So, after my Obergefell decision rant, David Ross did what I hoped someone would do and asked the next question, "Okay, if you're unhappy with how Obergefell was decided, how should it have been decided? What would you have done differently?" And, although I answered him in the comment thread, about 7 paragraphs in I realized that there was enough content in my response for a full post...so I reprinted it here! There are a few slight changes moving from the comment space to the posting space, but overall content is the same.
Sexual Orientation as a Protected Class
Sexual orientation as a protected class would have been the right way to resolve the issue. Sexual orientation hits all of the issues that make a protected class make sense: immutable characteristic, characteristic is unrelated to issue in question, etc. I understand that Kennedy didn't want to open the floodgates to all of the other protections that would come along with protected class status (workplace discrimination, housing discrimination, adoption/child custody rights, etc.), but that's the whole reason I found the decision to be intellectually vacuous. If "dignity" is the reason that I should be allowed to marry my same-sex partner (should he ever appear), it pretty necessarily follows that "dignity" should also underpin my rights in all of those other arenas as well.
Of course, at that point you are moving away from substantive due process towards an equal protection argument. Creating new protected classes judicially is frowned upon (and I believe that a legislative solution would have been best and was, in fact, inevitable absent the ruling), but there's a good argument for doing so here. My challenge to Kennedy regarding the ruling is to explain the discrepancy. Why does my dignity compel granting marriage recognition but none of the others? It just doesn't make sense!
Gender Discrimination
I'm 50/50 on a gender discrimination perspective. On the one hand, it isn't obviously a gender discrimination issue. On the other, not recognizing it as a gender discrimination issue throws you into the Pace v. Alabama mindset, and that obviously wasn't good for anyone. Ultimately, I prefer the granting of protected class status for just these reasons.
But, the gender discrimination issue also circles back to where I felt the ruling had its shortcomings. When considering gender discrimination from a trans- perspective, it's so much easier to win because the standards for violating gender norms are so much easier to prove. When it's from a sexual orientation as opposed to gender identity perspective, things get a little muddier. All in all, we should be out there advocating for true equal rights and ONLY non-discrimination legislation is going to move that ball across the goal line from a political/legal perspective.
Yet Again, Rich, White Males Were the Real Winners
And, ultimately, that's my other big headache with the ruling. Look, marriage was the signature issue. We played an ace early in the game and now the rest of our hand isn't looking too hot. Because marriage was a great signature issue for the GLBT movement in a few ways that other salient issues aren't. Everybody at least considers the possibility of marriage. It's something that everyone can relate to. Number one, that means that straight people were natural allies because they could identify with the issue. That's huge and that's why there were so many straight people out there supporting the GLBT community on this issue.
But, when you consider the GLBT discrimination issues from a socio-economic perspective, marriage was also the issue that was important to everyone in the GLBT community. You know WHY Kennedy cares about gay marriage rights but not about sexual orientation discrimination? It's because he can see (and, if some rumors are true, actually did experience) the discrimination. But, guess what, employment discrimination isn't something that happens to educated and affluent homosexual men--especially white homosexual men. To quote a senior staffer from the Human Rights Campaign on the issue of GLBT rights, "Twenty years after we get sexual orientation equality, there will be a mass exodus of white, gay men from the Democratic Party." And she's right. So what happened WAS a huge victory is you're "lucky" enough to be the part of the minority that's well-educated and affluent and not going to suffer the other types of discrimination. If you're not? Well, the people who essentially only faced the marriage discrimination issue took their win and left you holding the bag on all of the other issues.
We probably could have gotten a general non-discrimination act related to sexual orientation passed in the next 5-10 years before this ruling. That would have covered marriage AND everything else. With the ruling we got today, I'll push my estimate on when we could see something like blanket non-discrimination protections closer to 25 years.
To summarize: Protected class would have been the way to go and then use equal protection analysis. Marriage is a pyrric victory though because it leaves behind the other discrimination issues that affluent members of the GLBT community are unlikely to face (and therefore care about) and that most non-minorities don't face (and therefore can't empathize with), leaving those who do face workplace, adoption/child custody/etc. discrimination waiting for even longer. I'd hold off on my ability to get married to protect them across the board.
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