Obergefell V. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination Jeremiah A
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University of Massachusetts School of Law Scholarship Repository @ University of Massachusetts School of Law Faculty Publications 2016 Once We're Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination Jeremiah A. Ho University of Massachusetts School of Law - Dartmouth, [email protected] Follow this and additional works at: http://scholarship.law.umassd.edu/fac_pubs Part of the Civil Rights and Discrimination Commons, Law and Society Commons, and the Sexuality and the Law Commons Recommended Citation Jeremiah A. Ho, Once We're Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti- Discrimination, 104 Ky. L.J. 207 (2016). This Article is brought to you for free and open access by Scholarship Repository @ University of Massachusetts chooS l of Law. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Scholarship Repository @ University of Massachusetts chooS l of Law. Kentucky Law Journal VOLUME I04 2015 – 2016 NUMBER 2 ARTICLES Once We’re Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination Jeremiah A. Ho1 Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since United States v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the United States was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage broader protections for LGBTQ individuals beyond their marital relationships? This Article begins from the perspective that the marriage equality movement is an increment in the longer process for securing legal protections for sexual minorities. Recently advancements in sexual orientation have been somewhat successful, and now that marriage equality is finally secured, progress for protecting sexual minorities should navigate toward reforms in federal anti-discrimination laws. Although many of the judicial victories in the marriage cases have been specifically effective toward recognizing the relationships of same-sex couples, there have also been some significant judicial strides 1 Assistant Professor of Law, University of Massachusetts School of Law. Many thanks to Margaret Drew, Eric Mitnick, and Richard Peltz-Steele for advice and comments. I am also grateful for the research support and assistance of Felicia Carboni, Albert Marks, Megan Beyer, Kurt Hagstrom, Emma Wood, Jessica Almeida, and Cathy O’Neill. Much thanks to the University of Massachusetts for funding this research. Lastly, much gratitude for the work of Joseph Sherman and the staff at the Kentucky Law Journal. KENTUCKY LAW JOURNAL [Vol. I04 from post-Windsor cases and Obergefell that could be instrumental for furthering progress in areas of sexual orientation anti-discrimination. This Article discusses how such judicial advances ultimately bolster autonomy rights in sexual identity that anti-discrimination laws, specifically Title VII, ought to protect, but currently do not. INTRODUCTION Despite some segments of the social consciousness reeling from the gravity of victory after Obergefell v. Hodges,2 the period that recently led to Obergefell and marriage equality has been part of a larger enduring transition, where social and legal norms about same-sex couples are still rapidly readjusting from a not-so- distant past where discrimination, exclusion, and inequality were all stagnantly commonplace.3 For guidance on pondering this moment normatively, a glimpse at history toward other critical periods of transition can prove helpful as a starting place to give us perspective on how to characterize the meaning of this particular time for sexual minorities and on what we ought to consider for sexual orientation in the next incremental progression toward equality and recognition. Borrowing from presidential campaign history, an interesting but unexpected example comes from Ronald Reagan’s road to reelection in 1984. Reagan’s campaign capitalized on the strength of his first term in the White House with an effective metaphor that signified both his achievements and what ought to continue so long as his reelection was assured.4 Calling the moment “a morning” from the 2 Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015) (holding that same-sex couples may not be denied the fundamental right to marry); see generally The Associated Press, Historic Gay Marriage Ruling Stirs Emotion Across US, ASSOCIATED PRESS: THE BIG STORY (June 26, 2015, 8:06 PM), http://bigstory.ap.org/article/12a175ff5e0a4f5d8542d3861d219431/look-gay-marriage-reaction-across- us. 3 See, e.g., Defense of Marriage Act (DOMA) § 2(a), 28 U.S.C. § 1738C (2011) (“No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage . .”), invalidated by United States v. Windsor, 133 S. Ct. 2675, 2695–96 (2013); 10 U.S.C. § 654(a)(13) (1993) (“The prohibition against homosexual conduct is a longstanding element of military law that continues to be necessary in the unique circumstances of military service.”), repealed by Don’t Ask, Don’t Tell Repeal Act of 2010, Pub. L. No. 111-321 § 2(f)(1)(A), 124 Stat. 3515, 1516; Bowers v. Hardwick, 478 U.S. 186, 191 (1986) (“Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.”), overruled by Lawrence v. Texas, 539 U.S. 558, 578 (2003). 