Last week we discovered how far we have come in recognizing the human rights of people who do not identify with sexual norms.
As a matter of law, LGBT rights have been ping-ponging between federal and state legislatures and courts for three decades, since the Supreme Court’s 1986 decision in Bowers v. Hardwick, which upheld Georgia’s homosexual sodomy law. Other rights-expanding court cases followed, with Congress and legislatures resisting equal rights, especially after the Supremes reversed Bowers in two cases in 1996 and 2003. The following election year, voters of 13 states amended their constitutions to ban same-sex marriage. Thirteen more states had passed similar amendments by 2008, bringing the total to 30. At the time, federal law barred federal recognition of extant same-sex marriages, and the U.S. military was still operating under “don’t-ask-don’t-tell.”
Late this month the Supreme Court will hear arguments in a consolidated case, Obergefell v. Hodges, that virtually all observers expect to result in the right of same-sex marriage throughout the United States. Propelled by the logic of the high court’s invalidation in 2013 of the 1996 Defense of Marriage Act, lower court decisions and state laws have brought gay marriage to 37 states.
Eleven days ago, Indiana enacted a law granting individuals and corporations a defense against a civil action for discrimination if their “exercise of religion” had been “substantially burdened.” After six days of nationwide outcry – predictable had Governor Mike Pence been paying attention – Pence signed an amendment that denied that same defense “to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of . . . sex, sexual orientation, [or] gender identity . . . .” What was intended as a bar to equal protection became a leap ahead for the Indiana Code, and it slammed the door on discriminatory proposals in other states.
Because the Republican Party grants disproportionate influence to presidential primaries in Iowa and South Carolina, candidates and so-called religious conservatives will continue their battle based on belief, fear and exclusion, even as the rest of the country moves on. Except for that diminishing exchange – and the Supreme Court’s Obergefell decision – the fight for LGBT equality is nearly done. What made it successful? Several factors, I suggest.
How we have leaped
First, gays and lesbians are indistinguishable from everyone else. “Don’t-ask,” to the extent it worked (and it didn’t), seemed reasonable because it relied on a belief that homosexuality is an immoral “lifestyle” and an affront to societal norms. The majority worked off a construct that made “choice” discrimination okay. But once we found out that we had a gay relative or neighbor or colleague, we began to question our construct.
Second, the gay movement (such as it is) corralled its economic might. It understood the political process. It mounted litigation coast to coast. It drew effective lawyers, like the duo of David Boies and Ted Olson, adversaries in Bush v. Gore, who litigated California’s Proposition 8 before the high court.
Third, it took advantage of a historic era of expansion of legal equality. With an African-American in the White House, Americans signaled a willingness to question confining belief. To think anew.
What’s next? Plenty.
The Bill of Rights as a blueprint for the democratic process remains to be fulfilled. The Ninth Amendment leaves room for rights unenumerated in the Constitution, such as the right to vote. But voting rights is in retreat in many states, encouraged by the Supreme Court’s 2013 invalidation of a key enforcement mechanism of the Voting Rights Act. The Supremes last month let stand Wisconsin’s voter ID law, though other voter ID cases remain in the pipeline, among them Veasey v. Perry, in which a federal trial court struck down a Texas statute last fall.
The broad struggle for women’s rights drags on. Jimmy Carter, in a column explaining his decision six years ago to sever ties with the Southern Baptist Convention, surveyed types of discrimination against women all over the world – the types Americans abhor – like denial of driving or getting educated or genital mutilation. Carter wrote, “The same discriminatory thinking lies behind the continuing gender gap in pay and why there are still so few women in office in the West.”
Fear of black and brown remains in our country’s DNA, as reflected in our exercise of the police and judicial powers that the Fifth, Sixth and Eighth amendments were designed to limit. Despite the Fifth’s guarantee of life, liberty and property, young black men are 21 times more likely than young whites to be killed by police. Whether one receives Sixth’s guarantees of an impartial jury and effective counsel correlates to wealth and race. Of the 1400 persons executed since 1976, 42 percent were black or brown. Our interpretation of the Eighth’s proscription of cruel and unusual punishment has 2.3 million Americans incarcerated and 6.9 million under “correctional supervision” – prison, parole or probation, many for non-violent convictions or for no conviction at all.
“No country, however rich, can afford the waste of its human resources,” Franklin Roosevelt told us. In some respects, we are casting aside belief in favor of reason in the uneven march toward a more perfect union. We have many roads yet to travel.