Legal experts say court ruling has mixed messages

| June 27, 2015

k5408016by John Hinton, Winston-Salem Journal, June 27, 2015.

The U.S. Supreme Court’s ruling Friday that same-sex couples have a right to marry anywhere in the country isn’t as clear-cut as it might seem, legal experts say.

It also allows ministers to refuse to marry those couples — depending on who is asked.

Suzanne Reynolds, the dean of the Wake Forest University School of Law, said that the court’s decision is clear.

“States may not define its statutes or in its constitutions that marriage is only a union between a man and a woman,” Reynolds said of the 5-4 vote. “The right of persons of the same sex to marry, and the claim of that status are central to our identity as human beings.”

Justice Anthony Kennedy wrote in the court’s majority opinion that “the right of same-sex couples to marry, (which) is part of the liberty promised by the 14th Amendment, is derived, too, from that amendment’s guarantee of the equal protection of the laws.”

But Reynolds and other legal experts said that while the court’s decision gives gay couples a constitutional right to marry, it doesn’t require ministers to marry the couples. Under their faith’s doctrines, ministers can still refuse to marry same-sex couples, she said.

The court’s ruling prohibits actions by states to limit marriage only to heterosexual couples, said Michael Gerhardt, a law professor at UNC Chapel Hill.

“It’s not about how private people treat other private people,” Gerhardt said.

Shannon Gilreath, a WFU law professor, said he applauded the court’s decision.

“Now, the real test begins,” Gilreath said. “Will we respect the rule of law as we should, or will this be the next ugly George-Wallace-in-the-schoolhouse-door moment in American history? I hope not.”

Gilreath said that some states may attempt “to legalize discrimination against gays and lesbians in the name of ‘religious freedom’ exemption from anti-discrimination laws.”

Earlier this month, Senate Bill 2 in the General Assembly that allowed some court officials to refuse to perform some marriage duties for same-sex couples if they have deeply held religious beliefs became law in North Carolina after the state House voted to override Gov. Pat McCrory’s veto of the legislation.

Reynolds said that any legal challenge to this law likely would be successful because of the court’s ruling.

Francis Buckley, a law professor at George Mason University in Arlington, Va., said that states must allow gay couples to marry. Period.

“The refusal of a state to provide a marriage license to a same-sex couple is banned, even if a clerk cites a religious objection,” Buckley said. “The worst challenges to liberty come from intolerant people who tell you they’re in favor of liberty.”

Buckley also pointed to part of the dissenting opinion of Chief Justice John Roberts, which protected the concept of religious freedom.

“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” Roberts wrote.

The court’s ruling has other murky aspects, said Michael Rich, an Elon University law professor.

“What this means for discrimination against people because of their sexual orientation is unknown,” Rich said. “The court did very little that provides us with any sort of guidepost going forward.”

It’s also unknown whether sexual orientation “will be treated like other classifications, such as gender or race, which are given heightened constitutional protection,” Rich said.

“We don’t know what this decision will mean for future (or pending) challenges from people who wish to engage in bigamy or polygamy,” he said.

Category: NC Stateline, SPIN Blog

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