Implications of U.S. Supreme Court’s Announcement of Constitutional Protections for Same Sex Marriage – Part One

By now, most Americans have heard that the U.S. Supreme Court has announced constitutional protections for same sex marriage.  This means that same sex marriage is legal and protected in all fifty states, on an equal footing with marriages between men and women.  But, the resolution of the same sex marriage issue raises a host of new issues.  This article addresses just a handful of those issues.  This Part One deals with issues outside of employment law.  Part Two  addresses issues arising under employment law.

  • Can those with religious objections refuse to participate?  It depends on the role of the person who is objecting.
    • Court clerks:  Court clerks – government employees who are assigned the job of issuing marriage licenses – probably must issue the marriage license without regard to whether they approve of the marriage.  The clerk’s job is typically what is called a ministerial, or non-discretionary, duty.  He or she must verify that the requirements for the issuance of the marriage license are satisfied and then issue the license to all who satisfy the requirements.  By way of analogy, when a court clerk is responsible for accepting lawsuits and other court papers for filing, the court clerk is required to accept the pleadings and file them with the court without regard to the merits of the arguments in the pleadings.  The same sort of analysis applies to the issuance of marriage licenses.
    • Clergy:  Ministers, rabbis and others serving in a religious – not governmental – capacity will continue to be guided by their faith.
    • Private Vendors:  Caterers, florists, limousine drivers, reception halls, etc. are private entities.  It seems likely that, since they are not employed by a government, they can choose to whom to provide services, using whatever criteria they wish to apply – unless they are in a state or city that has specifically banned this sort of picking and choosing.  Over time, the marketplace will probably have an impact, with same sex couples naturally gravitating to those vendors that appear to be welcoming and those vendors that do not appear to be welcoming paying an economic price for their stance.
  • Housing:  Can landlords, buyers, sellers, and banks discriminate against same sex couples with respect to housing?  Just as there has been, and will continue to be, litigation over race-based housing decisions, there will likely be litigation over housing decisions based on the renters or purchasers being same sex couples.   When analyzing these sorts of claims for same sex couples, it seems likely that courts will apply similar standards to those applied to race-based housing decisions.
  • Employment:  The impact of this decision on employment requires more analysis and will be addressed in part 2 of this article.

The analysis set forth in this article is provided for general understanding only and should not be considered legal advice.  Counsel should be consulted regarding any specific legal issues.

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