sexual intimacy. In doing so, the court also overturned it’s prior 1986 decision in <a href="https://www.law.cornell.edu/supremecourt/text/478/186">Bowers v. Hardwick</a>, which upheld similar legislation in Georgia. Kennedy admonished the Bowers court for its “failure to appreciate the extent of the liberty at stake” and described bans on same-sex sexual conduct as “an attempt to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.” </p>
<p>Bans on same-sex sexual intimacy licensed private citizens to treat lesbians and gay men as criminal. Free from the presumption of criminality, lesbians and gay men now had legal leverage to live openly and to fight for full equality.</p>
<p>Although the decision provided a legal mechanism for decriminalizing same-sex couples, Kennedy again resisted adopting the “historically excluded” framework. Instead, Kennedy argued that same-sex couples were being deprived, in this one instance, of important constitutional liberties. </p>
<p>Kennedy’s decisions on marriage equality provided similarly important but limited victories.</p>
<p>On June 26, 2013, Kennedy dismantled one of two barriers to marriage equality – a federal ban on same-sex marriage that prevented legally married same-sex couples from receiving the same federal benefits and protections offered to heterosexual married couples. In <a href="https://www.law.cornell.edu/supct/cert/12-307">U.S. v. Windsor</a>, Kennedy struck down the federal ban arguing that its only purpose was to “harm a politically unpopular group.” </p>
<p>State and federal judges used Windsor to overturn similar bans in more than 30 states. </p>
<p>Two years later, in <a href="https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">Obergefell v. Hodges</a>, Kennedy led the court in overturning the remaining state-level bans. Kennedy called specific attention to the ways in which bans on same sex marriage “harm and humiliate the children of same-sex couples” and impose on them the “significant material costs of being raised by unmarried parents.”</p>
<p>Windsor and Obergefell changed the lives of same-sex couples and their children. Children now have the security of being legally tied to both of their parents. Spouses can access critical health care or insurance benefits. And, in many communities, same-sex headed households have become more common and less vilified.</p>
<p>Yet, again, Kennedy sidestepped the question of historical exclusion, potentially limiting the reach of the decisions and weakening their capacity to withstand coming legal challenges.</p>
<h2>Legal challenges remain</h2>
<p>Kennedy’s gay rights doctrine is relatively new and still highly contested. </p>
<p>For instance, <a href="https://www.texastribune.org/2018/06/26/fifteen-years-after-landmark-gay-rights-win-same-sex-couples-face-anot/">Texas’s ban on same-sex sexual conduct</a> is still on the books, despite Lawrence. And, the <a href="https://www.texasobserver.org/texas-gay-marriage-benefits-scotus-supreme-court/">Texas Supreme Court</a> is still questioning whether Obergefell requires the state to provide benefits to married same-sex couples. </p>
<p>Wedding service providers are refusing to serve same-sex couples and are making headway in court. Kennedy recently <a href="https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf">upheld the rights of a Colorado baker</a> to refuse to bake a wedding cake for a same-sex couple. He argued that compelling the baker “to exercise his artistic talents to express a message” that violated his religious beliefs could present a First Amendment problem. In the hands of a more conservative future court, that precedent could provide ammunition for the increasing <a href="https://www.hrw.org/report/2018/02/19/all-we-want-equality/religious-exemptions-and-discrimination-against-lgbt-people">number of states</a> that are passing legislation allowing small businesses to refuse to work with same-sex couples on religious grounds.</p>
<p>Perhaps more importantly, there are many challenges to equality untouched by Kennedy’s rulings. This reality is a byproduct of his resistance to treating the LGBTQ community as historically excluded for the purposes of court doctrine. Discrimination against LGBTQ individuals in <a href="https://www.brookings.edu/blog/brown-center-chalkboard/2018/04/18/lgbtq-students-face-discrimination-while-education-department-walks-back-oversight/">education</a>, <a href="http://outandequal.org/2017-workplace-equality-fact-sheet/">employment</a>, housing and public accommodations is still legal in more than <a href="http://www.lgbtmap.org/equality-maps/non_discrimination_laws">20 states</a>. And <a href="http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx">recent legislative attacks</a> targeting transgender individuals suggest that anti-LGBTQ activity is still prevalent in many communities. </p>
<p>There is no doubt that Justice Kennedy’s legacy has brought about an era of unprecedented – even unimagined – rights for gays and lesbians. The question is will his legacy persist and grow without him on the bench?</p><img src="https://counter.theconversation.com/content/81239/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alison Gash 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>A legal scholar explains why Kennedy’s opinions on same-sex relationship rest on fragile constitutional grounds.Alison Gash, Associate Professor of Political Science, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/803652017-07-26T01:50:47Z2017-07-26T01:50:47ZA philosopher argues why no one has the right to refuse services to LGBT people<p>Ever since the Supreme Court ruled in <a href="https://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html?mcubz=1&_r=0">Obergefell v. Hodges</a> that gay people have the right to marry, those upset by this ruling have shifted their strategy from denying the right to limiting its enforcement.</p>
