While the Supreme Court is the final arbiter of the meaning and application of federal law, its decisions do not magically resolve deeply rooted social controversies; nor are they immediately and unanimously followed by state and local authorities, including judges. Controversial decisions, such as Brown v. Board of Education (school desegregation), Roe v. Wade (abortion) and, most recently, Obergefell v. Hodges (same-sex marriage), often are challenged for decades by opponents seeking their reversal or limitation.
Constitutional protection of same-sex married couples
Two recent cases, one decided by the U.S. Supreme Court (Pavan v. Smith) and one decided by the Texas Supreme Court (Pidgeon v. Turner), illustrate the reluctance of state officials to implement controversial decisions. Both cases involve the rights of same-sex married couples. Pavan involved Arkansas’s birth certificate statute, which gave automatic parental recognition to the male husbands of birth mothers, but did not permit the similar inclusion on birth certificates of female wives of birth mothers.
Six justices, including Chief Justice Roberts who dissented from Obergefell, gave a strong indication that they will continue to stand by the decision that banned state discrimination against same-sex marriage. The court did not even grant Arkansas the benefit of a full briefing and oral argument; instead it issued a summary decision that applied Obergefell and reversed an Arkansas Supreme Court ruling that had upheld the law.
Controversial decisions often are challenged for decades by opponents seeking their reversal or limitation.
According to the per curiam decision, “The State uses those [birth] certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”
Three justices—Gorsuch, Thomas and Alito—dissented. The dissent, authored by Justice Gorsuch, raised some procedural objections, but also accepted Arkansas’s inaccurate characterization of its law as a “biology based” birth registration regime. The Arkansas law presumed that husbands are the biological fathers of their wives’ children. That presumption has many positive aspects but is not always the case.
In Pidgeon v. Turner, the Texas Supreme Court sent a controversial case back to the trial court, thereby delaying a decision on the applicability of Obergefell, Pavan and De Leon v. Abbott (a relevant Fifth Circuit decision that enjoined enforcement of a Texas law prohibiting the recognition of same-sex marriage).
Pidgeon is a taxpayer who contends the city of Houston is violating his religious rights and misspending government funds by providing benefits to the same-sex spouses of city employees. Obergefell and Pavan make clear that states may not deny same-sex couples “the constellation of benefits that the States have linked to marriage.” Nevertheless, the Texas Supreme Court in Pidgeon, a decision issued days after Pavan, determined “Obergefell is not the end . . . . [L]itigants throughout the country, must now assist the courts in fully exploring Obergefell’s reach and ramifications, and are entitled to the opportunity to do so.”
Public accommodation discrimination against same-sex married couples
Some of those litigants “exploring Obergefell’s reach” will be heard by the U.S. Supreme Court next term when the justices take up the Masterpiece Cakeshop case. Unlike Obergefell and Pavan, which determined that governments may not discriminate against same-sex couples, Masterpiece Cakeshop will determine whether governments may penalize private business owners who discriminate against same-sex couples.
The case involves the application of Colorado’s public accommodations law and pits the state’s protection of a couple’s right “to obtain a wedding cake to celebrate their same-sex marriage against the rights of. . . [a bakery and its owner] who contend that requiring them to provide such a wedding cake violates their constitutional rights to freedom of speech and the free exercise of religion.”
The Masterpiece Cakeshop litigants will probe the limits not only of Obergefell, but also of Hobby Lobby (recognizing the religious rights of businesses), Citizens United (expanding the free speech rights of businesses) and Employment Division v. Smith (disregarding religious rights when infringed by neutral laws). Regardless of whether the Supreme Court issues a groundbreaking decision giving greater clarity to constitutional rights or makes a limited fact-specific ruling, the social controversy over same-sex marriage and its implications for religious and individual rights may continue for some time.