In a historic ruling, the United States Supreme Court decided Obgerfell v. Hodges late last week, holding that states must recognize same-sex marriage. While this is certainly a landmark victory for advocates of gay rights, it does not mean that the lesbian, bisexual, gay, and transsexual (LGBT) community has accomplished all of their goals with respect to eradicating institutionalized discrimination.
For example, in California, a wedding photographer would likely be able to legally refuse to photograph a same-sex wedding under certain circumstances. While the Unruh Civil Right Act prohibits California businesses from discriminating against people on the basis of sexual orientation and other characteristics, it applies only to “business establishments” and not to individuals providing a service. In order to determine whether a photographer or photography company is operating as a business, California courts weigh a number of factors, including the number of employees and whether the operation has physical facilities, as well as others that may be relevant. As a result, a large-scale wedding photography business that advertised to the general public could likely not legally refuse to photograph a same-sex wedding, while an individual who freelanced as a side-job may be able to do so.
Achieving equal protection will likely take time
The Supreme Court’s decision in Obgerfell is representative of a profound shift in public attitudes towards homosexuality generally and same-sex marriage specifically. While LGBT rights advocates have made progress over the past few years, issues regarding discrimination (and its prohibition) remain tangled in a web of complicated and often overlapping federal and state laws and regulations. For example, while Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation on the federal level, a 2013 Supreme Court decision extended federal employment benefits to federal employees, so long as the jurisdiction in which they were married recognized same-sex marriage.
Additionally, opponents of same-sex marriage are framing the discrimination issue as related to the 1st Amendment’s guarantee of freedom of religion and speech. Laws that prohibit individuals and businesses from discriminating against same-sex couples, they argue, infringe on their right to put their religious beliefs into practice. Whether these arguments have merit remains to be seen, but if the court decisions of the civil rights movement of the 1960’s are instructive, they will likely fail.