JURIST Guest Columnist Leonore Carpenter of Temple University Beasley School of Law discusses the US Court of Appeals for the Seventh Circuit’s opinion in two same-sex marriage cases and where the LGBT legal rights movement should be heading in the wake of marriage equality
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Earlier this month, the US Court of Appeals for the Seventh Circuit issued a rather remarkable opinion in Baskin v. Bogan and Wolf v. Walker, two same-sex marriage cases from, respectively, Indiana and Wisconsin. As many commentators have already noted, the unanimous opinion, penned by the inimitable Judge Richard Posner, was a ringing victory for the gay and lesbian plaintiffs, and followed less than two weeks on the heels of an oral argument that was something of a bloodbath for the states’ attorneys. Posner, one of the most highly respected federal judges in the nation (and not a man known for his left-wing bent), skewered the states’ reasons for prohibiting same-sex marriage as essentially unserious and incapable of passing even the most deferential form of constitutional scrutiny.

The court’s opinion and oral argument, remarkable as it is, is simply the latest in a nearly unbroken string of well over a dozen same-sex marriage wins at the federal district level since the Supreme Court’s decision in United States v. Windsor in the summer of 2013 (which held that the federal government cannot constitutionally withhold marriage benefits to same-sex couples who are validly married). Many of those victories have been quite decisive, featuring sweeping opinions that invoke Loving v. Virginia and echo the language of the African-American civil rights movement.

I offer my home state of Pennsylvania as an example of the scope of many of these victories. In May of this year, Pennsylvania became the nineteenth state to legalize same-sex marriage, after Honorable John Jones of the Middle District of Pennsylvania ruled in Whitewood, et al v. Wolf, that Pennsylvania’s Defense of Marriage Act (PA-DOMA) violated the US Constitution. Not only did Jones hand same-sex marriage advocates a win, he predicated that victory on a determination that sexual orientation is a quasi-suspect class and that statutes that discriminate based upon sexual orientation are consequently entitled to heightened scrutiny.

Jones, in ruling that PA-DOMA should be subject to heightened scrutiny, did not rely upon established precedent within the Third Circuit, but instead adopted the reasoning of the Second and Ninth Circuits, as well as numerous assorted district courts and state courts that had previously considered the question. Thus, Jones’ decision was not only a win for the plaintiffs, it provided a strengthened foundation for constitutionally based lesbian, gay, bisexual and transgender (LGBT) rights claims in the Third Circuit going forward.

But the Pennsylvania victory extended beyond the pages of the opinion itself. A mere two days after the decision in Whitewood was handed down, Pennsylvania governor Tom Corbett—a Republican governor who has been unfriendly to LGBT issues in the past—issued a statement asserting that his administration would not even appeal the ruling. The governor’s decision, coupled with the fact that Jones did not stay his decision pending even the thirty-day appeal period, meant that same-sex couples in Pennsylvania were immediately able to obtain marriage licenses and recognition of out-of-state marriages.

The LGBT civil rights movement has come to model itself over the last two decades, both in terms of legal strategy and in terms of rhetoric, on the African-American civil rights movement. The movement has turned its attention from the protests and direct grassroots action that marked the political response to the AIDS crisis, and has chosen instead to invest enormous amounts of time and capital fighting against formal inequality in the courts. The centerpiece of that campaign against formal inequality, for better or worse, has been the fight for legal recognition of same-sex relationships. Victories like the ones I’ve discussed demonstrate the unquestionable success of a decades-long marriage equality impact litigation strategy.

But let’s be clear—a victory for a same-sex marriage strategy does not equate to lived, real equality for actual LGBT people. For decades, legal scholars have noted, often in the context of race, that formal equality schemes do not perfectly address the lived inequality of minority groups. Formal equality is, without more, a limited instrument to achieve real change in the lives of citizens. And that is just as true for LGBT citizens as it has been for many African Americans in the decades since Brown, Loving, and the Civil Rights Act of 1964.

