The Implications of the Defeat of the Defense of Marriage Act

After DOMA – Cultural and Legal Changes Ahead?

The Commerce Clause was given a rather wide interpretation in providing the Civil Rights Act of 1964 with the teeth thought necessary to prevent businesses from discriminating against Black Americans. Now that Supreme Court has found Section 3 of the Defense of Marriage Act (DOMA) unconstitutional, will the decision be used in a manner similar to the Commerce Clause to leverage legal action against businesses, property owners, churches, schools, or organizations that refuse to recognize homosexual marriage?

The Overturn of DOMA – the Shape of things to Come?

In 2008, Guadalupe Benitez sued her Christian doctors who refused to artificially inseminate her after learning she was a lesbian and having treated her for some time with fertility drugs. The Supreme Court of California sided with Benitez, ruling doctors cannot deny treatment to homosexuals and lesbians due to personal or religious beliefs.

There is also the story of Harriet Bernstein and Luisa Paster. After meeting at a retreat in the Poconos, they developed a relationship and eventually decided they wanted to wed after New Jersey legalized civil unions. Bernstein wanted to exchange vows in an outdoor pavilion commonly used for Methodist Bible studies and church services. When their request was denied, they contacted the New Jersey Division of Civil Rights claiming they were unlawfully discriminated against. Their attorney argued that, just as a restaurant can’t refuse service to a Black customer, the owner of the pavilion could not refuse use of the property to Bernstein and Paster.

Businesses, Retailers, and Property Owners

If the examples mentioned above are any indication of emerging cultural and legal trends – and there are many more like them as a simple Google search will reveal – the legal profession can expect an increase in lawsuits alleging discrimination against homosexual couples. Similar to what happened during the Civil Rights Era, homosexuals and lesbian couples will likely find property owners that do not want to rent a room to them; a wedding planner or cake maker that refuses their business; or a church that refuses to allow them the use of their property for a ceremony.

Oppositely, businesses, property owners, and churches will likely push back against attempts to make them participate in something they object to, usually in terms of the First Amendment protection of free speech. If homosexual and lesbian couples are considered “officially married in the eyes of the State,” it will become increasingly difficult to deny them the same prerogatives as heterosexual couples in these areas of life, business, and property use.

Schools – Sex Education and Parental Rights

Sex education in public schools has been a hotly contested issue ever since Kinsey disciples and inspired advocates exerted institutional power in the medical, psychology, and education professions to advance so-called sex education. While not all sex education programs are the same, many have their roots in the Sexuality Information and Education Council of the United States (SIECUS), a creation of followers of Alfred Kinsey and his views on sexuality.

SIECUS has influenced thinking at the level of the United Nations Educational, Scientific and Cultural Organization (UNESCO). Critics of UNESCO’s “International Guidelines on Sexuality Education” claim it seeks to expose children as young as 5 to the concepts of masturbation and, in later years, to oral and anal sodomy. As more parents learn about these kinds of sex education programs in their child’s school, legal action may be taken if schools move in the direction of what has already happened in England where parents are denied the right to prevent their children from being exposed to these programs.

Possible Changes over the Next Few Decades

Although few on the political left or right want to talk about it, the overturning of DOMA may pave the way for the legalization of polygamy and incest. If the courts have decided that there is, in principle, no reason why same sex couples can’t marry, what reason is there to deny the same right to adult brothers who want to wed or a collection of couples who prefer a polygamous lifestyle? Given the Court’s apparent cultural evolutionary view of things, it may be only a matter of time before legal action is brought by these other groups as well.

In the end, civil rights attorneys, family law lawyers, estate planning attorneys, even employment law attorneys can expect an ever-increasing number of cases related to the recent decision to essentially legalize same sex marriage.

And, what will happen if an attorney refuses to represent one of these couples based on their own conscience?