Image: Professor James Dwyer
Image: Professor James Dwyer

James Dwyer is the Arthur B. Hanson Professor of Law at William & Mary Law School where he teaches family law, youth law, trusts and estates, and law and social justice. He is an expert on family law and adoption in the U.S., having written a textbook, four monographs, numerous law journal articles, and many appellate briefs in the field, and having taught the subject in U.S. law schools for sixteen years. For more information on Professor Dwyer visit his faculty profile.

Last month Americans across the country celebrated the Obergefell v. Hodges SCOTUS decision making same-sex marriage legal nationwide. While a major advancement for same-sex couples and turning point in American history, officially declaring marriage a universal right, the decision has not marked an end to the marriage debate on a social level. According to a recent Associated Press-GfK poll, Americans remain divided on the SCOTUS ruling with 39% approving the decision, 41% disapproving, and 18% ambivalent.

The divided response among the American people is one many LGBT activists anticipated and that some fear could undermine the momentum of the LGBT Movement. As news coverage of the landmark decision wanes and stories of opposition follow, some LGBT proponents worry that public attention could become diverted by states arguing the ruling and seeking new ways to circumvent LGBT equality, thereby undermining the unifying symbolism of the decision and limiting the LGBT communities ability to generate social mobilization for other important legal issues.

I recently spoke with James Dwyer, Professor at William & Mary Law School and active proponent of the LGBT Movement, regarding his take on the SCOTUS ruling and why some LGBT activists are concerned it could detract from greater fights for legal and social equality that remain.

A double-sided ruling

While a personal and legal victory for same-sex couples, Dwyer said the Obergefell v. Hodges decision may not guarantee the social acceptance that many have come to associate with the same-sex marriage debate.

“The decision is as much a loss as it is a victory,” said Dwyer. “It ends the struggle for legal marriage, but it also precludes a majoritarian decision to treat sexual minorities as equals. Only the latter could constitute an expression of the societal respect that was a core aim of the Movement.”

Professor Dwyer argued this point in a recent paper published in SMU Law Review titled “Same-Sex Cynicism and the Self-Defeating Pursuit of Social Acceptance Through Litigation.”

“An important point I make in the article is that there is so much less at stake today in getting legal marriage than there was twenty years ago. What is arguably most important today is the symbolism, the message of social acceptance, and of dignity that sexual minorities want and deserve. Courts cannot give that to them. Court decisions send the opposite message: you are not respected by the people of your state, and therefore we have to force them to do something.”

According to Professor Dwyer, given the attention and traction that the LGBT rights community has generated regarding the issue of marriage, majority rulings for same-sex marriage at the state level were likely to come in the near future.

“There’s great pressure on state legislatures these days to support gay rights. So that would likely happen throughout the country within ten years, through legislative reforms or popular referenda, as there recently was in Ireland, and it would be a real victory socially for gays and lesbians,” he said. “The court decision puts an end to that discussion and concludes that kind of political action.”

Professor Dwyer said, while he is hopeful that states will embrace the same-sex marriage ruling, he fears same-sex couples may face a difficult road ahead as areas of the country that have not yet come to accept same-sex couples challenge the ruling as a “threat to religious freedom.”

Dwyer believes same-sex marriage could have been attained in a more democratic way. If the same-sex marriage ruling had not gone through he said, “there would of course be dismay and protests, but I think the most wonderful thing would happen. Hundreds of thousands perhaps millions of people around the country would start agitating with their state legislators, as I have, to amend state laws immediately and enact same-sex marriage politically. That would be the most wonderful thing that could happen on this issue for this country.”

While the same-sex marriage debate has come to the forefront of the LGBT movement, according to Professor Dwyer there are many in the LGBT community who wish focus was being placed elsewhere.

“It’s interesting that the same-sex marriage debate has taken on disproportionate significance,” said Dwyer. “There are many gays and lesbians who would prefer that the movement focus on arguably more important but less glamorous legal changes, such as new protections against discrimination in employment and housing.”

For many LGBT couples questions over parental rights remain as well, as the SCOTUS ruling will not offer protections to same-sex couples with children.

“The thing is, nothing necessarily follows a victory for the plaintiffs other than that states - if they are going to issue marriage certificates at all - must now do so for same-sex couples. But it doesn’t follow straightforwardly that they must treat same-sex married couples the same in every way that they do heterosexual couples,” Dwyer explained. “Unfortunately, with the ruling, we might see some Bible Belt state, for example, change its adoption laws to say only opposite-sex married couples may jointly adopt or effect a step-parent adoption, and not same-sex married couples. It’s not clear that anything in Obergefell would speak directly to the constitutionality of such discrimination among married couples.”

Though, Dwyer pointed out that in states where some parental legal matters are presently based on the marital status of adults, legislatures would have to take action to exclude same-sex couples. “In that case legislative action is generally more difficult as a practical matter than inaction,” he explained.

Dwyer said moving forward LGBT activists will have to stand together to push for continued change.

“The Movement might have expended the American public’s good will toward sexual minorities on this one issue and that may mean a lost opportunity to muster public support for other issues,” he said.

As lawmakers now push for competing bills that could either make it easier or markedly more difficult for people to discriminate against the LGBT community, LGBT activists must continue to stand together to keep the attention of the American people on the issues of equality that remain.

Danielle Padula
This post was written by Danielle Padula, Community Development