New bills reveal a stubborn resistance to marriage equality.

A New Crop of Anti-Gay Legislation Highlights Enduring Opposition to Same-Sex Marriage

A New Crop of Anti-Gay Legislation Highlights Enduring Opposition to Same-Sex Marriage

Outward
Expanding the LGBTQ Conversation
Feb. 23 2016 8:30 AM

If You Thought the Fight for Same-Sex Marriage Was Over, Check Out These Awful New Bills 

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The White House may have gone rainbow-colored to celebrate the Supreme Court’s 2015 ruling on Obergefell v. Hodges. That doesn't mean the fight for marriage equality is over.

Mark Wilson/Getty Images

“Whatever you think of the Supreme Court’s decision in the gay marriage case, one consequence is that the wording on the marriage licenses is different now. Husband and wife have been replaced with Spouse 1 and Spouse 2.”

Thus spoke the priest at a family wedding I attended in Oklahoma City last summer. He went on to make comments that were more directly offensive to progressive women than they were to gays, bemoaning the pesky, modernist impulse to place adult relations, careers, and—quelle horreur!—even travel ahead of the procreative duties of “husband” and “wife.” (I was there with David—“Spouse 2”—and our kids, wondering, with each passing sentence, whether I’d be forced to turn on my heel, gather up my stunned family, and stride dramatically up the aisle, in a sort of backward, re-spooling protest of the procession we’d just witnessed.)

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The priest’s lamentations have now been heard hundreds of miles away. A few days ago, the Kentucky Senate decided to do something about the de-sexing of the law wrought by marriage equality. By a lopsided count of 30–8, the senators voted to create two separate marriage licenses. The first retains the traditional wording (in Kentucky, that’s bride and groom), while the second presents the deliberately cold first party and second party.

Couples can choose which form they use. As Stephen West, the Republican senator who sponsored the bill, helpfully noted, a gay or lesbian couple can choose to call themselves bride and groom. But there’s no groom and groom or bride and bride form. That glaring omission makes it clear that the intent isn’t just to “respect traditional marriage” but also to disparage same-sex couples, by bundling them into an android space or by forcing one of them to play the other sex. That’s made even more obvious in the failure of an amendment that would have created one form, where the couple could choose among the terms husband, wife, and spouse.

It’s inevitable, isn’t it, that at least some queer couples will make a public performance of taking over these binary, role-coercing labels, perhaps in resplendent drag? In 2016, the whole bride and groom thing contains more than a whiff of drag, anyway. Had the senators—who began fussing with marriage licenses in an effort to protect objecting clerks like Kim Davis—not bumbled into this controversy, few would have cared: What’s in a name? But if this bill passes the Kentucky House and is then signed into law, more than a few straight, feminist couples will bridle at the bossy effort to enforce religious and social conformity. For them, Spouse 1 and Spouse 2 it will be.

Is the Kentucky law constitutionally valid? Probably not, because it seems designed as much to humiliate same-sex couples as it does to valorize and time-freeze their opposite-sex counterparts. And Justice Anthony Kennedy—the author of last summer’s Obergefell v. Hodges decision that the Oklahoma priest was alluding to in bemoaning the change to the language of marriage licenses—has no patience for laws that deprive gays and lesbians of their dignity.

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Whatever the law’s validity, the impulse behind it reflects a stubborn resistance to same-sex marriage. For some, it’s hard to admit that the issue is still a live one. At the end of last month, I received a “going out of business” e-mail from Freedom to Marry, the organization founded by marriage equality pioneer Evan Wolfson. Declaring the “strategy fulfilled and goal met,” the site will now become an archival effort, dedicated to telling the story of how the movement won, and why it matters.

But the movement has not won just because the Supreme Court declared that gay and lesbian couples must be given marriage licenses. Wolfson has surely earned the right to step aside, but a distressing outbreak of new laws and bills highlight the continued strength of the opposition. While Kentucky is busily building its “separate but equal” ramparts, down the road a piece in Georgia, a sweeping religious exemption law is poised for quick enactment. The current version of the bill, which passed the state Senate last Friday, allows any “person” to act, with legal impunity, in accordance with their religious beliefs regarding marriage—including a belief that marriage means the union of a man and a woman. Incredibly, there’s no limitation in the bill as to the kinds of actions that can be taken in furtherance of such beliefs. (Murder? Nothing in the bill says otherwise, as long as the action were motivated by a “sincere” religious belief.) Not surprisingly, the measure is opposed by state and local chambers of commerce, a host of Georgia-based companies, and major hotel chains. Conference cancelations are predicted, and one telecom startup has already announced it’s fleeing the state. The legislators seem unconcerned.

There’s more. North Carolina already has a law that allows public officials to opt out of issuing marriage licenses (or solemnizing marriages), and the Virginia House of Delegates has passed a bill that closely mirrors Georgia’s. The ACLU maintains a state-by-state tally of these bills, an exercise both helpful and harrowing. The list is updated weekly, to keep up with the insanity spewing out of statehouses at warp speed.

There’s something deeper than marriage equality resistance at work here. The Oklahoma City priest recognized that marriage equality opens up a broader challenge to gender roles and identities. Although they were mostly left out of the debate, trans and gender-fluid people benefit from that re-envisioning, and they’ve come under legal attack, too. In South Dakota, a bill now sits on the governor’s desk that would require trans students to use bathrooms and locker rooms consistent with their “sex at birth.”

State lawmakers are emboldened not only by local opinion but also by the refusal of two of the remaining Republican presidential candidates—Sens. Ted Cruz and Marco Rubio—to accept the Supreme Court’s decision. Rubio wants the court to reverse itself (and he’d appoint justices to do just that), while Cruz has called the Obergefell decision illegitimate.

And Cruz, it’s worth noting, draws support for his radical view from none other than the late, inexplicably canonized Justice Antonin Scalia. As Cruz noted a few months ago, Scalia himself thought the Obergefell decision was a fundamental threat to democracy and referred to it as a “judicial Putsch.” (Nor was Scalia the only dissenting justice who questioned the court’s authority to recognize the basic dignity and equality of gays and lesbians. As I wrote back when the Kim Davis situation was in full cry, Chief Justice John Roberts agreed that the decision was without constitutional provenance.)

It’s not fair, of course, to blame these legislative tantrums on Scalia alone—or on anyone else, for that matter. Marriage equality has tapped into a vein of disquiet that runs deep. But the angry justice’s vicious dissent should be remembered amid the crazy hagiography that has followed his death.

John Culhane is the H. Albert Young Fellow in Constitutional Law at Delaware Law School, and Co-Director of the Family Health Law & Policy Institute. He is a frequent contributor to Slate, and is working on a book about the legal recognition of relationships other than marriage. Following him on Twitter is possible, but not necessarily wise.