Will the Court find for equality?

March 28, 2013

Supreme Court hearings on whether or not to strike down two laws barring same-sex marriage are a result of struggle from below, writes Ann Coleman.

IN MORE than 160 cities across the U.S. this week, activists took to the streets to demand marriage equality and an end to discrimination against LGBT people and their families.

The protests coincided with the start of arguments in the Supreme Court regarding the federal "Defense of Marriage Act" (DOMA), the 1996 law signed by then-President Bill Clinton, and California's Proposition 8, a ballot measure narrowly passed in 2008 that banned same-sex marriage.

The case of Hollingsworth v. Perry is a legal challenge to Prop 8, known to its supporters as the "California Marriage Protection Act." Voters approved Prop 8 by a 52-48 margin just months after same-sex couples won the right to marry in California, when the state Supreme Court ruled that denying gays and lesbians equal marriage rights was a violation of the state constitution.

The second case the justices are hearing is United States v. Windsor, which contests a portion of the federal Defense of Marriage Act (DOMA), which defines marriage as only between a man and a woman.

Protesters fill the streets of the Castro in San Francisco during a national day of action urging the Supreme Court to overturn DOMA and Prop 8
Protesters fill the streets of the Castro in San Francisco during a national day of action urging the Supreme Court to overturn DOMA and Prop 8 (Jamison Wieser)

At one point, these laws might have seemed insurmountable--but public opinion around the issue of marriage equality has shifted dramatically in the intervening years. Today, the issue of same-sex marriage rights is especially important because of what it says about the role of struggle in pushing the fight for equality forward.

At the heart of the matter is not whether President Obama has "evolved" on the issue of same-sex marriage (as he now claims) or whether President Clinton now thinks DOMA is unconstitutional (after he signed it into federal law in the dark of the night in September 1996). The two Supreme Court cases being heard this week and the decisions being drafted for June--coincidentally, LGBT Pride Month--challenge our understanding of public opinion and politics as defined by the ballot box and carried out by our legislative and legal institutions.

The decisive shift in public opinion in favor of marriage equality, and the reason all eyes are on these court decisions, is because LGBT people and their allies have organized themselves to make the case that marriage equality is about civil rights for all people. Polls today show a majority of people in the U.S.--51 percent according to a CBS News poll last year--support marriage equality. Among young people, that number is much higher.

Both DOMA and Clinton's now-repealed 1993 "don't ask, don't tell" policy, which forced gay and lesbian military members to remain in the closet, condoned homophobia and transphobia at an official, institutional level for much of the 1990s and early 2000s. But thousands across the country--at speak-outs, protests and organizing meetings--steadily built the fight against these policies, even as Democratic Party politicians like Bill Clinton claimed that they were the best LGBT people could expect.

In the days following the results of the Prop 8 ballot measure, however, hundreds of thousands of people rallied on November 15, 2008, in cities across the country--marking an explosion of grassroots activism that continues to today. From the formation of groups like Join the Impact, to the National Equality March in 2009, grassroots organizing was at the heart of the movement.

Thousands of campus and community organizations took up marriage equality in the wake of Prop 8--but also transgender rights and other issues that impact the LGBT community, like immigrant rights.

New organizations like GetEqual were formed, and a new model was set for a movement that had moved from the streets during the AIDS Coalition to Unleash Power (ACT UP) fight for AIDS funding in the 1980s and early 1990s to a mostly defensive strategy led by non-profits who lobbied politicians and worked on piecemeal reforms of policies.

MAINSTREAM MEDIA this week is bending over backward to provide "balanced" coverage of the two sides arguing over the Supreme Court cases. But there's no "balance" between bigotry and fundamental civil rights.

Those arguing in favor of the constitutionality of Prop 8 today are using the same "states' rights" argument so prominent among those who argued that "separate" was "equal" during the time of the civil rights movement. It was code, then and now, for discrimination and bigotry.

But that didn't stop Barack Obama from arguing last fall that his administration would not take a lead on marriage equality at a federal level--because it should be left up to the states. "[H]istorically, marriages have been defined at the state level," Obama said. "And there's a conversation going on...there's some states that are still having the debate. And I think for us to try to legislate federally into this is probably the wrong way to go."

Obama is wrong. His argument--wait for progress, be patient--is one we've heard before used to justify the failure of Democrats to take a stand. We deserve full equality, and shouldn't settle for anything less.

There are more than 1,100 rights and responsibilities that come with civil marriage. To deny one portion of the married population the immigration rights, tax benefits, retirement rights, parental rights and Social Security rights (to name only a few) for the benefit of the bigotry of a minority strikes a chord against the promise of equality and freedom for all.

If we were to focus only on the court decisions and the official politics surrounding DOMA and Prop 8, it would be easy to follow the mainstream media's attitude that these cases are solely about "redefining" marriage.

But the struggle for marriage equality is tied to the larger history of the fight for LGBT equality.

Every gain that LGBT people have made has been because of the grassroots push for change. The shift in public opinion around civil marriage--and the broader acceptance of the LGBT community in general--has been a result of the work of LGBT and allied activists who, especially since the Stonewall Rebellion of 1969, have connected the struggle for LGBT rights to issues including police brutality, heath care, immigrant rights, the antiwar movement and civil rights.

Such activism today represents the best potential for a renewed struggle for liberation that goes beyond the limitations of politicians and the courts.

Movements that embrace the issues of the oppressed have always given confidence to individuals to be out, proud and confident to stand up and organize for their rights. No matter how the court decides in June, the rebuilding of grassroots movements for LGBT liberation will need to move forward where these decisions leave off.

To understand why public opinion has shifted in favor of same-sex marriage we need only look to the shape of the struggle: On March 26, 2013, the more than 160 rallies and vigils in favor of same-sex marriage across the U.S. illustrated the profound shift in public opinion from even two decades ago as grassroots activists joined with long standing non-profit organizations to demand equality.

If the Supreme Court decides to be on the right side of history and strike down DOMA and Prop 8, it will ultimately be because of the impact of these struggles from below.

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