Photo: 1988 ACT UP protest at FDA headquarters (J. Scott Applewhite/AP)
By a 5-4 majority, the U.S. Supreme Court ruled today that laws denying same-sex couples the right to marry violate the “due process” and “equal protection” guarantees of the Fourteenth Amendment to the Constitution. With or without the court ruling, full-scale marriage equality was an inevitability thanks to rapid trans-ideological generational change in how this issue was perceived; today’s decision simply accelerated the outcome.
All the legal debates over the ruling are predictable and banal. Most people proclaim — in the words of Justice Scalia’s bizarre and somewhat deranged dissent — that it is a “threat to democracy” and a “judicial putsch” whenever laws they like are judicially invalidated, but a profound vindication for freedom when laws they dislike are nullified. That’s how people like Scalia can, on one day, demand that campaign finance laws enacted by Congress and supported by large majorities of citizens be struck down (Citizens United), but the next day declare that judicial invalidation of a democratically enacted law “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
Far more interesting than that sort of naked hypocrisy masquerading as lofty intellectual principles are the historical and cultural aspects of today’s decision. Although the result was expected on a rational level, today’s ruling is still viscerally shocking for any LGBT citizen who grew up in the U.S., or their family members and close friends. It’s almost hard to believe that same-sex marriage is now legal in all 50 states. Just consider how embedded, pervasive and recent anti-gay sentiment has been in the fabric of American life.
In the 1970s — just 40 years ago — the existence of gay people was all but unmentionable, particularly outside of small enclaves in New York, Los Angeles and San Francisco. If your first inkling of a gay identity took place in that decade, as mine did, you necessarily assumed that you were alone, that you were plagued with some sort of rare, aberrational disease, since there was no way even to know gayness existed except from the most malicious and casual mockery of it. It simply wasn’t meaningfully discussed: anywhere. It was so unmentionable that Liberace, of all people, long insisted to his fans that he was a “bachelor” due to his inability to recover from his tragic break-up with his fianceé, the Norwegian figure skater Sonja Henie. With exceedingly few exceptions, openly gay figures in politics, sports, or entertainment were nonexistent (that is one reason why one of my childhood heroes was Martina Navratilova, who in the early 1980s came out as a lesbian despite being a young female immigrant from the Soviet bloc to the U.S., faced with the certainty of losing enormous amounts by being one of the few public figures to do so: she even had a trans woman as her coach).
In the 1980s — just 30 years ago — the U.S. held its first-ever sustained, serious public discussion of homosexuality. But that discussion was forced by the advent of a hideous, terrorizing, mysterious disease, which — in the public mind and the mind of many young LGBTs — came to define what it meant to be gay. Even then, as thousands of Americans were dying, the taboo against public discussions of homosexuality was so potent that politicians like Ronald Reagan and Ed Koch were petrified even of discussing this public health crisis, allowing it to grow and metastasize for years with almost no governmental mobilizing against it. In 1986, the U.S. Supreme Court upheld the right of states such as Georgia to criminalize gay sex and arrest and prosecute those who engaged it, on the ground — in the words of Chief Justice Berger — that “there is no such thing as a fundamental right to commit homosexual sodomy” and that “condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.”
In the 1990s — just 20 years ago — anti-gay sentiment was so widespread that Bill Clinton signed two grotesquely bigoted and damaging laws: “the Defense of Marriage Act,” which barred the federal government from offering any benefits to same-sex couples (including crucial immigration and survivor rights), and “Don’t Ask, Don’t Tell,” which codified the ban on LGBTs serving in the military. DOMA passed the Senate on September 10, 1996 — less than 20 years ago — by a vote of 85-14, with the support of every Republican as well as people like Joe Biden, Chris Dodd, Pat Leahy, Patty Murray and Paul Wellstone. In 1992, the state of Colorado actually enacted a constitutional amendment — Amendment 2 — overturning all existing local laws and banning all future ones that outlawed anti-gay discrimination. Gallup never polled on same-sex marriage until 1996, and when it did, found that Americans opposed it by a whopping 68-27 percent majority.
