A civil rights victory long in the making

June 29, 2015

Ann Coleman, Alan Maass and Nicole Colson report on the Supreme Court's historic ruling on same-sex marriage--and look back at the struggles that shaped it.

THE U.S. Supreme Court's 5-4 ruling on same-sex marriage last week was a sweeping victory in the decades-long struggle to recognize the humanity and dignity of LGBT people.

There were large celebrations in cities across the U.S., with already planned "Pride" parades and rallies in many cities taking on a new significance and joyful atmosphere.

In New York City, thousands of people, waving "Love rules" signs and carrying rainbow flags, gathered in the streets outside of the Stonewall Inn--the birthplace of the modern LGBT rights movement, where, in 1969, a riot broke out against police harassment. "To see this just means so much," Stonewall Inn owner Stacy Lentz told one reporter. "It's not about just the idea of marriage. It's about equality."

"I can go on with my life," an elated Joe Vitale told CBS New York. Vitale, along with his husband Rob Ralmas, have a 2-year-old adopted son named Cooper. Until the Supreme Court decision, their marriage and rights as Cooper's parents were not recognized in every state. Ohio, where Cooper was born, does not recognize same-sex marriage, and until the Supreme Court decision, the state refused to issue a birth certificate listing both of Cooper's parents.

Celebrations of the Supreme Court's marriage equality ruling spread nationwide
Celebrations of the Supreme Court's marriage equality ruling spread nationwide (Elvert Barnes)

Cooper was, in fact, the youngest of 31 plaintiffs in the several cases that the Supreme Court decided last week. In striking down state bans on same-sex marriage, the Supreme Court ruling in Obergefell v. Hodges and three related cases effectively ended a "state's rights" approach to marriage.

The issues in the main case showed the stakes involved in this decision.

Plaintiff Jim Obergefell had married his longtime partner John Arthur in Maryland in 2013, where same-sex marriage is legal. When Arthur died in Ohio three months and 11 days later--a result of the progressive degenerative neurological condition amyotrophic lateral sclerosis--Ohio, where same-sex marriage had been banned, refused to list Obergefell as Arthur's spouse on the death certificate. "I just stood up for our marriage," Obergefell told the Washington Post in April.

Writing the majority opinion for the Court's ruling, Justice Anthony Kennedy said:

As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage...Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Kennedy's opinion contained a powerful argument in defense of constitutional rights being extended and expanded:

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

THE MAINSTREAM media will highlight the legal strategy that led to this historic victory, dating back to the 2003 court ruling in Massachusetts that overturned a state ban on same-sex marriage. But those of us who were organizing and protesting every step of the way need to remember that it was pressure at the grassroots that got us to this point.

Just a decade ago, the right wing had the momentum on the issue of marriage equality. In the 2004 election campaign, the Republicans made same-sex marriage a "wedge issue" to mobilize conservative voters, putting forward referendums for state constitutions to define marriage as exclusively between a man and a woman. Voters in 11 states--Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon and Utah--all approved the bans on same-sex marriage by double-digit margins.

In the wake of this, mainstream LGBT rights advocates cautioned against any further efforts to push for equality, believing that this would only fuel the Republican-driven backlash. Most Democratic political figures followed the triangulating ways of Bill Clinton and his wife, the recently elected U.S. Sen. Hillary Clinton, in reiterating their commitment to marriage being between a man and woman.

But the Republican backlash was itself going in the opposite direction of public opinion. That became clear in the aftermath of another defeat for marriage equality--the passage of California's anti-gay marriage Prop 8 in November 2008.

This time, the response was different: On the night of the election itself, there were sizable and angry demonstrations in San Francisco, Los Angeles and other cities. Within days, the protests spread across the state, then to cities in other states, and finally across the country.

A new movement was born, one very different in character to the mainstream LGBT organizations that remained cautious about same-sex marriage. In city after city, the issue got people new to politics involved in organizing for the first time.

Less than a year after Prop 8 won in California, there was a national mobilization of 200,000 people to Washington, D.C., for the National Equality March, which put the issue of same-sex marriage front and center, but also raised a range of other questions, from the military's don't-ask-don't-tell ban on gays and lesbians to the inclusion of trans people in the proposed Employment Non-Discrimination Act, and more.

The tide was turning. When, five years later, the U.S. Supreme Court declined to consider challenges to lower-court rulings upholding marriage equality, the total number of states with equal marriage rights became a majority. One year after that, three-quarters of the 50 states recognized same-sex marriage.

