Fight for LGBT Americans’ equal rights goes on despite same-sex marriage gains
I hope your wedding dress or your tux wasn’t at the dry cleaners on Monday. Buried in an 89-page thicket of announcements posted to the supreme court website were seven single-line orders pertaining to the new court term. The justices had considered appeals in cases pertaining to same-sex marriage in five states – and declined to hear every single one.
There was no further comment. But the impact was momentous, and immediate.
Since all of the lower courts had found in favor of marriage equality, that meant that at a stroke gays and lesbians could marry in Indiana, Oklahoma, Utah, Virginia and Wisconsin. What’s more, each federal appeals court has jurisdiction over multiple states, and so by leaving the appeals decisions in place, the high court all but guaranteed a domino effect: marriage equality will come to every state covered by those appeals circuits.
Some such states, including Colorado and West Virginia, have now begun marrying gay couples. The governors of deep-red Kansas and South Carolina have said they will continue to fight in state courts, but they surely know the fight is futile, and in a few weeks a local court will seal the deal. Four same-sex couples have filed suit to have one of the decisions extended to Wyoming . They will, presumably, be able to honeymoon on Brokeback Mountain.
On Tuesday, there was another decision. The ninth circuit court of appeals, which sits in San Francisco and is the country’s largest by far, struck down bans on same-sex marriage in Idaho and Nevada. Nevada ( after some back and forth ) is now marrying gay couples; Las Vegas is hopping . Idaho, however, requested and received a stay from the supreme court, while it plans an appeal. Assuming this is just a procedural hurdle – and how could it not be, if five nearly identical appeals were just thrown out? – you will be able to get married there soon enough. Three other states under the jurisdiction of the ninth circuit – Alaska, Arizona and Montana – seem set for marriage equality once the dust settles.
Once all the shouting is over, the near-certain outcome will be 35 states, plus the District of Columbia, with marriage equality.
“So it’s pretty hard for me to believe they didn’t understand the practical impact. The dignity of Edie’s marriage had the same dignity as any other couple’s. And now the majority of Americans and states will be able to experience that themselves.”
Despite all this, we still do not know, once and for all, whether gays have a constitutional right to marry in the United States. To those watching from abroad, the whole thing must look incomprehensible. Our federalist system has required gay rights activists to fight in 50 court systems and 50 state legislatures, and the lowliest county clerks have thus been afforded their 15 minutes of digital fame.
A decade ago, Canada began its push for gay marriage with province-by-province court decisions – but there it ended, in 2005, with a satisfying act of parliament that closed the book for good. As of this week, it seems tantalizingly possible that the US could win marriage equality nationwide without a single legal or legislative decision to cap the battle. How did we get to this point from 20 years ago, or even 20 months ago? And how it is going to end?
‘Periods of creeping and leaping’
The sudden acceleration of marriage rights in America has paralleled a similar acceleration of public support for gay equality. Three out of five Americans now favor legal same-sex marriage, and that number climbs higher for young voters. But the speed of change belies long years spent laying the groundwork.
“That quickness really built on decades and decades of engagement, and that is the truer story of social change,” says Evan Wolfson, founder and president of the advocacy group Freedom to Marry. “Social change and civil rights advances go through periods of creeping and leaping. The arguments haven’t changed. What’s changed is the readiness.”
Historically speaking, marriage rights are a relatively new battleground. For many decades, campaigners for gay rights placed more importance on sexual freedoms, or health and employment concerns. Marriage was a minority issue, often advocated by conservative or religious gays and lesbians, such as the writer Andrew Sullivan , and dismissed by many as assimilationist.
Yet while conservative voices were advocating marriage as a means to de-queer homosexuality (to become “ virtually normal ”, in Sullivan’s phrase), Wolfson and others saw marriage as something much more powerful. For them, it was not just an end in itself. Marriage was an apparatus by which gays could prove their claim to social and civic equality, and thus win all the other battles that lay ahead – for employment rights, for housing rights, for protections against hate crimes, for fair age of consent laws, for freedom to serve in the military and, not least in a time of epidemic, for justice in healthcare.
“By fighting for the freedom to marry,” Wolfson explains, “we would be engaging a vocabulary that would help transform non-gay people’s understanding of who we are – in a way that would advance not only our claim on the freedom to marry, but our claim for full and equal participation in society.
“Marriage would be a powerful engine of transformation, in addition to being an important goal in its own right.”
( As the Guardian’s gay rights interactive shows , homosexuals still face discrimination in a host of areas nationwide. The federal government has failed for decades to pass an employment non-discrimination act .)
Marriage equality, in this way, is totally different from sexual equality. Sexual freedoms could be won with a mere appeal to privacy rights. Indeed that is exactly what happened in 2003, when the supreme court struck down the country’s remaining sodomy laws not because gays were equal to straights, but because all consenting Americans have the right to do what they like in the bedroom. Until last year, gays and lesbians had never won a supreme court case on the grounds that they deserved the equal protection of the laws that racial minorities, religious minorities or women enjoy.
