The U.S. Supreme Court is making a distinction between “marriage” and “same-sex marriage.” That’s Dangerous.
Much ink has already been spilled about what Monday’s U.S. Supreme Court’s decision in Masterpiece Cakeshop does and does not mean. It’s been consistently described by LGBTQ advocates as a “narrow” holding. Some LGBTQ pundits have gone so far as to say they essentially agree with the Court’s conclusion that the Colorado Commission tainted the process, while others characterize it as “hardly a harmless bump in the road to full equality,” or see the decision as “encouragement” to those who seek to undermine LGBT rights.
For sure this was not the catastrophic undermining of anti-discrimination laws many of us feared. And surely Justices Kagan and Breyer – and Kennedy, too – wish for that to be true. But assertions that this decision is limited to the facts of this case are short-sighted. If this were solely about how the Commission handled the case (and keep in mind, this was, as Justice Ginsburg highlights in her dissent, merely one of many levels of adjudication), why not remand and send it back the Commission for a do-over?
Certainly, aspects of the majority’s decision provide some comfort and reassurance. How can we not celebrate the majority’s declaration that “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth”? Even Justice Gorsuch, despite his anti-LGBT record, signed on to this sentiment.
However. The most insidious part of this decision is not its depth or its breadth. It is the distinction draws between “marriage” and “same-sex marriage.” That is what reaches far beyond the facts of this case.
We got a Supreme Court decision that solidifies and reinforces the message (and what appears to be an emerging and disturbing legal reality) that there are two kinds of marriage: the regular kind and the same-sex kind – or as Justice Ginsburg described during oral argument in U.S. v. Windsor, “skim milk marriage.”
This is far more than a linguistic or political exercise. These are not distinctions without a difference. There are real-life consequences to distinguishing between “marriage” and “same-sex marriage.”
Take, for example, the families who have filed a lawsuit against the U.S. State Department because it is refusing to recognize their marriage. How so? Two men, a U.S. citizen and an Israeli citizen, are married and, through surrogacy, had twin sons who were born in Canada. When they sought recognition of the twins’ U.S. citizenship, they were compelled to demonstrate their biological relationship to the twins, a requirement that does not exist for the children of married (heterosexual) U.S. citizens. Because one of the fraternal twins was conceived with the sperm of one father and the other twin with the sperm of the other father, one of these fraternal twins is being treated by the U.S. government as a U.S. citizen while the other was forced to enter the U.S. on a tourist visa. Marriage. And same-sex marriage.
But you don’t need to leave the four corners of the decision to find distinctions between these two types of marriage being drawn. The majority opinion affirms that “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth” and assures us that “[t]he exercise of their freedom on terms equal to others must be given great weight and respect by the courts.” But in the very next breath we are told that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” Not “marriage,” but “gay marriage.” Like a “female CEO” or a “black lawyer.” Not a CEO and not a lawyer. Something different.
Time will tell how narrow or damaging this decision will be to LGBTQ people and our relationships. In the meantime, we must demand at every turn that marriage is marriage.
Seth M. Marnin is a civil rights attorney and advocate who advises non-profits on strategy, leadership, and organizational effectiveness.
Image by MitchellShapiroPhotography via Flickr and a CC license