A New Era for Gay Rights?
What
does it feel like to have changed the world?” As the Supreme Court
ruling on same-sex marriage approaches, many long-time gay-rights
advocates tell me that they are being asked this question. It speaks to
more than Obergefell v. Hodges, the case before the Court, or even gay
marriage, but to the dramatic increase in acceptance that L.G.B.T.
people are experiencing. Take, for example, Ireland’s vote for marriage
equality and Caitlyn Jenner’s warmly received coming out. Last month, a Gallup poll showed that sixty per cent of Americans agree that
marriage between same-sex couples should be recognized as valid. That
number is the highest it’s been in the nineteen years that Gallup has
been asking the question.
Other polling shows
that almost two-thirds of Americans expect the Supreme Court to
legalize same-sex marriage nationwide with its Obergefell ruling. (It is
already legal in thirty-seven states.) Most Supreme Court experts
agree, and even conservative strategists don’t really want the legal
chaos and social backlash that a ruling that rolls back gay marriage
could bring. Having the gay-marriage battle continue “isn’t necessarily
helpful for Republican candidates who are trying to appeal to a wider
section of voters than just social conservatives,” Ron Bonjean, once an
aide to former Senator Majority Leader Trent Lott, of Mississippi,” told Bloomberg Politics last week.
If
the Court rules as expected, it will be a major victory for gay-rights
advocates, but they may not get the broad ruling that they have long
sought. Advocates have hoped for a ruling that essentially holds that
any law that treats people differently based on their sexual orientation
(without a compelling reason) violates the equal-protection clause of
the Constitution. Such a ruling would serve as a basis to invalidate
almost all other anti-gay discrimination. But, based on the rationale
set forth in United States v. Windsor, which struck down the Defense of
Marriage Act two years ago, and on the oral argument in Obergefell, it
seems likely that the Court will continue to base its thinking on
same-sex marriage on a more amorphous standard—one that holds that basic
fairness requires that gay people be treated with equal dignity,
especially when it comes to important rights like marriage.
Based
on Chief Justice John Roberts’s questions during the Obergefell oral
argument, in April, some have speculated that he may want to rule that
anti-gay-marriage laws are unconstitutional because they discriminate
based on gender, rather than because they discriminate based on sexual
orientation, limiting the impact of the ruling on other instances where
gays face unequal treatment. Would the five more liberal Justices
thought to be in favor of gay marriage go along with this ruling in
order to make the vote 6-3? Some also believe that Roberts could vote to
mandate nationwide recognition of same-sex marriages, stopping short of
requiring every state to perform them. This would be a possible
face-saving vote for the history books, but one that could cloud the
real import of the outcome (or make it complicated to interpret) if the
five liberals rule more broadly in a concurring opinion or opinions.
A
more limited victory would reflect the reality of a Supreme Court that
seems to favor the expansion of gay rights but still wants an
incremental approach. Speaking off the record, some Supreme Court
observers said that they were struck during the oral arguments by how
foreign the idea of long-term, loving gay relationships still seemed to
some of the Justices. Even Justice Anthony Kennedy, who is thought to
favor gay-marriage rights, said that “the word that keeps coming back to
me in this case is ‘millennia,’ ”
making the assumption that marriage has been reserved exclusively for
heterosexuals for centuries. There was no real response from the
plaintiffs, even though there is a rich history of same-sex
relationships and marriages from other periods and civilizations. To
some observers, it seemed that neither the Court nor the attorneys before it rose to the significance of the case.
Michelangelo Signorile, whose book “It’s Not Over: Getting Beyond Tolerance, Defeating Homophobia, and Winning True Equality” was
published last month, is urging the gay-rights movement to avoid what
he calls “victory blindness,” or “the dangerous illusion that we’ve
almost won.” In a recent e-mail, Signorile wrote that “LGBT people and
their allies have to be ready for the backlash and have to continue with
the same forcefulness and energy, and with the same clear,
uncompromising demands for full equality.” For example, several state
legislatures have already considered bills that would permit officials
not to perform weddings if they had a religiously based objection to
them. Although these bills are likely unconstitutional, one became law last week in North Carolina.
There
are a number of ongoing realities to take into account. There is no
federal law protecting L.G.B.T. Americans against discrimination in
employment, housing, or public accommodation. That means that, in some
places, they can be legally married but then legally fired for doing so.
The prevalence of serious health issues and homelessness among L.G.B.T.
youth remains disproportionately high. And the global human-rights
abuses against L.G.B.T. people are, of course, staggering.
When
the court rules, there will likely be some celebrating, as there should
be. But what does it feel like to have changed the world? We will have
to wait and see what happens next.
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