<p>Even if gay people have a right to marry, they argue, people also have the liberty to practice their religion as they wish. Accordingly, they claim, they cannot be forced to “<a href="http://www.huffingtonpost.com/bob-cesca/erick-erickson-gayfriendl_b_4861349.html">aid or abet</a>” those seeking to marry partners of the same sex.</p>
<p>This argument obviously has some persuasive power, for statutes that claim to protect religious liberty in this sense have recently been proposed <a href="https://www.theatlantic.com/politics/archive/2016/01/lgbt-discrimination-protection-states-religion/422730/">in 26 states.</a> Some have even been enacted. And just a few weeks ago, the Supreme Court agreed to hear a case (<a href="https://www.washingtonpost.com/politics/courts_law/supreme-court-to-take-case-on-baker-who-refused-to-sell-wedding-cake-to-gay-couple/2017/06/26/0c2f8606-0cde-11e7-9d5a-a83e627dc120_story.html?utm_term=.fa2bf6c0cfb5">Masterpiece Cakeshop v. Colorado Civil Rights Commission</a>) that brings this supposed conflict between marriage equality and religious liberty to the fore. </p>
<p>In my view, however, characterizing what is going on here as presenting a conflict between marriage equality and religious liberty is incorrect. </p>
<p>To see why, it will be helpful to get familiar with some of the terms that political philosophers like myself use when we talk about liberties and rights. </p>
<h2>Liberties vs. rights</h2>
<p>Liberties give us the freedom to act, or to refuse to act, or even just to think in certain ways. But liberties do not always entail the freedom to do these things without any interference. For example, even though everyone has a liberty to open a lawful business, others can still interfere with that business by engaging in lawful competition.</p>
<p>Rights, in contrast, are stronger. They not only give us these freedoms, but they also protect these freedoms from any kind of interference. <a href="https://global.oup.com/academic/product/a-debate-over-rights-9780198298991?cc=us&lang=en&#">But not all liberties are protected by rights</a>. When people talk about religious liberty, it is accordingly important to understand what kind of liberty they might mean. For it might not be a liberty that is protected from the kind of interference that is at issue in these cases.</p>
<p>Indeed, there are three very different kinds of liberty that might be at issue here.</p>
<h2>Different kinds of liberty</h2>
<p>First, there is “<a href="http://www.oxfordscholarship.com/view/10.1093/019924989X.001.0001/acprof-9780199249893-chapter-4">negative liberty</a>.” This kind of liberty focuses on whether people are somehow restrained by other human agents (including the government) from doing what they would otherwise have the capacity to do. Laws that prohibit people from defrauding others, or from selling impure foods or unreasonably dangerous drugs or products, and yes, from discriminating against people on the basis of their race, gender, or sexual orientation, all interfere with liberty in this way. </p>
<p>Second, there is “<a href="https://books.google.com/books?id=Eb0VcFtBR94C&printsec=frontcover&dq=charles+taylor+what%27s+wrong+with+negative+liberty&hl=en&sa=X&ved=0ahUKEwj-2ubIv__UAhUB_mMKHYSkDEoQ6AEINTAC#v=onepage&q=charles%20taylor%20what's%20wrong%20with%20negative%20liberty&f=false">positive liberty</a>.” This is the ability to realize one’s true self, to live the kind of life one would voluntarily choose if one was fully informed and free to choose whatever form of life one might wish. This could be a religious life, a hedonistic life, or something else entirely. </p>
<p>Everyone embraces some conception of positive liberty. What is important here, however, is not the plan of life that one embraces, but that it is freely chosen and not imposed by outside forces. </p>
<p>Finally, there is “<a href="https://books.google.com/books?id=IWNQb4h-HmYC&printsec=frontcover&dq=liberty+as+non-domination&hl=en&sa=X&ved=0ahUKEwjXhtWew__UAhUS8WMKHe_xBkIQ6AEIKDAA#v=onepage&q=liberty%20as%20non-domination&f=false">republican liberty</a>,” or freedom from the arbitrary exercise of power by another. Being fired from your job without cause, for example, would be an arbitrary exercise of power and therefore an infringement of republican liberty. </p>
<h2>More on negative and positive liberty</h2>
<p>Although prohibiting people from refusing service to LGBT people is an infringement of negative liberty, this does not mean that such infringement is morally objectionable. </p>
<p>This is because the concept of negative liberty is not a theory about what we can or cannot do. It merely tells us that if someone interferes with our capacity to do something, this interference has to be <a href="http://www.oxfordscholarship.com/view/10.1093/019924989X.001.0001/acprof-9780199249893-chapter-4">justified</a> in some manner. It does not tell us what might count as a justification or how strong this justification needs to be. </p>
<p>It is obvious, however, that a great deal of interference with negative liberty can be justified. Indeed, social order would be impossible if governments did not massively interfere with everyone’s negative liberty in many ways every day. All government regulation does this, including regulations that prevent murder and theft and breach of contract, which everyone supports. </p>
<p>The question, then, is whether rules that prohibit discrimination against LGBT people constitute a justified interference with the negative liberty of business owners, like many other kinds of government regulation do, or an unjustified one?</p>
