Free at last

The Supreme Court’s Long Journey Toward Marriage Equality

supreme courtIn retrospect, today’s Supreme Court decision looks inevitable. The justices dodged whether marriage equality was a federal right last time out, only to see court after court strike down marriage bans in multiple states, using the very reasoning the justices outlined. To his eternal irritation, Antonin Scalia called it right in 2013, when he said that the other shoe would have to drop.

Today it did.

Ruth Bader Ginsburg suggested in 2013 that the Court was intentionally slow-walking the marriage equality ruling so that it didn’t get in front of popular opinion. Well over half of Americans are fine with marriage equality. The justices had no good reason to wait any longer.

The ruling now takes its place with the other two great decisions: Lawrence v. Texas, which struck down sodomy laws, and Romer v. Evans, which struck down laws that barred nondiscrimination protections. In a relatively short period of time, the Court has systematically removed barriers to equality and recognized the community’s right to equal status under the law. Appropriately, today’s decision came on the anniversary of those two groundbreaking rulings.

And it’s done so with remarkable eloquence. Once again, Anthony Kennedy has pulled out all the stops in his opinion. Kennedy’s mentor in law was a gay man, and the feeling with which Kennedy writes strongly suggests that his personal experience has created a deep well of empathy from which to draw.

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” Kennedy wrote for the majority. “[The challengers] ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

It’s not that the opinion is perfect. For all its language about the value of same-sex families, the majority opinion doesn’t go quite so far as conferring the same kind of legal status to gay issues that it does to race and gender.

As for the dissent, it’s always easy to make fun of Antonin Scalia’s metaphorical flights of fancy. But don’t forget that his dissent in Windsor was used by several federal courts, such as Utah, to strike down marriage bans. The dissent is not just the losing side’s concession speech. It’s a blueprint of legal reasoning that can be used in other cases. In particular, Scalia seems to be writing with an eye to bolstering religious liberty challenges to marriage equality.

The religious right has already indicated it won’t take this decision, um, lying down. There are bound to be multiple challenges on religious liberty grounds. The court fights will keep on going for a while.

With such a huge victory, it’s easy to become complacent—what Michelangelo Signorile calls “victory blindness.” The fact remains that we are now in the screwy position of being able to marry nationally while still facing the risk of being fired in 29 states for being gay.

It’s also easy to lose sight of the fact that not everyone benefits equally from the decision. In particular, as quickly as things are moving, the transgender community is at a much earlier stage of popular understanding, let alone acceptance. Gender is the next civil rights revolution, and now the marriage equality has been achieved it’s time to support the T in LGBT.

None of that takes away from today’s decision, however. Yes, there’s still plenty of work to be done. But now is a time for celebration. For all the couples that pushed the issue, for all the attorneys who fought for decades, for all the activists who organized protests, today is a cause for rejoicing. It’s also a time to remember everyone who has since passed who would have dearly loved to have seen this victory.

Retroactively, at least, the Court just validated their relationships.