Angie and Kami Roe married in Utah after a federal court struck down the state’s ban on same-sex marriage and then decided to start a family using assisted reproduction. Kami was delivered of a healthy baby girl early this year. But when the happy couple tried to list both women as mothers on Lucy’s birth certificate, the Utah Health Department’s Office of Vital Records and Statistics refused.
Utah law allows a husband and wife both to be listed as parents if the couple uses a sperm donor to conceive. But officials told the Roes that Angie could be listed as Lucy’s parent only if she filed for stepparent adoption, an expensive and time-consuming procedure.
With the same-sex marriage case pending at the Supreme Court, the Roes sued the state agency in federal district court in April, represented by the state affiliate of the American Civil Liberties Union (ACLU). The ACLU lawyers contended that the state’s decision violated the Roes’ right to equal protection of the law.
In a hearing after the Supreme Court ruling in favor of marriage rights for gay and lesbian couples, state officials still tried to defend their decision in the Roes’ case, according to the account in the Deseret Morning News. Parker Douglas, Utah’s federal solicitor, told Judge Dee Benson that the records office wanted to ensure accurate statistics on genetic data. The state also had an interest in making sure parental obligations were assumed voluntarily and knowingly.
Joshua Block, a lawyer with the ACLU’s LGBT Rights Project, told Benson the Roes should be treated just like an opposite-sex couple. “A married couple is a married couple is a married couple,” Block said. And Benson agreed. “I don’t think it’s a hard case,” the judge said as he issued a preliminary injunction in the Roes’ favor on July 15. A few days later, the state attorney general’s office said it would not appeal.
Benson’s ruling is believed to be the first to deal with same-sex couples’ rights in the context of assisted conception since the Supreme Court decision, but there will be many more issues for courts to sort out in the brave new world of marriage equality. It will take time even for officials with no problems with same-sex marriage to sort out the implications of two moms, two dads, etc. And some of those who opposed same-sex marriage rights before the Supreme Court decision show no signs yet of accepting the ruling lying down.
The most visible of those battles, the fights over same-sex wedding cakes, continued last month in Colorado. Jack Phillips, a baker in the city of Lakewood, asked the Colorado Court of Appeals to rule that he had a First Amendment right to refuse to make a cake for a gay couple’s wedding reception. The Colorado Commission on Human Rights rejected the argument and found him guilty of discrimination under state law.
Lawyers for Phillips, an evangelical Protestant, told the judges in the July 7 hearing that Phillips also refuses to make Halloween cakes or cakes with racist themes, according to the account in the New York Times. Ria Mar, the ACLU lawyer representing the gay couple, said that Phillips’ religious beliefs were no license to discriminate. “[W]hen he opens a business that is open to the public, he is not free to sue those beliefs to discriminate,” Mar said outside the hearing.
Colorado is one of 22 states that include sexual orientation in anti-discrimination statutes. Kentucky does not. So when a similar case arose there, the result was different. Hands on Originals, a Christian outfitter in Lexington, was sued after it refused to print T-shirts for a gay pride festival, according to a wrap-up by USA Today’s Richard Wolf. The county human rights commission ruled against owner Blaine Adams, but a county court reversed the decision earlier this year.
Gay rights advocates say they are winning most of these cases. “The courts have very consistently held that this is not a free speech or religious freedom issue,” Sarah Warbelow, legal director at the Human Rights Campaign, told Wolf. But, as Wolf notes, the Supreme Court has yet to be heard on the issue. The court declined a year ago to hear a New Mexico photographer’s First Amendment plea to overturn a finding that he violated state law by refusing to photograph a same-sex wedding.
Battles are also forming in Congress and in state legislatures. LGBT rights advocates responded to the marriage decision by renewing efforts for more anti-discrimination laws in the states even as religious conservatives were vowing to fight for religious freedom exemptions. Meanwhile, conservatives in Congress are pushing a bill, entitled the First Amendment Defense Act, aimed at protecting tax exemptions for religious or charitable organizations that refuse to recognize same-sex marriage.
The fights seem to belie Chief Justice John G. Roberts Jr.’s complaint in dissent that the court’s ruling had cut off debate over same-sex marriage. In time, however, Roberts may prove to be right.
Interracial marriage was still somewhat controversial when the court struck down anti-miscegenation laws in 1967. Today, mixed-race marriages occasion no comment whatsoever. “It’s my hope that the term gay marriage will soon be a thing of the past,” lead plaintiff Jim Obergefell said after the court’s new decision. “That from this day forward it will simply be marriage. And our nation will be better off for it.”