Predicting LGBT legal trends that will follow decision

By Bibeane Metsch-Garcia
U-M Law

Paul M. Smith, a prominent attorney in the fight for LGBT rights and equality, predicts that even if same-sex marriage is upheld by the U.S. Supreme Court in DeBoer v. Snyder, religion will be used to justify continued discrimination on the basis of sexual orientation.

Smith worries that the Supreme Court’s 2013 term case Burwell v. Hobby Lobby, which held that the Religious Freedom Restoration Act applies to corporations, might be extended to permit anti-gay discrimination on the basis of one’s religious views.

He noted that Justice Anthony Kennedy likely would not want to go in this direction.

Speaking at the University of Michigan Law School on Feb. 18 in a lecture sponsored by the Outlaws, Smith noted that Justice Samuel A. Alito Jr., writing for the majority in Hobby Lobby, was deliberately ambiguous about where the line of who can, and cannot, discriminate lies and what constitutes a compelling state interest that would prohibit discrimination.

Alito mentioned preventing racial discrimination as a compelling interest but did not mention protecting against bias based on sexual orientations, Smith pointed out.

Smith is the chair of the Appellate and Supreme Court Practice and co-chair of the Media and First Amendment and Election Law and Redistricting Practices at Jenner & Block LLP in Washington, D.C.

He clerked on the U.S. Supreme Court for Justice Lewis F. Powell Jr. and has argued before the Supreme Court 15 times.

He successfully argued Lawrence v. Texas, in which the court struck down sodomy laws in Texas and 13 other states —which, Smith noted, is the same number of states that currently do not allow same-sex marriage.

Smith recounted during his talk at Michigan Law how several people in the courtroom cried with joy as Justice Kennedy read his opinion in Lawrence from the bench.

Smith told students that, at the time of his last visit to Michigan Law in 2010, five states plus the District of Columbia allowed same-sex marriage, five of which had changed course in 2009.

A little more than four years later, 37 states allow same-sex marriage.

Initially, Smith told students, he was disappointed when the court denied certiorari in the same-sex cases last term but that he has come to appreciate the merits of waiting.

He explained that popular support for same-sex marriage increases each year by about 1 to 2 percentage points.

The additional time has also served as a “social experiment” in which “nothing happened” after marriages were permitted to go forward in Oklahoma, North Carolina, and other states in the federal appellate circuits that had upheld same-sex marriage.

This lack of disruption, Smith suggested, has given some members of the court confidence that, as Justice Ruth Bader Ginsburg recently stated, “the country is ready for a decision in favor of same-sex marriage.”

Petitioners in DeBoer are April DeBoer and Jayne Rowse, parents to three adopted children who are challenging Michigan’s ban on same-sex marriage.

After a victory in the Eastern District of Michigan, the Sixth Circuit reversed and upheld Michigan’s ban.

On Jan. 16, 2015, the high court certified two questions on which they will hear arguments later this term: Does the 14th Amendment require a state to license a marriage between two people of the same sex? And does the 14th Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Members of the Michigan Law community have been actively involved in litigating DeBoer.

One of the lead attorneys is Kenneth M. Mogill, who has been aided by student-volunteers Wyatt Fore and Abbye Klamann, both of whom have been involved since before the trial in the Eastern District of Michigan.

Smith anticipates a victory for DeBoer and Rowse and said that he would find it hard to imagine the justices changing their voting alignment in this case from their 5-4 decision in United States v. Windsor, in which Justices Kennedy, Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan were in the majority that struck down Section 3 of the Defense of Marriage Act.

He predicted that Chief Justice John G. Roberts Jr. will not change his vote to support same-sex marriage given his vote in Windsor.

Smith reiterated that even if there is a ruling in favor of same-sex marriage, the Hobby Lobby decision may have created an opening for continued discrimination on the basis of religion.

“Religion was used to fight back against the extension of civil rights to African Americans and women” in the past, he said, and he worries that religious opposition to same-sex marriage may be more intense and unavailing.

Smith shed light on the possibility that people who find homosexuality “sinful according to their mainstream denominations” may be able to argue that because of their religion they can discriminate under the Religious Freedom Restoration Act or a state analogue.

There may be a time when small hotels in the South can refuse to serve same-sex couples, he said.

The case is coming, he predicted, in which opponents of same-sex marriage will argue, “I should be able to put the government to the test of showing a compelling interest to force me to hire people who I think are sinful based on my religious beliefs.”

Even if same-sex marriage is upheld in DeBoer, Smith urged students to remember that “there will be plenty of other civil rights battles to be fought in the area of LGBT rights.”