First and most obviously, marriage only matters if you want to be married. For single people, polyamorous families and those who are philosophically opposed to the institution of marriage, marriage equality does not fix much. In fact, as some scholars have noted, those who do not wish to marry may soon find themselves under greater pressure from our legal institutions to do so anyway, in order to obtain rights that were once unlinked to marriage. For example, same-sex couples in many jurisdictions can currently use the mechanism of second-parent adoption to cement the legal relationship between a non-biological parent and the child he or she is raising with a same-sex partner. Some family law scholars worry that, in the wake of universal same-sex marriage, states will do away with second-parent adoptions, instead requiring couples to marry in order to take advantage of either a marital presumption of parentage (for children born within a marriage) or a stepparent adoption (for children born prior to a marriage). In fact, Posner’s recent opinion links marriage rights so closely to the role of same-sex couples as parents that its tone may give credence to these concerns. Formal marriage equality, therefore, may liberate while it simultaneously constrains.

Second, marriage rights do not begin to touch the myriad of other ways in which LGBT people face discrimination. The very fact that an LGBT couple is married irrevocably “outs” that couple, so marriage may actually expose some LGBT people to discrimination. Pennsylvania, for example, is in the unique position of allowing same-sex marriage while still having no statewide anti-discrimination protection for LGBT people. Thus, an LGBT Pennsylvanian could conceivably legally marry her partner and then be legally fired for putting a wedding photo in her cubicle at work. The achievement of marriage rights, therefore, achieves some important goals, but leaves broad swaths of unfairness untouched.

Third, rights are simply not self-enforcing. A person in a valid marriage ostensibly has access to all of the benefits and responsibilities that marriage offers but if that individual encounters a hostile institutional actor, those rights can quickly prove unattainable. LGBT people desperately need culturally competent, well-trained legal representation to ensure that hard-fought gains are actually made available to all. For example, when a same-sex couple marries and then has a child, Pennsylvania has thus far refused to place both parents’ names on the child’s birth certificate, despite the fact that the marital presumption of parentage ought to apply equally to married same-sex and opposite-sex couples. And when couples divorce, bias may well creep into custody proceedings if a court favors a biological same-sex parent over the non-biological parent. In short, the success of formal equality gains creates an entire second wave of work around enforcement of rights; that work is not always well suited to an impact litigation strategy, but is nevertheless vital.

In my opinion, those of us who work in the movement must now take a step back and assess. We should carefully consider how to organize ourselves to acknowledge the legal needs of those who do not wish to marry, and to continue to press for formal equality gains, particularly in the employment context, and particularly on behalf of transgender and gender nonconforming people. Most importantly, the movement must consider how to shift resources so that well-trained, culturally competent attorneys are available to provide direct legal services to those whose legal rights, while technically available, still prove difficult to enforce without representation.

A college football coach once famously said, “Winning isn’t everything; it’s the only thing.” But rights aren’t football. Winning marriage equality neither fixes all other problems, nor does it fix the only problem. Lest I be accused of being a Debbie Downer (it wouldn’t be the first time), I must note that I am hopeful about the future of the LGBT rights movement. However, I believe that it’s critical to think about that future with the understanding that marriage equality, while important, is really a way station on a very long journey toward lived equality for all LGBT Americans.

Leonore Carpenter is an Associate Professor at Temple University Beasley School of Law. She previously served as Legal Director at Equality Advocates Pennsylvania, a public interest agency that provides direct legal services, education and policy reform advocacy for LGBT Pennsylvanians. Professor Carpenter designed a LGBT-rights clinical course, where she acted as an adjunct clinical instructor.

Suggested Citation: Leonore Carpenter, Winning Marriage Equality: Neither Everything Nor the Only Thing, JURIST – Forum, September 20, 2014, http://jurist.org/forum/2014/09/leonore-carpenter-marriage-equality.php.