If the Republican backlash in 2004 was running against the current of changing public opinion, the movement in the aftermath of Prop 8 helped change even more minds, and even more quickly.

When the Gallup polling organization 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 that the Defense of Marriage Act was passed and signed into law by Bill Clinton--68 percent of people opposed marriage equality and only 27 percent supported it.

By 2004, when same-sex marriage was legalized in Massachusetts, support had grown to 42 percent. The polls hit the 50 percent mark in 2011 and remained above that number since 2012, reaching 60 percent this spring.

The emerging public support helped galvanize marriage equality advocates during the difficult years after 2004 and laid the basis for the upsurge of protest after the Prop 8 ban won--but by the same token, activism made marriage equality an ever-more visible issue, winning more people to supporting this essential civil rights issue.

UNSURPRISINGLY, THE right wing went apoplectic at the ruling--beginning with the four dissenting conservative justices on the Supreme Court and extending to the current crop of Republican presidential candidates--not to mention pretty much every windbag at Fox News.

Chief Justice John Roberts' dissenting opinion recycled the myth that "people around the world have viewed [marriage] in a particular way for thousands of years" and took the point a step further, calling the present generation "pretentious" for attempting "to burst the bonds of that history and tradition."

Probably the most absurd dissenting opinion came from Justice Clarence Thomas, however, who lectured that denial of the right to marriage doesn't deprive people of their dignity, because:

human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits.

Among the Republican presidential hopefuls, Louisiana Gov. Bobby Jindal declared that we may need to "get rid" of the Supreme Court in the wake of the decision. Texas Sen. Ted Cruz was among those supporting "civil disobedience"--he argued that local clerks should refuse to issue marriage licenses on the grounds of religious objections, because "[o]urs is a country that was built by men and women fleeing religious oppression."

In Texas, Attorney General Ken Paxton followed Cruz's lead, saying that county clerks who object to same-sex marriage have the right to disobey the law and refuse to issue marriage licenses because they "retain religious freedoms that may allow accommodation of their religious exceptions"--potentially setting up another round of court battles.

These dissenting opinions are reminders that if politics is left to the legal and legislative arms of the state, the debates on how society should be organized will be confined to high-school-textbook understandings of the history of our rights and freedoms.

The fact of the matter is that historic decisions by the Supreme Court are very often a late-in-coming reflection of the pressure from social movements and changing public opinion--and have little to do with supposedly unchanging rights enshrined in the Constitution.

SOME ON the left reacted very differently to the Supreme Court decision, focusing on the oppressive history of marriage as a social institution and dismissing the celebrations as being about a ruling that will mainly affect "rich, white" gays and lesbians.

The debate will continue in the coming days and weeks, but to begin with, this attitude neglects the very real impact that a legal victory for marriage equality will have on the lives of LGBT people like Jim Obergefell or Joe Vitale--in the form of more than 1,000 federal rights formerly only available to different-sex married couples. The effect of this expansion of rights will be felt by countless working-class and poor LGBT people of every race.

Plus, there is the example set by a successful struggle--one that actively involved hundreds of thousands of people over decades and that will continue to fight for the humanity and dignity of all LGBT people. The struggle that came together around marriage equality won't stop with that issue--and it has lessons for all the fights taking place in every corner of an unjust and unequal society.

Besides sharing congratulations with the most recent wave of LGBT rights activists, one of the authors of this article had the opportunity to talk about the Court ruling with a former copyeditor for the Gay Community News in Boston from the late 1970s and early 1980s. He said he and his partner of more than 30 years had met while working on the nationally circulated newspaper. "At that time, marriage wasn't even on the table for debate," he said. "We were just trying to save our lives."

The headline in the Gay Community News on July 26, 1973, was "Violence Continues." What started out as a local community newsletter to pull together the various LGBT organizations around Boston grew into a nationally distributed weekly paper that attempted to be a vehicle for debating gay rights, feminism, antiracism, class struggle, prisoner rights and AIDS. Still, as a national publication in 1978, the Gay Community News was often mailed in brown packaging so that people with subscriptions wouldn't be harassed for receiving it.

We should take pride in this legacy and carry the lessons and challenges forward for our upcoming battles. We should also recognize the successes that the struggle for LGBT civil rights has achieved in the half a century.

Besides opening the door for LGBT couples on issues around citizenship, child custody, health care, access to retirement benefits, and more, the Supreme Court decision on marriage equality is a reminder of that most important political lesson: When we fight we can win. Ours is a movement for humanity and dignity, and it will triumph in the end, no matter how the justices interpret the constitution.

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