Kim Davis’s Kentucky grandstanding is not the last word when it comes to same-sex marriage.
While the issue of whether same-sex couples can marry is constitutionally over, looming on the horizon, including in Minnesota, are other battles regarding discrimination against lesbian, gay, bisexual and transgender individuals including questions about employment, public accommodation, and housing discrimination. What will be fascinating to watch is how the Minnesota Human Rights Act could be deployed in this next stage of the fight over the legal protections for same-sex couples.
First, consider what the U.S. Supreme Court actually ruled in Obergefell v. Hodges. The court held that state laws that banned same-sex marriage either by refusing to perform them or recognize their validity when performed in another state violated the Fourteenth Amendment’s Due Process clause.
Writing for the court, Supreme Court Justice Anthony Kennedy indicated that marriage is a fundamental right that had long been held to be protected for opposite-sex couples. In his opinion he gave several reasons for why this right should also apply to same-sex couples, or at least not be denied to them. While the opinion suggested some basis in the Equal Protection Clause, the core was a due process argument because it was arbitrary and capricious to recognize opposite-sex but not same-sex marriages. At no point did the court declare that members of the LGBT community or opposite sex couples were “suspect” classes in the way that people of color were, or that laws targeting these individuals deserved some form of heightened legal scrutiny.
Although the Obergefell decision is a victory for same-sex marriage, it fell far short of being a decision that was a comprehensive civil rights victory. By not grounding the decision firmly in the Equal Protection Clause, it left open issues about discrimination and possible religious defenses.
Specifically, could a person invoke religious objections in refusing to employ someone who is a member of the LGBT community or is in a same-sex marriage or relationship? Could a business establishment refuse to serve such individuals? Could a landlord refuse to rent to such individuals? None of this was answered by Obergefell.
The Kim Davis matter was easy – she was a public official sworn to uphold the Constitution and her duty was to perform marriages. Refusal to do this was illegal and the federal judge and Kentucky were more than accommodating to her. But rooting out state discrimination is different from private discrimination, and this is the next battle.
The 1964 Civil Rights Act along with the Fair Housing Act of 1968 addressed many of these issues across the nation. The former makes it illegal for private parties to refuse to hire, promote, or serve individuals based on their race, color, religion, and sex, among other reasons. The Fair Housing Act bans the discrimination against the same group of people when it comes to leasing of apartments and mortgage financing, but it also extends the protection to family status.
Not included in either act is discrimination against same-sex couples and members of the LGBT community.
Despite Obergefell, left open is the question of whether private Minnesota businesses or private landlords could refuse to hire, serve or lease or sell apartments, condos, or homes to same-sex couples, whether married or not. Enter the Minnesota Human Rights Act.
The act (Minnesota Statutes 363A.02) makes it illegal in employment, housing and real property, public accommodations, public services, and education to discriminate because of race, color, creed, religion, national origin, sex, marital status, disability, status with regard to public assistance, sexual orientation, and age.
The MHRA declares as public policy that the state should be free from discrimination because “it threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.” This act is potentially a powerful piece of legislation yet its legacy has been underwhelming at best, and its usefulness against sexual orientation discrimination effectively null. For reasons that remain perplexing it was not invoked to challenge any LGBT discrimination in Minnesota, or at least there are no cases of notable record when it comes to its use.
In addition, the Minnesota courts have not done a very good job using the act to combat marital status discrimination. For example, in State v. French, 460 N.W.2d 2 (Minn. 1990), the Minnesota Supreme Court ruled that the act did not protect an unmarried opposite-sex couple when private landlords refused to rent to them based on their religious views.
While an administrative law judge ruled that the refusal to rent to them was discrimination based on marital status, the court indicated that the MHRA did not intend to protect unmarried couples from housing discrimination on the basis of marital status. Moreover, the court also pointed to the protection of religion (conscience) in the Minnesota Constitution (Article I, Section16) as well as the anti-fornication law (for unmarried couples), which was still on the books at the time, as the basis for its decision.
In effect, landlords could invoke religious objections and a state law banning sex among unmarried individuals as a defense to why they did not have to rent to an unmarried opposite sex couple, even if the MHRA had intended to bar discrimination based on marital status (which it did not).
French is a strange decision, serving as a potential impediment when it comes to LGBT and same-sex discrimination issues looming. Yes, the state anti-fornication statute is gone, but how does one deal with the state constitutional protection for religious conscience, where the Minnesota Supreme Court has said that this clause gives more protection for religious liberty than the First Amendment, and the French claim that MHRA does not protect unmarried couples? Interesting questions abound.
Assume a landlord on religious grounds refuses to rent to a same-sex married couple. Will the Minnesota Supreme Court use the MHRA to force the landlord to rent to them by arguing it is discrimination based on marital status or sexual orientation? Or, will the court side with the landlord by arguing it is religious discrimination or a violation of the Minnesota Constitution?
Similar questions could be asked about employers who refuse to hire or serve individuals in same-sex marriages. Would the court say there is no indication that the Legislature meant to protect same-sex couples when it banned marital status discrimination in the MHRA? All of these are possible arguments and outcomes.
It is only a matter of time before these issues are litigated. They are the next step in the battle to end discrimination against members of the LGBT community. It will be interesting to see how the Minnesota courts handle these questions.
David Schultz is a professor of political science at Hamline University in St. Paul.