Once We're Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination

Abstract

Undoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage broader protections for LGBTQ individuals beyond their marital relationships?

This Article begins from the perspective that the marriage equality movement is an increment in the longer process for securing legal protections for sexual minorities. Currently advancements in sexual orientation antidiscrimination have been less even, and now that marriage equality is finally secured, progress for protecting sexual minorities should navigate toward reforms reflected in federal anti-discrimination laws. Although many of the judicial victories in the marriage cases have been specifically effective toward recognizing the relationships of same-sex couples, there have also been some significant judicial strides from post-Windsor cases and Obergefell that could be instrumental for furthering progress in areas of sexual orientation anti-discrimination. This Article discusses how such judicial advances ultimately bolster autonomy rights in sexual identity that anti-discrimination laws, specifically Title VII, ought to protect, but currently do not.

Keywords: animus, dignity, immutability, autonomy, equality jurisprudence, Title VII, suspect classification, incrementalism, Supreme Court, antidiscrimination, lgbt rights, marriage equality, same-sex marriage, Obergefell v. Hodges