In the 2000s — just 10 years ago — opposition to gay marriage was so pervasive that every state referendum on the question rejected it. Putting it on the ballot became a vital GOP strategy for winning elections, a tactic engineered by then-closeted gay GOP Chairman Ken Mehlman, who latercame out and apologized. It was only in 2003 — exactly 12 years ago today — when the Supreme Court reversed its 1986 ruling and held that thecriminalization of gay sex is unconstitutional (and even then, only by a 5-4 majority) — meaning that it’s only been 12 years that gay people have had the right to have sex in America without being prosecuted for it. In both the 2004 and 2008 election, the presidential nominees for both parties were adamantly opposed to same-sex marriage.
In 2008 — just seven years ago — Barack Obama said at an event at Rick Warren’s church: “I believe that marriage is the union between a man and a woman. Now, for me as a Christian, it is also a sacred union. God’s in the mix. . . . I am not somebody who promotes same-sex marriage, but I do believe in civil unions.” In November of that year, Obama told MTV: “I believe marriage is between a man and a woman. I am not in favor of gay marriage.” The same year, the people of California passed a referendumnullifying the state’s same-sex marriage law, instantly invalidating the marriage of thousands of their fellow gay citizens.
In June 2011 — just four years ago — Obama aide Dan Pfeiffer told a gathering of liberal bloggers: “The president has never favored same-sex marriage. He is against it.”
It was only in May 2012 — just three years ago — that Joe Biden went on Meet the Press and, by all accounts, surprised everyone by announcingthat he had changed his mind and now favored same-sex marriage. That announcement, along with rapidly changing poll numbers (majoritiesfavored marriage equality when Biden made his announcement), caused numerous national Democratic leaders (and ultimately Obama himself), for the first time, to announce their support for marriage equality. So up untilthree years ago –– even as numerous other countries on multiple continents around the world enacted it — almost every national American political figure opposed same-sex marriage.
Now, as of today, same-sex marriage is legal in all states. That is massive, fundamental change in an amount of time so short as to be dizzying. As the great LGBT activist Michelangelo Signorile warns in his new book, It’s Not Over, the advent of gay marriage no more means an end to harmful anti-gay bigotry than the end of Jim Crow laws (or the election of a black president) ended racism. Particularly for poorer LGBT citizens, ones who live outside of coastal cities, and transsexuals, discrimination remains potent (which is why the image of establishment, Democrat-loyal LGBT leaders jeering a Latina immigrant trans activist this week for interrupting President Obama, for whom they obsequiously swooned, was simultaneously so ugly and revealing). And the broader lessons to be drawn for political activism from acceptance of marriage equality are limited by the issue’s irrelevance to the nation’s financial elite (who, to the extent they care at all, largely support it) and the hard-core neutering of establishment gay organizations as the price for acceptance.
Still, that the Supreme Court has now ruled that the Constitution bars discrimination even in marriage laws is a remarkable development for a country that has for centuries imposed untold ostracization, misery and legal punishment on its citizens for the crime of being gay. It demonstrates that real political change typically comes from citizens, not leaders. It highlights how difficult it is to demonize and Otherize people when they’re not invisible. And it exposes the myth of defeatism: that people are incapable of undermining and subverting entrenched institutional injustices.
It’s breathtaking to consider the amount of courage and human suffering that led to today’s decision. In the late 1940s, Harry Hay created the Mattachine Society, which combined highly progressive politics with a campaign for gay rights in an indescribably hostile and oppressive climate. The Stonewall Riots of 1969, driven by outrage over endless police harassment, were led by the most marginalized members of the community, and sparked the modern LGBT movement. In the late 1980s and 1990s, ACT UP — driven primarily by sick gay men and their lesbian allies — pioneered political activism with a union of defiance, dissent, shrewd expertise and strategizing that unquestionably saved countless lives around the world and emboldened an entire generation of gay people (passively attending ACT UP meetings at Cooper Union during my law school years was incredibly formative).
The experience of being gay in the U.S. has long been one of intense stigma, condemnation and exclusion; for many, it was worse than that. The tragically conclusive empirical data on the highly disproportionate suicide rates for gay adolescents, by itself, tells much of that story. To witness the arrival of full-scale legal equality is something many never expected to see in their lifetime, and now that it has happened, still seems surreal.