» A Fresh Look at the Legal Landscape for LGBTQ Couples

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This article was written by WeddingWire Education Expert, Kathryn Hamm.

With the advent of marriage equality in June of 2015, the need for my “legal landscape” updates came to an almost complete stop. Gone was the need to help wedding professionals understand the nuances around the kinds of choices that same-sex couples were making when planning the weddings based on where they lived and where their unions would be legally recognized.

As 2017 comes to a close, however, there are a few important legal landscape updates to keep in mind. Highlights include: the recent same-sex marriage postal poll in Australia; the addition of legal marriage in non-U.S. locations like Finland, Malta and Germany; and the forthcoming Supreme Court hearing on December 5, 2017, Masterpiece Cakeshop vs. Colorado Civil Rights Commission.

Is Marriage Legal in Australia Or Not?

Australia has been engaged in a debate about same-sex marriage that has captured the attention of interested parties far beyond its shores. Its neighbor, New Zealand, recognized the opportunity for destination weddings and legal elopements when it recognized marriage in 2013. At last, the Aussies have begun to catch up and, in keeping with its political process, conducted a postal survey to gauge the interest of the general population. The results of that survey, after a high-profile and contentious months-long round of campaigning by those in favor of and against same-sex marriage, revealed that a majority (61%) of Australians favor same-sex marriage.

The vote-by-poll, however, is non-binding, and it is now up to the Prime Minister, Malcom Turnbull, and the Parliament to convert the majority opinion into law. He says he intends “to make their wish the law of the land by Christmas.” Presuming that this does occur as promised, wedding professionals and the hospitality industry expect to see business expand as same-sex couples, including this couple of 50 years, look to get hitched in their home country in 2018.

Germany, Finland and Malta Celebrate Marriage Equality

In 2001, the Netherlands was the first to recognize same-sex marriage, and, since then, 19 additional countries have followed suit, including Germany, Finland and Malta in 2017. Our global WeddingWire family offers inclusive resources for same-sex couples regardless of legal recognition, but proudly celebrates marriage equality with same-sex couples in most of the countries WeddingWire currently serves, including Spain (2005), Canada (2005), Argentina (2010), Colombia (2016), Brazil (2013), France (2013), and Uruguay (2013); and those jurisdictions in the United Kingdom, Mexico, and Italy where same-sex marriage is recognized.

Masterpiece Cakeshop & The Question of Service Refusal

Though the Supreme Court may have settled the question of marriage equality on June 26, 2015, it did not create a right for LGBTQ individuals and couples to be free from discrimination in other areas of their lives.  While many states have statutes that prohibit discrimination in housing, education, employment or public accommodations (hotels, restaurants, etc.) on the basis of sexual orientation, many others don’t.  An attack on one of these state statutes is being carried out in the context of the simmering debate about whether or not wedding professionals should be compelled to serve same-sex couples if they oppose same-sex marriage.

Enter the case of Jack Phillips of Masterpiece Cakeshop vs. the Colorado Civil Rights Commission, which will be heard by the Supreme Court of the United States on December 5. Richard Wolf of USA Today wrote of the long odds of the “tight-knit fraternity” of “same-sex marriage foes” in this hearing as they attempt to argue successfully that they have the right to refuse to serve same-sex couples seeking products and services for their weddings. Experts point out that the Colorado Anti-Discrimination Act  is very clear that businesses cannot discriminate against a person based on sexual orientation.   And, “at issue,” says the Center for American Progress, “is whether the First Amendment’s free speech and free exercise (of religion) clauses permit a business that is open to the public to refuse service to groups of people, in violation of laws prohibiting discrimination.”  It’s worth noting that arguments regarding free exercise of religion are not new, but the free speech argument represents a new approach.  Taken to its extreme, it means many businesses who claim that their work is “expressive,” including many in the wedding industry like photographers, would not be subject to anti-discrimination laws.

Beyond the consideration of this question in a court of law (the highest court in the land, no less) is its consideration in the court of public and industry opinion. Here, there is clear evidence that a majority of Americans (60%) do not think that wedding businesses should be allowed to refuse to serve same-sex couples, including an even higher majority in the segment of wedding professionals (64%). The question, asked differently in 2016 by WeddingWire, found that the vast majority (89%) of wedding professionals said that they are ready, willing and able to serve same-sex couples.

It is not surprising, then, that WeddingWire would decide to sign on to the HRC-led amicus brief, which argues that wedding businesses must be open to all. Said Timothy Chi, CEO of WeddingWire, “I wanted to clearly communicate WeddingWire’s position and underscore, in no uncertain terms, what we stand for as a company. WeddingWire opposes discrimination of any type. Love is love, and we support the right that all couples have to marry. Our company has a long history of supporting equal rights, equal opportunity, and equal treatment, with dignity and respect that is uncompromised. As such, WeddingWire supports the arguments of the respondents, the Colorado Civil Rights Commission and Charlie Davis and David Mullins.”  WeddingWire has also expressed its support for the Equality Act, a national law that would extend the protections under the Civil Rights Act of 1964 to sexual orientation and gender identity.

Regardless of what the Supreme Court decides to offer as legal guidance to address the unfinished business of the 2015 Obergefell decision, engaged couples and wedding professionals will still have to lead the way in resolving this conversation.

And I believe it’s possible for love, compassion, and market forces to shape the resolution beyond the guidance the law offers us, and to pave the way for same-sex couples to enjoy both the freedom to marry and the freedom to be served.