Developments of Gay Rights in the US

In the summer of 2015 the US Supreme Court made landmark decision, ruling that gay marriage is an individual right protected by the US Constitution. In the majority decision, penned by Justice Anthony Kennedy, they concluded: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. 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 plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. 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.” [1] In reading through the rest of the decision, I found that Justice Kennedy and the majority used an open-minded inquiry that made a thorough evaluation of political theory, legal precedent, historical events, use of evidence, and a clear understanding of liberal democracy and individual rights to come up with the historic decision. Justice Kennedy’s understanding of the critical importance of the legal recognition of gay marriage to our democratic institution was very clear. He wrote: “The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” [1] The Supreme Court decision confirmed our government’s commitment to equality among its citizens. The principle of equality has always been America’s rallying cry for change to fulfill its promise of a “more perfect Union.” Although people of color and women have been treated unfairly, over much of our country’s history, despite our democratic ideals. Yet, our government ceases to be a democracy if the principle of equality is not sustained. 

I should also note that the minority dissent was not based on being against gay marriage, instead it questioned the role of the federal government with regard to the state legislatures. This has been a main contention of many legal challenges to the legalization of gay marriage. They believe that the Courts cannot make the laws, and that these issues should be left to the states. However, if Abraham Lincoln had agreed to this premise, it would be highly improbable that slavery would have been abolished in the South. Also if this mentality had persisted in the early 20^th century then women would probably still be unable to vote. Chief Justice Roberts wrote: “Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples.” He then mentions that the legislatures in 11 states and the District of Columbia have already enacted laws to legally recognize same-sex marriage. Yet he adds: “But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” From this dissent, one may conclude that even the dissenting Chief Justice believed that the legalization of gay marriage was inevitable, and it was just a matter of time.

To put the historic Supreme Court decision in perspective, the road to that decision had been long and difficult. [7] It is also very personal to me, because my brother is gay, and look forward to seeing him happily married. In 1973, the American Psychiatric Association declared that homosexuality was not a mental illness. [2, 7] This was a first huge success for the gay community in the US. Since the 1970s, the gay community has been in a continuous struggle for equal protection and equal rights.[7] In 1986, there were 24 states that had laws criminalizing sodomy performed in private and between consenting adults, and the United States Supreme Court in denying gay right to privacy, upheld these state laws.[3] The anti-sodomy laws were not abolished until 2003, when the US Supreme Court finally ruled that these laws were unconstitutional. They also admitted that societal views on homosexual relationships have changed. Yet in 1996, Congress passed the Defense of Marriage Act (DOMA) which defined marriage for all legal purposes as only between a man and a woman. DOMA was signed by President Clinton, and received a veto-proof majority. It is worth noting at the time, that a large majority of Americans were opposed to same-sex marriage, and the President and the leaders in Congress made a politically expedient decision. It was not until 2013 (17 years later) that the US Supreme Court invalidated DOMA as a denial of the equal right and equal protection guaranteed by US Constitution.[4] This was the prelude to the landmark 2015 Supreme Court decision reaffirming the constitutional right to gay marriage. Justice Kennedy beautifully wrote about the sanctity of marriage: “the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.” Subsequently, gay marriage was framed into two main rival values: morality and equality. Proponents of gay marriage invoked equal rights and equal protection under the law, and they depicted their adversaries as hateful. In contrast, gay marriage adversaries framed the issue in terms of traditional values, and invoked that same-sex marriage would pose serious threats to the traditional social and religious institutions of marriage and family. Social conservatives cast the gay marriage advocates as seeking “special treatment”. In his decision, Justice Kennedy tried to reconcile the opposing religious and the secular views on marriage. He wrote: “The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held and continues to be held in good faith by reasonable and sincere people here and throughout the world. The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” [1] Thus, to Justice Kennedy, equality won over morality.

However, it must be said that in the 10-15 years leading to the US Supreme Court’s 2015 decision, there was a significant shift in public support for same-sex marriage. [5] The US public opinion in 2018 rose to 67% approval of gay marriage, from 60% in 2015, and from only 27% in 1996. [6] According to a 2013 Pew Research Center Report the increase in support had been among the largest changes in opinion on any public policy issue.[5] It reports that much of the change can be attributed to the large group of young adults who were born after 1980 (the Millennial generation). The Millennial generation has been openly supportive of gay rights much more than the older generations. Moreover, a significant percentage of older Americans also changed their minds on the issue, and they are now supportive of gay marriage. As for the reasons for the change in opinion, many attributed them to having personally known a homosexual person; that they have deliberately thought about the issue; or that in the modern world the change is inevitable. [5] It can then be argued that advocates of gay marriage didn’t win because of some excellent persuasive legal argument. They won because the battleground shifted from the courts and congress, to the realm of public opinion. The substantial change in public opinion was a huge success for the gay rights movement. To do this they framed their arguments in a more accessible and understandable language, about fairness and equality, and that empowered its base. They also moved their arguments away from the institutional or “marriage” part of the debate, and focus more on the human or “gay” aspect. This made their arguments more about human dignity and equality and less about the institution of marriage. Meanwhile the institution of marriage in the US has been faltering, with the fraction of married American adults at its lowest. [6] Consequently, this became an easy vote that meant being gay was okay. In the end, it was the progressive values of equality and open-mindedness that drew in a wide rainbow of allies to the just cause of legalization of gay marriage.

References:

1. “Obergefell v. Hodges.” Oyez, 6 Dec. 2018, www.oyez.org/cases/2014/14-556.
2. “Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation” (2009).
3. “Bowers v. Hardwick,” 478 US 186, 195-96 (1986).
4. “United States v. Windsor”, 133 S.Ct. 2675, 2680 (2013).
5. “Growing Support for Gay Marriage: Changed Minds and Changing Demographics” Pew Research Center, March 2013; www.people-press.org/2013/03/20/growing-support-for-gay-marriage-changed-minds-and-changing-demographics/
6. gaymarriage.procon.org/.
7. www.cnn.com/2013/05/28/us/same-sex-marriage-fast-facts/index.html.