Today, the United States Supreme Court will begin hearing arguments in two cases regarding same-sex marriage — one on California’s Proposition 8, the other on the federal Defense of Marriage Act. (For the infograph-ophilic, the New York Times has a handy flowchart showing how these rulings could come down.)
I’m neither an optimist nor a lawyer, but a microscopically small part of me hopes that the justices will see not only that history is on the side of marriage equality, but also that laws concerning the LGBT community deserve heightened scrutiny. (Ari Waldman presents a good summary of the principle here.) Both perspectives would help our argument for marriage and other LGBT rights cases down the road.
Whatever the nine justices decide, what’s remarkable isn’t just that we’re being heard in America’s highest court. What’s truly remarkable is that we’ve gotten there so very, very quickly. Many of us quietly doubted we’d live to see it happen, but across the nation, cities and states are galloping toward equality at breakneck speed.
Consider this: Lincoln issued the Emancipation Proclamation in 1862. African Americans weren’t given full equality (legally speaking) until nearly a century later, in 1954, when the Supreme Court decided Brown vs. the Board of Education. They weren’t guaranteed workplace protections until 1964, with the passage of the Civil Rights Act. And interracial marriage wasn’t fully legalized until Loving vs. Virginia in 1967.
Though many argue — and rightly so — that the real fight for LGBT equality began early in the 20th century, the watershed moment came in June of 1969, at New York City’s Stonewall Inn. Just 44 years later, we find ourselves at the doorstep of the Supreme Court, which could issue rulings that provide for marriage equality and set the stage for other LGBT protections.
How did we get here so fast? I think there are a handful of very important reasons:
1. We learned from the civil rights movements of the 20th century. The marches, sit-ins, and other moments of activism that brought equality first to women, then to African Americans, offered the LGBT community important lessons in how to communicate and how to make demands of a government that didn’t want to sully its hands with us. We refined these techniques during our own early marches and in the first decades of the HIV/AIDS epidemic.
2. The world is smaller: Cell phones, cable television, the internet, and social media have made the world a very tiny place. That’s given us more tools to arrange demonstrations quickly and more ways to disseminate our messages to the public — including judges and legislators.
3. We’ve come out of hiding. It’s a fact that people are more likely to support LGBT rights when they know someone who’s LGB or T. We’re everywhere these days: not just in families, churches, and schools, but in TV shows, on news programs, and everywhere else. And that’s made us less scary to the straight public.
4. The same-sex marriage genie has leaked out of the bottle. Vermont legalized civil unions in 2000. Since then, roughly 20% of the U.S. has begun offering LGBT couples the right to marry or at least register for civil unions. America doesn’t like that kind of piecemeal legislation. Consider the similarly hot-button issue of abortion: laws surrounding abortion vary from state to state, and in some places, it’s very, very tightly controlled, but there’s no question that it remains technically legal everywhere due to Roe vs. Wade.
5. There’s been a backlash against right-wing rhetoric. Republicans used LGBT rights as a wedge issue throughout the 1990s and the presidency of George W. Bush. But because of our heightened visibility (see #3 above), that tactic doesn’t play well anymore. Moms and dads aren’t likely to support LGBT discrimination when they know that their son or daughter or neighbor is gay. In fact, they’re more likely to side with social progressives, which led, in part, to the drubbing that conservatives got during last fall’s presidential election.
6. HIV has become a manageable disease. We probably would have arrived at this point in history much faster if HIV hadn’t decimated our community and given the public an allegedly “justifiable” reason to fear us. We were making great inroads at the dawn of the 1980s, and although decades of HIV/AIDS activism clearly galvanized our community and showed us how to fight, the disease clearly slowed our progress toward full equality. HIV remains a serious disease, but new drugs have changed it from a fatal one to a chronic one. That’s allowed activists to focus on a range of issues, from healthcare to marriage equality, and it has slowly changed the public’s perception of the LGBT community.
7. There’s a now way for LGBT foes to change their opinion while saving face. It’s clear to anyone with a brain that LGBT equality is coming. Many conservatives see their opposition to LGBT equality as a hindrance, they want to put the whole issue behind them, but until recently, they haven’t had a way of doing so while saving face. Personal “evolutions” like the one Senator Rob Portman experienced have given them tools to tell their stories of ethical transformation without seeming like they’ve caved to liberal rhetoric.
I probably won’t weigh in much on the hearings themselves. Every news outlet and LGBT blog will be doing that, and their commentary will be far more sophisticated than mine*. But rest assured, I’ll be sitting here with fingers and toes crossed. I might even whip up a voo doo doll of Antonin Scalia, just to be on the safe side.
* If I were a betting man, though, I’d wager that DOMA will be found unconstitutional (in part because marriage is a state issue, not a federal one), while the California ruling may be more narrow in scope. Thoughts?