What moved the Court on marriage equality?

October 9, 2014

A decade ago, the right wing was winning its war on same-sex marriage rights. Today, we're the ones with history on our side--in favor of marriage equality and much more.

FIVE MORE states joined the world of equality and will now be able to perform same-sex marriages, after the U.S. Supreme Court decided not to review the decision of three federal appeals courts that upheld equal marriage rights.

Marriage licenses could be issued to same-sex couples any day now in Utah, Oklahoma, Virginia, Wisconsin and Indiana, and supporters say the Supreme Court has cleared the way for marriage equality in six more states that fall under the jurisdiction of those appellate courts: Colorado, Wyoming, Kansas, West Virginia, North Carolina and South Carolina. All told, this could raise the total number of states with equal marriage rights to 30.

In others words, same-sex marriage--something that didn't exist anywhere in the U.S. until 10 years ago--is now legal in a majority of states.

Many couples were caught by surprise by the decision, but rushed to request their marriage licenses as soon as they heard. Gregory Enke heard the news, woke up his partner of eight years and sped to the government office in Salt Lake City.

Marriage equality supporters rally outside the US supreme court building
Marriage equality supporters rally outside the US supreme court building (David Sachs | SEIU)

"I was in shock," Enke, who was forced out of the Mormon Church after leaving his longtime wife and living openly in a gay relationship, told the New York Times. "I started to shake. I was just sobbing. I didn't want to wait anymore."

In Colorado, a state where the ban had yet to be lifted, excitement over the news caused some government offices to start issuing licenses before they were given the official word from the state.

The decision of the Supreme Court not to stand in the way of rulings in favor of equality was a welcome blow against conservatives--who nevertheless promised to re-double their efforts to put an end to the jubilance felt by Gregory Enke and so many others.

The outcome of the appeals to the Supreme Court was also a surprise coming from this collection of justices, who include arch-conservatives like John Roberts and Antonin Scalia.

It makes you ask the question: What would lead a Supreme Court stacked with right-wingers--a court that has had no qualms ruling on the side of reaction on any number of issues--to decide not to hear appeals against same-sex marriage?

The answer is the sea change in public opinion over the issue of same-sex marriage. For the last decade, supporters of marriage equality have made the right of same-sex couples to have all the rights afforded to all married couple a question of civil rights. And they've won the day, with a clear impact on the U.S. population at large--so much so that the Supreme Court, as utterly isolated and unaccountable as they are, saw the writing on the wall.

THROUGHOUT THE ups and down of the struggle for marriage equality, supporters of LGBT rights have had to confront the forces of the Religious Right, which has tried to push back the fight against discrimination. But despite the right's well-funded and politically connected organizing, the message of the movement was heard by growing numbers of people in the process.

When the anti-gay right won a close victory on their anti-equality Proposition 8 in California in 2008, it was a turning point. There were protests in major California cities on Election Night, then in smaller cities and towns across the state over the next week, and then across the country in the months to come.

Tens of thousands of people, many of them completely new to political activism, took action to protest this discriminatory initiative--and many hundreds of thousands more were forced to decide which side they were on.

Bigoted ideas about who should be "allowed" to marry were put under a national magnifying glass and debated--and an ever-growing number of people discarded their old ideas. This is the source of the shift in public opinion in U.S. society at large, which went far beyond the people who actually took part in protests or demonstrations. It took years to get rid of Prop 8, but nevertheless, those opening months of protests set the stage for this week's Supreme Court announcement clearing the way for even greater marriage equality

A Gallup poll released this past May reported a new high of 55 percent who said they supported same-sex marriage. When Gallup first asked whether same-sex marriages should be "recognized by the law as valid, with the same rights as traditional marriages" in 1996--the year the federal ban on gay marriage, the Defense of Marriage Act (DOMA), was passed during Bill Clinton's presidency--68 percent were opposed and 27 percent supported it.

The supporters had grown to 42 percent by 2004, the year that a Massachusetts court granted gays and lesbians full marriage rights and the city of San Francisco announced it would start issuing marriage licenses to same-sex couples, sparking a movement to defend the decisions.

