Kim Davis case shows marriage ruling falls short

Recently, U.S. District Court Judge David Bunning ruled Rowan County Clerk Kim Davis's removal of her personal authorization from marriage licenses was not sufficient to find her in contempt of his previous order not to interfere with their issuance. Many will recall Davis's actions were a response to the U.S. Supreme Court's ruling in Obergefell v. Hodges, which held same-sex couples had the right to marry in every state in the United States. This news lead me to reflect on the Obergefell decision and I have come to a conclusion. Obergefell is a failure.

As a supporter of equal rights for lesbian, gay, bisexual, and transgender people, I was initially thrilled about Obergefell. It is easy to feel good about letting people marry the people they love. The problem is the Supreme Court's decision left more questions unresolved than it answered.

There is a long way to go before LGBT people achieve equality in the United States. For example, in 28 states a person can legally be denied employment based on their sexual orientation. In at least 28 states, LGBT individuals can legally be denied housing. A mere 19 states have laws prohibiting LGBT children from school bullying as a result of their sexual orientation. Two states - Arkansas and Tennessee - have state laws prohibiting the enforcement of local protections.

In cases like Obergefell, the Supreme Court has the power to apply broad constitutional principles reaching far beyond the particular parties to the lawsuit before them. In Obergefell, the question was about dividing people into groups - people romantically attracted to members of the same sex on one side, and everyone else on the other. Any time a law divides people into groups, caution is warranted because the Constitution's Fourteenth Amendment requires, among other things, all people are equally protected under the law.

The Supreme Court has developed three tests for equal protection. Under ordinary circumstances, question is if there is there a rational connection between the purpose of the law and the division of the people. Laws the divide people on the basis of age normally fall into this group. On the other hand, if a group of people has historically been subject to discrimination or has had limited power in the past, the question becomes if the law is narrowly tailored to meet a compelling government interest. Laws concerning race generally fall into this group. In between these two is a third category reserved for 'quasi-suspect” classes such as gender. The question here is if a law furthers an important government interest in a way substantially related to that interest.

While the court's decision in Obergefell is not solely grounded in equal protection, the court certainly relied on it as a basis for reaching its conclusion. It did so without stating which test, which level of scrutiny it was applying. Establishing a level of constitutional scrutiny would not have automatically resolved all legal issues facing the LGBT community, it is more than an academic exercise. By being able to apply a known level of constitutional scrutiny, LGBT people would be in a better position to advocate for the application of existing non-discrimination laws. They would be better able to argue for the amendment of existing laws to include LGBT protections. Establishing a known level of constitutional scrutiny will serve to simplify, and potentially lessen, future litigation over LGBT issues as policy makers would know which laws and regulations are likely to pass muster.

The Supreme Court could have done all of this, but it failed to do so. And for that reason, Obergefell missed the mark.

' Scott A. Shoemaker is an attorney in Cedar Rapids who practices, among other things, in the area of civil rights law.