4 See ROBERT E. DENTON, JR., THE PRIMETIME PRESIDENCY OF RONALD REAGAN: THE ERA OF THE TELEVISION PRESIDENCY 64 (1988) (“By the reelection of 1984, the advertisers who had produced Pepsi commercials brought their skills to Reagan the product. The spots proclaimed that ‘It’s morning again in America’ . .”). 20I5-20I6] Once We’re Done Honeymooning domestic turbulence of the 1970s and hitching on the notion that what Reagan brought to the country in the 1980s was a new age,5 this idea of a new dawn from the Reagan-Bush campaign crystallized into an ad titled, “Morning in America.”6 From the first few seconds of the ad, “Morning in America” wastes no time stoking an atmosphere of prosperity in the 1980s, a triumph from the suggested economic and social darkness of the 1970s, through tranquil images of dawn’s gilded early light shimmering across boats, piers, and tall buildings along a quiet harbor; of middle-class Americans suited up and earnestly going to work; and of a family of four pulling up in their station wagon to a new white-picket home and moving their belongings inside.7 Meanwhile, statistics carefully woven into a sobering voice-over message explained why it was exactly that moment, at the end of Reagan’s first term, that was politically and metaphorically “morning” again in America: “Today more men and women will go to work than ever before in our country’s history. With interest rates at about half the record highs of 1980, nearly 2,000 families today will buy new homes, more than at any time in the past four years.”8 Hard to ignore, from this Article’s perspective, is the next set of images that marries both social and economic prosperity by depicting a handsome, white opposite-sex couple engaged in a classic church wedding celebration, while we are told that “this afternoon 6,500 young men and women will be married. And with inflation at less than half of what it was just four years ago, they can look forward with confidence to the future.”9 The initial exposition of a new morning juxtaposed with the ad’s use of this marriage scene as one of its centerpiece observations suggests both the progression of norms that political conservatives at the time valued and found worth bolstering—or protecting—in a possible second Reagan term.10 The ad smartly proposes that this is the norm that the new morning unapologetically has in store for the rest of this new ensuing day: a return to a 5 See GIL TROY, MORNING IN AMERICA: HOW RONALD REAGAN INVENTED THE 1980S 12 (2005) (“The first part [of Reagan’s storyline] tells the sad tale of America in the 1960s and 1970s, a country demoralized, wracked by inflation, strangled by big government . The result [of Reagan’s revolution] was Morning in America . .“). 6 Reagan-Bush ’84: Prouder, Stronger, Better (Tuesday Team: Hal Riney Sept. 17, 1984), http://www.livingroomcandidate.org/commercials/1984/prouder-stronger-better. This reelection spot became known more popularly as “Morning in America.” Presidential Campaign Commercials 1952– 2012, 1984: Reagan v. Mondale, MUSEUM OF THE MOVING IMAGE, http://www.livingroomcandidate.org/commercials/1984/prouder-stronger-better (last accessed Apr. 4, 2016).; see also Daniel R. Ortiz, The Difference Two Justices Make: FEC v. Wisconsin Right to Life, Inc. II and the Destabilization of Campaign Finance Regulation, 1 ALB. GOV’T L. REV. 141, 158–59 (2008) (describing images portrayed by Reagan’s campaign advertisement). 7 Reagan-Bush ’84, supra note 6. 8 Id. 9 Id. 10 See id. KENTUCKY LAW JOURNAL [Vol. I04 conventional family-values rhetoric that might have been temporarily forgotten in the interim of the 1970s.11 It is not until the ad finally fixates over an image of a stately view of the Capitol Building at daybreak, stoically white and alabaster, that the statistics give way to whom or to what the ad intended to sell: “Under the leadership of President Reagan, our country is prouder and stronger and better.