But marriage, unlike sex, is an unavoidably public affair. Nancy Cott , the country’s leading historian of marriage (and a witness in multiple same-sex marriage cases), has shown that the right to marry has never been a private privilege, but a fundamental marker of civil equality across centuries of American history. Slaves could not marry, for example; after the Civil War, freed blacks had to fight to obtain marriage licenses across the south.
Before the early 20th century, women who married lost their legal independence, and could not enter contracts or own property. And the courts’ expansion of marriage rights has touched not only racial minorities and women, but also debtors, prisoners, the mentally disabled, and other groups once denied what the supreme court, in the miscegenation case Loving v Virginia , called “one of the basic civil rights of man.”
‘Any argument gay people are second-class citizens is absurd’
Marriage equality first came to Massachusetts in 2004, and proceeded state by state for a decade after. By 2013 the supreme court was ready to hear two cases. One, US v Windsor, sought to void the central plank of the Defense of Marriage Act, a federal law, passed in the 1990s, that denied gay couples married in any state the federal incidences of marriage, such as tax benefits or immigration rights. Another, Hollingsworth v Perry, aimed to strike down a ballot initiative banning gay marriage in California.
Windsor at first seemed like the easier but smaller case. Doma was so manifestly unconstitutional that the Justice Department no longer tried to defend it, and the court had a chance to throw it out on narrow states-rights grounds. Perry, brought by the conservative superlawyer Ted Olson (who chalked up a $6.4m bill ; Windsor was fought pro bono), seemed the more ambitious proceeding, since it explicitly sought to have gays declared equal under the law.
But the outcome was precisely the opposite. Same-sex marriage came to California, but only on a technicality . Doma, on the other hand, was struck down not on states-rights grounds, but in a rapturous ode to gay equality. It was Windsor, rather than Perry, which gave lower court judges the means to strike down all the state prohibitions on same-sex marriage that have fallen this year.
“If you’d told me back then that we’d see the pace of change that we’ve seen, I’d have told you to sober up,” Kaplan says. “But once the supreme court said that gay people, gay couples, have the same dignity as anyone else, than any other argument that gay people are second-class citizens is not just silly but absurd.”
The justices did not, of course, say gay individuals have the right to marry. They only said that already married gay couples deserve the equal protection of the laws. But in the hands of lower court judges, that distinction has been proved trivial.
“All that was at issue [in Windsor] were couples who were already married,” says Kaplan. “So they didn’t need to decide the question of gays who are not married. I may not be a rocket scientist, but if gay couples have equal dignity, then how can gay individuals not have equal dignity? It’s a matter of Platonic logic.”
In other words, while Windsor did not explicitly legalize gay marriage in all 50 states, the essence of the case did exactly that. That is not just Kaplan’s view, and the view of every appeals court since last summer. That is the view of Antonin Scalia, the hard-right supreme court justice who has fought gay equality for decades.
“How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia wrote in his sarcastic and wildly homophobic dissent in Windsor. He was exactly right .
Few court watchers had expected the supreme court to duck all seven marriage appeals, and to dismiss them without a word of explanation. But Ruth Bader Ginsburg, the court’s senior liberal and its canniest tactician, told an audience last month she saw “no need for us to rush” on the marriage cases, and the refused appeals clearly suggest that Ginsburg and her colleagues are crafting a long-term victory plan.
The decision not to hear appeals also suggests that John Roberts – the rightwing chief justice who dissented in Windsor, but in a more subtly than Scalia – knows marriage equality is inevitable, and would rather let the process play out without his involvement. (Remember the game theory here. It takes five justices to win a case, but only four justices to consent to hearing it: to grant certiorari , in supreme court-ese.)
So what does the endgame look like? Perhaps an appeals court – maybe the fifth circuit, which sits in New Orleans – will uphold a state gay marriage ban. Then the high court will have to take the case, and a majority of justices will vote to legalize same-sex marriage nationwide, confident that most of the country is already there. Or perhaps gay advocates will run the table at the appeals level. Then marriage equality will take hold nationwide without a big finish in DC.
In that case, the woman who will go down as the champion of gay equality in America, who almost-kind-of-sort-of guaranteed gays equal justice under law, is an 85-year-old platinum blonde who has become the most unlikely and most fabulous of gay icons .
Edie Windsor wanted her own marriage, her own love, treated with the dignity afforded to everyone else. She got much more than that.
“Ever since the decision, from then to today, Edie pretty much lives on cloud nine,” says Kaplan. “She literally cannot leave her house without being thanked and asked for selfies and autographs. She totally understands the implications. And she’s thrilled.”
Amanda Holpuch contributed reporting.
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