2015 Truly Was America's Gayest Year
Gay Marriage, Caitlyn Jenner, Kim Davis, and Mandatory Wedding Cakes
If it weren't for the gloomy, omnipresent fear of terrorism from the Islamic State, gay marriage would have been the top national story for the year. Don't take it from me; take it from the Associated Press. In its end-of-year polling of 2015's top news, America's legalization of same-sex marriage ranked second, just behind the threat posed by ISIS.
It's probably the only story on the top 10 list that would be considered "good news" by a majority of Americans. In this long, forward march for the equal treatment of gays and lesbians under the law, 2015 marked the cresting of its biggest hill. The Supreme Court decision that declared the federal government and individual states must recognize same-sex marriages as legitimate allows millions of Americans the freedom to build their families and expect to be treated the same as other couples under the law.
This was also the year Olympic athlete once known as Bruce Jenner rechristened herself Caitlyn Jenner, making transgender issues a focus of national discussion and controversy and making sure the "T" in LGBT got its own form of attention.
For some, cresting this hill may be seen as the culmination and perhaps pending conclusion of a lengthy, bitter culture-war battle. For others—on both sides of the issue—it's not over, and new battle lines have been drawn. Here's a look back at the how this fight played out in 2015. Moving forward, we may never see a year as important as 2015 when it comes to gay and lesbian issues in America, but there's still conflict ahead.
For Better or for Worse
While the Supreme Court's 5-4 decision in Obergefell v. Hodges is very important for the lives of gay families, the decision itself was actually rather anti-climactic (despite the close vote). The ruling played out pretty much exactly how court watchers expected it would. The clock started ticking on this decision back in 2013, when the Supreme Court struck down parts of the federal Defense of Marriage Act (DOMA). In United States v. Windsor, the Court ruled that the federal government must recognize same-sex marriages from states that had already legalized it.
From there it was just a matter of time. Federal judges began declaring that state-level bans on same-sex marriage recognition were themselves violations of the protections provided by the 14th Amendment. A split from one federal court upholding bans in four states forced the Supreme Court to weigh in. Obergefell was one of several cases from those four states.
During arguments before the Supreme Court in April, it became pretty clear how the ruling would play out. Justice Anthony Kennedy, generally referred to as a swing vote in the case, signaled that he was interested in making gay marriage recognition mandatory.
Sure enough, when the decision came down at the end of June, Kennedy wasn't just the tie-breaker; he wrote the majority decision. In a ruling perhaps designed more to be quoted in the media than to actually be used as a precedent, he invoked individual liberty and autonomy as some of the reasons gay couples should have the same legal recognition as their heterosexual counterparts. "The right to personal choice regarding marriage is inherent in the concept of individual autonomy," he wrote. He echoed the Loving v. Virginia decision (which required states to recognize interracial marriages) and said the right to marry or not to marry another person "resides within the individual and cannot be infringed by the State."
And Yet the Culture War Rages On
While a majority of Americans now support same-sex marriage recognition and have for several years, it is certainly not an overwhelming majority, and there are many, many Americans who object to the ruling. Some of these people, such as a woman named Kim Davis, have positions working in government that place them squarely within the bureaucratic machinery of marriage.
Davis is the elected county clerk for Rowan County, Kentucky. Not long after the Obergefell decision, Davis decided that rather than comply, her county would stop issuing marriage licenses altogether. She had religious objections to legal recognition of same-sex marriages and claimed she wanted to have her name taken off marriage certificates. The American Civil Liberties Union sued on behalf of couples that were turned away. Davis was ordered to issue marriage licenses but refused, and then became international news when she was jailed for five days for contempt of court.
During the subsequent media circus, religious Republican candidates like former Gov. Mike Huckabee and Texas Sen. Ted Cruz jockeyed for attention in shows of support. She became a symbol for those who believed the Supreme Court's decision had gone too far in overruling individual state's authorities to determine the rules of marriage. Eventually she was released when she agreed not to interfere with the other clerks in her office handing out marriage licenses, but these licenses were altered so that her name would not appear on them. Whether or not these licenses are actually legal is now a focus of debate. The state's new Republican Governor, Matt Bevin, released an executive order just before Christmas stripping the names of county clerks off all marriage licenses in Kentucky.
The conflict with Davis was the most visible representation of resistance, but it's not the only one. Reactions have varied. In North Carolina, lawmakers passed legislation allowing county employees to opt out of duties performing marriages or issuing licenses if they have religious objections. But the county is also obligated to make sure magistrates or clerks are available to pick up the slack and that the county keeps regular hours.
In Alabama, state law gives county probate judges complete discretion as to whether to issue marriage licenses at all. In response to the Obergefell decision, some judges have opted out entirely. One solution floated by legislators is to end the practice of government involvement in issuing licenses entirely. This doesn't mean that the state would not recognize marriages at all. Rather, couples seeking to get married would simply fill out a form, get a couple of witnesses to sign along with them, and turn it back in to the government for filing. They would then be considered legally married by the state. No judges. No clerks. If there are any legal problems with the legitimacy of the marriage, it would be a matter for the courts, not county bureaucrats. The bill didn't get enough votes to pass in a special session, which required a higher vote threshold, but it did get enough to pass in a normal session. We may see its revival in 2016.
Going to the Chapel and We're … Gonna Get Turned Away?
Judges and clerks objecting—that's all government stuff. Objections have been playing out in the private sector in their own way. Some business owners who provide goods and services for weddings do not support gay marriages, and they've attempted to assert their beliefs by refusing to provide their goods and services to same-sex couples.
This private conflict revolving around the voluntary exchange of goods and services, not government recognition, has also been brewing over several years. Many states have laws forbidding discrimination in the marketplace and in public accommodations on the basis of sexual orientation. These states have decided that these laws apply to those who do not want to sell goods or provide their services for gay weddings.
