The struggle for full LGBT equality is far from over, concluded a panel of policy experts at a well-attended discussion sponsored by the American Constitution Society, Outlaw, and the Family Law Society. “Trickle-down civil rights do not work,” warned Pennsylvania State Representative Brian Sims. “Marriage equality does not automatically lead to other rights.”

Sims shared the stage with Temple Law Professor Leonore Carpenter and with Andrea Anastasi LAW ’14, who does advocacy and policy work in the area of LGBT rights.

Professor Carpenter opened the discussion with an analysis of the opinion in Obergefell v. Hodges, the landmark Supreme Court case that established “a national requirement that states issue marriage licenses to same-sex couples and honor same-sex marriages licensed by other states.” Noting that the opinion focuses almost exclusively on substantive due process, Carpenter expressed concern that the lack of an equal protection analysis left unanswered many questions about the scope of protection LGBT individuals could expect under the 14th amendment.

What the opinion does protect, in Carpenter’s view, is the institution of marriage. Calling it a “love-letter to marriage,” Carpenter remarked that Obergefell elevates marriage as a social institution and even goes so far as to stigmatize unmarried people. “It’s actually a conservative approach to a progressive legal issue,” she said, noting also the concern raised in the dissent by Justice Thomas that the opinion establishes a positive right to a government entitlement, as opposed to a negative right to freedom from government intrusion. “Have we,” she asked, “enshrined marriage as an entitlement?”

Anastasi also expressed concern over “vulnerabilities in the 14th amendment framework” of the opinion, in particular the rise of religious freedom arguments as justifications for public and private discriminations and the possibility that LGBT claims under the 14th amendment would be trumped by religious expression claims under the 1st amendment. She advocated for the development of claims under the 1st amendment on the theory that coming out, or the process of claiming an LGBT identity, was protected speech and a political act. She noted that the current level of protection under the 14th amendment is limited, both because it applies only to marriage and because LGBT status is not viewed as a suspect class. Instead, she argued, “a 1st amendment approach would make LGBT issues constitutional, not political, would neutralize suspect class issues, and would ensure the jurisdiction of courts, not legislatures.”

Both Sims and Anastasi worried about the lack of protection on a wide variety of issues such as housing, employment, and education. Sims observed that there are no state-wide LGBT civil rights in Pennsylvania other than marriage. “In 70% of the state, LGBT Pennsylvanians have no additional civil rights – no protection from discrimination in housing, in employment, in education. We still live in a state where people kill themselves because they have no right to be who they are.”

Fielding a question about Obergefell’s utility in advancing LGBT rights, the panelists agreed that it does not offer much. Citing a lack of attention to equal protection “reminiscent of Lawrence v. Texas,” Carpenter said that the decision fails to address the issue of what level of scrutiny should be applied to claims of LGBT discrimination. Instead, she argued, “this decision will be used to further centralize the institution of marriage, to stigmatize unmarried people, and possibly to help the cause of polygamists.”

While disagreeing with Carpenter about the decision’s potential support for polygamy, Anastasi worried about public misunderstanding of what the decision actually accomplishes – and what it has left undone –  but cited its eloquence as inspiration and momentum for the distance ahead.

Sims, however, expressed concern about lost momentum as a result of Obergefell, while conceding that the opinion “is beautiful to read, and opens up conversations about dignity that are important to have.”

Carpenter closed the panel by encouraging those interested in the future of the LGBT movement “to consider not just what we litigate, but how we litigate. Impact litigation and policy reform dominate our current approach, but what we lack are direct service providers. Consider – when you get rights, what do you have without affordable, competent representation? What do you do if you need to enforce your rights? How do we make sure that rights are equally available regardless of income or location? It’s incumbent upon students to consider these things as well.”