U.S. v. Windsor Must Be This Generation’s Brown v. Board of Education, Not Its Roe v. Wade

Edie Windsor, photographed on Nov. 14, 2013, in New York City.

Photo by Cindy Ord/Getty Images for OUT100 presented by Buick

Recent judicial decisions have made one thing very clear: Gay and lesbian couples will soon be able to marry in all 50 states. Even Maggie Gallagher, one of the staunchest opponents of marriage equality, has admitted defeat—sort of. As she’s said, the only remaining question is whether the Supreme Court’s 2013 decision in United States v. Windsor  will be this generation’s Brown v. Board of Education or its Roe v. Wade. In other words, will the ruling come to be broadly accepted as an affirmation of basic equality and fairness (Brown), or will it become a flashpoint for serious and sustained pushback (Roe)?

A recent spate of anti-gay bills in red states (including Kansas, Idaho, Mississippi, and—most famously—Arizona), which use the mantle of religious freedom to counter the march toward equality, has planted a flag firmly in the soil of Roe v. Wade. If passed, these laws would have undermined the promise of Windsor by allowing a wide range of folks to opt out of having anything to do with gay and lesbian unions simply by claiming that forcing them to be involved would run counter to their religious beliefs.

These measures are a response to an equality that hasn’t even arrived yet, because none of these states allow same-sex marriages. The outcry over the sheer breadth of some of the bills—and their evident mean-spiritedness—led to their defeat. But only for now. In short order, proponents will resume waving the religious liberty banner, with measures that can be expected to look very much like the Arizona bill. Some will pass, and the battle over LGBTQ dignity and equality—and not just in the context of marriage—will continue to rage.

The marriage debate can blind us to how far the LGBTQ community is from equality in other areas of law. The proposed law in Kansas, and the reaction to it, is instructive in this regard. The bill was so broadly worded that its provisions would have gone way beyond gay marriage and effectively permitted any kind of discrimination against gay men and lesbians in both the public and private sectors. Consider this example: A gay couple goes into a diner in Topeka to order a sandwich to go. But they’re refused service, just because they’re gay. Would the proposed law have permitted that kind of rank discrimination?

The example above is a made-up account in a satirical newspaper columnist’s attempt to point out the possible consequences of the proposed bill. But here’s the punch (in the gut) line: The law in Kansas already allows a private business to do what this imaginary diner did. As David S. Cohen pointed out here in Slate, many states—including Arizona and the others that have recently considered passing these “conscience” bills—have no laws protecting any segment of the LGBTQ community against this type of private discrimination. The point bears repeating, because even folks like George Will assume that places of business must be open to all. But the federal civil rights law doesn’t include sexual orientation among the categories of people guaranteed access to places of public accommodation.

Given that depressing backdrop, what effect, if any, could any of these proposed laws have once marriage equality blankets the land? It depends what state you’re in.

Let’s first consider states without anti-discrimination laws protecting the LGBT community—that is, places like Kansas, Idaho, and Arizona. There, these proposed laws would be a kind of belt-and-suspenders protection for businesses that want to go on denying services related to gay unions, because only the state is affected by a law requiring the issuance of marriage licenses. Bakers can go on refusing to stick two grooms on cakes, photographers can keep their shutters closed to gay unions, and florists can let their stock dry up and blow away rather than be pressed into gay service. They don’t even have to have a religious reason—or any reason at all, for that matter.

These proposed laws would still have an effect, though, because they’d create a bizarro legal world where the government itself both recognizes the equality of same-sex couples and allows them to be discriminated against. For instance, under the Arizona law, a county clerk could refuse on religious grounds to issue a marriage license to a same-sex couple, even if same-sex marriages were legal in that state.

 To defeat the religious exemption, the couple would have to show that there was a “compelling interest” in having the employee issue the license. That might be hard to do if there were other employees willing to do so.

If you doubt that this law is going to resurface, consider that it was recently defended in a letter written to Arizona Gov. Jan Brewer by an august group of my law professor colleagues. For them, the defeated bill was a reasonable accommodation of religious belief. Curiously, their letter doesn’t discuss the case of public employees, but the proposed law clearly put that issue in play.

Now consider the effect of such religious exemption laws in states that do protect against anti-gay discrimination. Some of these states have already gotten to marriage equality, some have not. But once marriage is required everywhere, the combination of the right to marry and an anti-discrimination law would prohibit private businesses from refusing to serve LGBTQ couples. In those states, some of the same law professors who are signatories to the Arizona letter—notably, Douglas Laycock and Robin Fretwell Wilson—have been arguing for a carve-out for businesses that want to “step aside” rather than provide services relating to a same-sex wedding. So far, they’ve had limited success. But they’ll keep trying, and it’s likely their view will gain traction, even in some blue states, before long.

As the case on the contraceptive coverage mandate under the Affordable Care Act currently before the Supreme Court reminds us, the issue of how far to accommodate religious freedom is complex. And for some, letting religious objectors “step aside” would be a reasonable accommodation of the competing goals of equality and religious freedom.

But it isn’t. Religions are burdened by law all the time. We don’t let people marry their kids off, or engage in human sacrifice, or do many other things that faith groups might say are required. That’s because we’ve decided that other interests, like human life and children’s safety, are more compelling.

So is the nondiscrimination imperative, especially once it’s enshrined in law. I wonder whether those law professors who signed that letter would be making the same argument if a business wanted to “step aside” and refuse wedding-related services to an interracial couple. Wait; no, I don’t. Although they won’t always say it directly, many of those trumpeting religious freedom when it comes to gay and lesbian marriages find the anti-discrimination norm a “compelling interest” that trumps religious objections in the case of race or sex discrimination.

That’s why we need Windsor to be the new Brown v. Board of Education.