The highest profile example of this conflict played out in Oregon in 2015, though it actually began several years earlier. Aaron and Melissa Klein, owners of Sweet Cakes by Melissa in Portland, declined to make and sell a wedding cake to a lesbian couple. The couple turned to the state's Bureau of Labor and Industries and filed a complaint, claiming extreme emotional damages as a result of being denied.
Even though the complaints of emotional harm read like absurd exaggerations ("Respondent's denial of service made her feel as if God made a mistake when he made her…"), the state ruled this summer that the Kleins must pay the couple $135,000 because of how refusing to make a wedding cake made the couple feel. The Kleins resisted orders to pay, but finally, just after Christmas, turned in a check.
Transgender Issues Stand on Their Own
The "T" in LGBT has always had a little bit of an issue with where it fit in. It's not that gays and lesbians and transgender people haven't had to deal with similar issues of discrimination. For the longest time, mainstream America lumped gays and transgender people together anyway. Anything that represented deviation from normal representations of sexual and gender identity was all lumped into the same subcultural subcategory.
But while gays and transgender folk had some of the same goals toward fair treatment and recognition under the law, transgender people have additional battles in getting the government and public to respect not just their relationships but the outward expression of their gender variations..
Transgender women (it's always women) have captured America's attention for brief periods in the past, but this April, when Olympic champion Bruce Jenner declared "Call me Caitlyn" and became Caitlyn Marie Jenner, it became abundantly clear that American culture has now also separated gender-identity issues from sexual orientation.
It's also a situation where the line blurs between government treatment of transgender people and private recognition of transgender identities. Actually, maybe the conflicts over dealing with gay marriage and dealing with transgender identities aren't so different after all.
On the government side, transgender people still have to struggle with agencies or civil employees who cannot figure out how to accommodate their identities, from prisons to public-school bathrooms to airport security checks. Transgender television writer Shadi Petosky made national news in September when she tweeted a harrowing ordeal in Orlando with Transportation Security Administration (TSA) officials who simply could not figure out how to deal with the body scanners (which are programmed to evaluate a body's shape based on biological gender) recognizing that Petosky had a penis despite her appearance as a woman. After the coverage, TSA officials promised to improve training, but Petosky and other transgender fliers still face harassment at security screenings. Furthermore, in December, the TSA declared it would institute a rule that would allow TSA employees to force passengers through these body scanner machines and not allow them to "opt out."
And then there's the bathrooms. Much of the apparent concern about how to deal with transgender citizens, both in the public sphere and in private spaces, revolves around an irrational fear that transgender people are somehow violating privacy or are an actual criminal threat of harming others in places like bathrooms and locker rooms.
The fear played out in a massive backlash in Houston, Texas, in November. Houston passed an anti-discrimination ordinance (for both the government and private sector) that included sexual orientation and gender identity. Religious opposition forced the ordinance onto the ballot for a public vote, and it lost badly. The opposition campaign was based entirely around the fear of males pretending to be transgender and showing up in women's bathrooms to prey on young girls.
Neither the proponents nor the opponents of the legislation seem interested in differentiating between obligating the government to accommodate transgender citizens and leaving private businesses to make their own decisions on what to do with their bathrooms or locker rooms. This lack of distinction seems to be playing out elsewhere as well. New York City is pushing forward regulations to protect transgender workers in the private sector that seems so broad that it could result in fines for not using the right gender pronoun or not offering coverage for transgender treatment in health insurance. On the other side, some California activists tried (but failed) to introduce a ballot initiative obligating transgender people to use public bathrooms that match their birth sex unless they had undergone reassignment surgery. Don't ask how such a law could possibly be policed.
On to 2016. What's Ahead?
While there is a conservative backlash to this year's legal pushes on gay issues, they're actually not playing a significant role in the Republican primaries, thanks to the dominance of foreign policy concerns and the ongoing circus show that is Donald Trump. Several candidates—Cruz, Huckabee, Sen. Marco Rubio (R-Fla.), and Sen. Rand Paul (R-Ky.), for example—have expressed dissatisfaction with the Obergefell decision, and some have promised to try to bring power back to the states (even this is a concession from the old position of trying to ban gay marriage recognition entirely). But the issue has barely made a presence in the debates, and it's not clear that it is a motivating factor for candidate support.
On the other side of the aisle, Hillary Clinton is offering LGBT voters the sun, moon, stars, and many, many new federal laws and regulations in order to make sure these voters stay loyal to the Democratic Party. As with all these previous conflicts mentioned, Clinton seems to show little interest in discerning any sort of difference between discrimination by the government and discrimination within the private sector. She sees the government's hand in fixing all of it. She supports the passage of the Equality Act, an extremely broad new law that adds sexual orientation and gender identity to existing federal anti-discrimination policies, but would also drastically increase the definition of a "public accommodation" so that nearly every business in America would be subject to potential federal intervention over refusal to provide service to protected classes, rather than just the limited businesses currently listed in the Civil Rights Act of 1964.
For libertarians, 2015 may mark the year where we part ways for good from progressive supporters on gay issues. Many libertarians have been supporters of same-sex marriage recognition. Often this seen as a compromise of the libertarian belief that the government should play no role in marriage. If the government must be involved in marriage, or if we are unable to extract the government of its role in marriage, it has no legal reason to be treating gay couples differently from heterosexual couples.
But that's government behavior, not private behavior. The idea that refusing to make a wedding cake for a lesbian couple gives the government the authority to seize $135,000 from a baker and hand it over to other people is an appalling abuse of force from a libertarian perspective. We all have the right to demand the government respect our mutually consensual relationships. Nobody has a right to force somebody to bake them a cake.
