Flouting Marriage Equality

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Even though the marriage decision from the Supreme Court came in June 2015, many jurisdictions have been attacking the ruling. Zulma Oliveras Vega (left) and Yolanda Arroyo Pizarro, plaintiffs in Lambda Legal’s marriage case in Puerto Rico, had to wait until 2016 for a court to say that Obergefell applied to the island. A district court had ruled previously that Obergefell didn’t apply because Puerto Rico is not a state.

Lambda Legal is busy fighting judges and other officials who are acting like Obergefell never happened.

IT WAS TWO YEARS AFTER THE SUPREME COURT RULED, in 2015’s landmark Obergefell v. Hodges, that same-sex couples had a fundamental right to marry, with all the many rights and responsibilities—including the right of both spouses to be recognized as parents to a child born during the marriage. And so Chris Strickland thought she would get to share custody of her two sons with her ex-wife, Kim.

After all, they’d raised the oldest (EJ*, 16), whom they adopted, side by side, even if Mississippi law a decade ago said that only Kim’s name could be on his adoption papers. And though Kim had carried their second son (ZS, six), whom they conceived via an anonymous sperm donor, Chris was actually the first to hold him after the doctor delivered him.

“They’re my sons,” says Chris, 44, a parking valet at a hospital in Pearl, Mississippi,outside Jackson. “I was there from day one. I cuddled EJ when he was sick and took him to doctors’ appointments, and I went to every medical appointment with Kim.”

So after Chris and Kim divorced in 2017 after 14 years together—they married in Massachusetts in 2009, six years before Obergefell made their home state of Mississippi recognize the marriage—Chris assumed that a Mississippi county judge would declare them joint custodians of their sons, despite Kim’s objections.

That's not what happened. The judge gave Chris in loco parentis status, ordering her to pay child support and granting her visitation—but no legal custody. “He told me that two women couldn’t make a baby and that there had to be a father out there somewhere,” she says. That meant she had no say in the boys’ medical or school decisions and no rights to them should something happen to Kim.

With Lambda Legal as counsel, the case is now pending before the Mississippi Supreme Court. But it’s just one example from several states where government officials seem to be defying the principles embraced in Obergefell, much in the way the 1973 Supreme Court Roe v. Wade ruling, which established a woman’s fundamental right to an abortion, has been chipped away at and challenged the past 44 years.

“The fundamental right to marry as vindicated by Obergefell is under attack,” says Lambda Legal Senior Counsel Camilla B. Taylor. “We knew we wouldn’t be able to sit back and rest after attaining this victory, and we have a tremendous amount of work to do. If we’re unsuccessful in the next few years, it’ll be hard to claw back victory.” According to Taylor, Obergefell is being challenged in two ways. The first is in cases such as Strickland’s in which state and local judges or other government officials are denying LGBT people rights that flow from marriage. For example, Lambda Legal filed lawsuits in Wisconsin, North Carolina and South Carolina, where officials refused to issue two-parent birth certificates to the children of same-sex couples.

“Trump is stacking courts with ideologues with a history of targeting LGBT people. We need to fight like hell right now.”

Lambda Legal also filed an amicus brief in a similar case brought by the National Center for Lesbian Rights against officials in Arkansas. The case went to the U.S. Supreme Court, which reversed the state ruling that it was okay to exclude one parent’s name from the birth certificate.

“Basically,” says Taylor, “the Supreme Court said, ‘We meant what we said in Obergefell.’” (The court’s newest member, Trump nominee Neil Gorsuch, dissented.)

“As long as states continue to deny same-sex parents dual inclusion on a birth certificate while extending that right to heterosexual couples even if one of the parents is non-biological, they are in violation of Obergefell,” explains Taylor.

Another example is death certificates. In recent months, Lambda Legal successfully litigated two such cases in which the state of Florida refused to list as “spouse” the surviving legal husband of a deceased gay man.

Obergefell has also been challenged by those who argue that their business shouldn’t have to serve samesex married couples equally. The U.S. Supreme Court will hear that argument this fall from counsel for a Colorado baker who refused to make a wedding cake for a same-sex couple on religious grounds. The ACLU is representing the gay couple.

“We’re hopeful the Supreme Court will treat this case the same way they’ve treated similar arguments involving discrimination based on race or sex,” says Taylor. “But it’s disturbing for them to take this case because usually they only take cases to resolve disputes among appeals courts, and every appellate court thus far has ruled in favor of samesex couples in such cases.”

Meanwhile, in Mississippi, Strickland and her lawyer, Lambda Legal Counsel Beth Littrell, await their case, whose argument they think is sound.

Obergefell recognized that among the benefits of marriage are parent-child relationships and they have to be extended on the same terms and conditions for same-sex married couples as for different married couples,” says Littrell. “Mississippi is trying to narrow that ruling.”

Says Strickland, “I didn’t want to be in this position, but if someone has to step up to the plate on this, it’ll be me.”

Her resolve is sorely needed right now. “The courts are only going to get more anti-LGBT in the years to come,” says Taylor, “given how Trump is stacking the lower and appeals courts with ideologues with a history of targeting LGBT people. We need to fight like hell right now.”