<p>To determine this, <a href="http://www.palgrave.com/br/book/9781137550026">one has to refer to some other theory</a> – a theory that (unlike negative liberty) does embrace moral ends and gives guidance as to what priority competing ends might have. </p>
<p>A conception of positive liberty would be such a theory. After all, such conceptions are designed to tell us everything we must do to lead a fully realized life. </p>
<p>But to do this, such conceptions need to contain very detailed instructions on how we each should live. Devising these detailed instructions requires that an enormous number of possible life choices be considered and made. And this means that there are an enormous number of possible conceptions of positive liberty one could ultimately embrace. As a result, almost everyone embraces a conception that differs in some sense from the conception embraced by anyone else, even by people of the same religion. </p>
<p>These differences are often substantial. Many conceptions of positive liberty are therefore utterly incompatible. Under some conceptions, for example, one should be able to marry whomever one loves, even someone of the same sex. Under other conceptions, in contrast, marriage is something that can only take place between a man and a woman. </p>
<h2>Protecting religious liberty</h2>
<p>So when people claim that aiding and abetting gay marriage would infringe on their religious liberty, in most cases what they must mean is that this would violate their particular conception of positive liberty – their particular conception of how we each should live, a conception that is based on their religious views.</p>
<p>The problem is that enforcing one particular view of positive liberty is inconsistent with the role of government in a free society. </p>
<p>Indeed, one of the central tenets of a free society is that government should remain <a href="http://www.rationalites-contemporaines.paris-sorbonne.fr/IMG/pdf/Kymlicka.pdf">neutral</a> between reasonable but inconsistent competing conceptions of the good, comprehensive moral doctrines, and plans of life. But conceptions of positive liberty – especially conceptions based on particular religious views – are very controversial. </p>
<p>Enforcing one would therefore violate this commitment to neutrality. It is totalitarian governments that do this, not liberal democracies. Indeed, refusing to enforce any one conception of positive liberty is what actually gives us <a href="http://www.cambridge.org/catalogue/catalogue.asp?isbn=9781107440913">religious liberty</a>. Otherwise all but one set of religious beliefs would have to be suppressed. </p>
<h2>Protecting republican liberty</h2>
<p>I hope we can all see now why protecting positive liberty does not give us a reason to allow the refusal of service to LGBT people. If we were to do this, everyone’s religious liberty would be undermined, not advanced. But I still haven’t identified a reason for thinking that the interference with negative liberty that such laws entail is justified. </p>
<p>That justification, however, can be found in republican liberty. </p>
<p>Remember, republican liberty protects people against arbitrary treatment. Distinctions must be based on principles that are possible to defend. But how could we decide what was “aiding and abetting” gay marriage and what was not?</p>
<p>The usual example is that of a baker who does not want to provide the couple a wedding cake, as in the case the Supreme Court has just agreed to accept. But then could all kinds of businesses refuse service to gay people who are getting married? Could they refuse service to everyone involved, and not just to the couple themselves? Could they refuse service to gay people no matter what the occasion on the grounds that facilitating gay relationships would inevitably lead some gay people to get married? </p>
<p>It seems that there is no way to do any line drawing here without relying on what would be arbitrary distinctions. </p>
<p>But more importantly, the refusal of service to gay couples is itself an arbitrary act. It is an act of <a href="https://global.oup.com/academic/product/a-general-theory-of-domination-and-justice-9780199672998?cc=us&lang=en&">domination</a> – just like refusal of service to black or Jewish people or <a href="https://www.nytimes.com/2017/07/06/us/the-faces-of-intermarriage-50-years-after-loving-v-virginia.html?mcubz=1">inter-racial couples</a>. </p>
<p>Indeed, for those who have any doubt about this, simply imagine what it was like to experience life as a black person under Jim Crow. One cannot imagine being subject to these kinds of restrictions and still thinking of oneself as truly free. The protection against arbitrary treatment is accordingly central to almost every possible conception of the good and plan of life a freedom loving person might select. </p>
<p>What this means is that unlike enforcing some controversial conception of positive liberty, enforcing republican liberty is not inconsistent with the idea that government should be neutral between controversial conceptions of the good. </p>
<p>And this, I hope we can all agree, means that any interference with the negative liberty of those who would refuse service to LGBT people is justified, for this protects the republican liberty of LGBT people and does not infringe the republican liberty of anyone else.</p><img src="https://counter.theconversation.com/content/80365/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark R. Reiff 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>There are three very different kinds of liberty. When people talk about religious liberty, what kind of liberty they might mean?Mark R. Reiff, Affiliated Researcher in Legal and Political Philosophy, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.