The polls hit 50 percent mark in 2011 and have remained above that number since 2012. For young people--which the members of the Supreme Court obviously aren't--the numbers are overwhelming: among people between 18 and 29 years old, support for same-sex marriage has increased from 41 percent in 1996 to 78 percent in 2014, according to Gallup.

SO EVEN the Supreme Court--a body that is supposed to be, by constitutional design, impervious to the opinions and beliefs of ordinary people, the better to maintain the interests of the elite who rule in the name of the constitution today--is showing signs that it understands it can't give the green light to every reactionary policy and expect to maintain a semblance of legitimacy.

Last year, the justices declared a key provision of the Defense of Marriage Act, which barred legally married same-sex couples from the federal rights granted other married couples, unconstitutional.

While they didn't overturn DOMA completely, the decision was a big step for the Court. The discussion surrounding the case last year also presented an opportunity for Bill Clinton to "evolve." Back when he was president, the triangulator-in-chief calculated that there were more votes to be won pandering to right-wing votes, so he betrayed his LGBT supporters and signed DOMA into law. By last year, six-and-a-half years after he signed off on DOMA, Clinton had seen the error of his ways: "I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned."

Hillary Clinton, who also backed DOMA during the Clinton presidency, likewise had to eat her words and reverse her position on same-sex marriage if she wants to even be considered as a Democratic candidate for president.

Of course, for people like the Clintons, these "personal transformations" are about cynical political calculations. It's a lesson we need to remember and teach at every opportunity: In all the great struggles for freedom and equality--from the abolition of slavery to the vote for women to civil rights for African Americans--political "leaders" always bring up the rear. When they do the right thing, it's because they felt the pressure to do so by movements organized by the very people they claim to lead.

The U.S. Supreme Court is a fundamentally conservative institution. It masks itself behind a façade of neutrality and legal wisdom in order to appear as if it "stands above" the effects of political and economic power. But this is only a cover to hide how completely devoted the court is to preserving the status quo.

But the secret of the Supreme Court is that it is affected by political events around it--and when large enough numbers of people are willing to stand up for justice, the rulings of the "impartial" justices are affected.

AS SUPPORTERS of marriage equality know well, our fight is far from over.

Within days of the Supreme Court's decision not to review the same-sex marriage cases, opponents of equality pushed back. Wyoming Republican Gov. Matt Mead announced he would continue to defend his state constitution, which defines marriage as "between a man and a woman"--prompting same-sex couples in the state to began filing lawsuits. In Kansas, Republican Gov. Sam Brownback, who is up for re-election, says he won't lift the ban.

On October 7, Supreme Court Justice Anthony Kennedy temporarily halted a 9th U.S. Circuit Court of Appeals ruling that would have allowed same-sex marriage to begin in Nevada and Idaho the following day.

As long as same-sex couples in any state are denied the more than 1,000 rights provided to other married couples--such as taking a paid leave to care for a sick spouse or being eligible for a spouse's pension or health care benefits or being able to avoid deportation if you are an undocumented immigrant--then this fight isn't won yet.

And that's only to focus on marriage. But, of course, the struggle for LGBT equality is about much more than marriage. We aim to end discrimination and bigotry in every aspect of LGBT people's lives, whether or not they have anything to do with the right to marry.

One inspiring aspect of the movement that erupted to demand marriage equality in the aftermath of Prop 8 was how it brought needed attention to these other struggles. For example, the long battle to win the Employment Non-Discrimination Act (ENDA)--to outlaw employers from discriminating on the basis of actual or perceived sexual orientation and gender identity--got a boost. ENDA still isn't law yet, but the latest version of the legislation that passed the U.S. Senate by a 2-to-1 margin finally included protections for transgender people that had been left out of previous proposals.

This is also something common to the freedom struggles of the past: Movements that may have begun around specific, perhaps modest, single-issue demands raised awareness about connected political questions and energized the fight around them. Thus, the successes around marriage equality put our movement in a better position to struggle for ENDA, an end to discrimination in the criminal justice system and other issues vital to LGBT people.

Ten years ago, the bigots of the Republican Right were using the issue of same-sex marriage as a "wedge issue" to mobilize their side. Today, we're the ones with momentum and history on our side.

What the last decade has shown is that the protests we organize and the arguments we make matter--they have effects beyond our immediate audience--for the marriage equality struggle and the fight against all anti-LGBT discrimination.

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