Celebrating outside the U.S. Supreme Court after the Defense of Marriage Act was struck down (Avelino Maestas)
SUPPORTERS OF justice and equality celebrated on Wednesday after the U.S. Supreme Court announced two decisions that advance marriage equality. A central provision of the federal Defense of Marriage Act (DOMA) was declared unconstitutional, and an attempt to require enforcement of California's Proposition 8 ban on same-sex marriage was dismissed.
In the case that challenged DOMA, the justices' vote was split 5 to 4--but the majority opinion, written by Justice Anthony Kennedy was unambiguous in labeling the law's ban on federal recognition of same-sex marriage as discriminatory. "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statue is in violation of the Fifth Amendment," Kennedy wrote.
The decision focused on only one part of DOMA--a disappointment to those marriage equality supporters who hoped the court would go further and declare any restriction on same-sex marriage unconstitutional. The effects of the ruling will only apply to married same-sex couples in 12 states and Washington, D.C., where equality is the law.
Still, the DOMA provision that was struck down is a critical one: it blocked legally married same-sex couples from more than 1,000 rights and responsibilities that different-sex married couples enjoy. Denial of these rights, according to the court majority, "demeans" couples and "humiliates tens of thousands of children now being raised by same-sex couples."
True to Neanderthal form, Chief Justice John Roberts, in a dissenting opinion, insisted that DOMA did not "codify malice." But that's exactly what the 342 representatives, 85 senators and President Bill Clinton did with the passage of DOMA in 1996--they codified discrimination against same-sex couples at the federal level.
The overwhelming size of the congressional majority in favor of DOMA less than two decades ago underlines how much public opinion has shifted on this issue--a direct product of grassroots pressure and protest shifting public sentiment and putting pressure on the institutions of government to stand by their stated principles of justice and equality.
The Supreme Court decision on DOMA opens the way for more such pressure. That's something right-wing Justice Antonin Scalia recognized in his dissenting opinion, which referenced his dissent delivered exactly 10 years before in Lawrence v. Texas, the Supreme Court decision that finally struck down anti-sodomy laws.
"By formally declaring anyone opposed to same-sex marriage an enemy of human decency," Scalia said, "the majority arms well every challenger to a state law restricting marriage to its traditional definition."
We can only hope Scalia is right--that everyone who has been fighting laws that codify discrimination will take confidence from this latest advance and challenge every "state law restricting marriage to its traditional definition."
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THE COURT issued another decision that amounted to a victory for same-sex marriage--in the case Hollingsworth v. Perry relating to California's Prop 8.
The ruling here was more on a legal technicality than the constitutionality of the referendum. In the heated legal battle that followed its narrow passage in November 2008, the state of California eventually refused to continue defending Prop 8 against challenges by same-sex couples wishing to be married. A district court allowed right-wing supporters of Prop 8 to step in and defend the law, instead of the state government.
In Wednesday's ruling, again by a 5-4 vote, the court threw out the case on technical grounds, ruling that supporters of Prop 8 didn't have the authority to defend the case in the federal courts. Nevertheless, the effect of the ruling will be to allow marriage licenses to be issued in California to same-sex couples.
To be sure, the reliably conservative Supreme Court hasn't suddenly seen the light and committed itself to a program of social justice. The day before its rulings on DOMA and Prop 8, the court gutted the Voting Rights Act with a decision that effectively allows states to redistrict on racist terms. The same day, the justices ruled aginst tribal sovereignty for Native Americans in a case concerning adoption.
But no one should underestimate the importance of the high court rulings in the marriage equality cases. When the decision on DOMA goes into effect in late July, legally married same-sex couples will finally have access to significant rights and benefits that have been been unjustly denied them.
The decision will reverberate further, too. Within hours of the DOMA ruling, according to media reports, a New York City immigration judge stopped deportation proceedings against a Columbian immigrant who had been married legally in New York since 2001.
And beyond the concrete consequences, the Supreme Court decisions are a vindication of the importance of struggle and protest.
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IN THE 2004 election, when George W. Bush actually won, rather than stealing the White House, Republicans were able to use same-sex marriage as a "wedge issue"--they got marriage equality bans on the ballot in critical states, recognizing that these referendums would fire up their conservative base.
When political commentators drew the conclusion from the election results that the U.S. was more right-wing than people realized, the victory of same-sex marriage bans was put forward as evidence, alongside Bush's re-election.
Now, less than 10 years later, the tide has shifted sharply in mainstream politics, under pressure from mobilizations by supporters of marriage equality.
Prop 8 was the turning point in this respect. Protests against the bigoted referendum started the very night it passed in 2008 by a 52-48 percent margin. From San Francisco and Los Anglees, they spread to other California cities, and then to other states around the country. A new generation of activists--undeterred by the conventional wisdom that the U.S. population was too conservative to ever embrace same-sex marriage--was energized by determined actions against Prop 8 and and other anti-LGBT laws.
Less than a year after Prop 8 passed, a hastily formed national coalition, relying mainly on people newly involved in political activism, mobilized some 200,000 people to Washington, D.C., to demand full equality before the law for LGBT people.
The Obama adminstration--which, outrageously, had gone to court to defend both DOMA and the Pentagon's former "don't ask, don't tell" policy--continued to drag its feet.
But a shift was underway. In the run-up to the 2012 election, Obama and his advisers decided it was safe for the president to announce he had changed his mind and now personally supported marriage equality--though he undercut the statement with reactionary talk about state's rights. When the DOMA and Prop 8 cases came before the Supreme Court for briefs and arguments, a significant number of Republicans publicly made it clear that they wanted the justices to support equality.
More than 150 years ago, the Black abolitionist and former slave Frederick Douglass declared: "The whole history of the progress of human liberty shows that all concessions yet made to her august claims have been born of earnest struggle...Without struggle, there is no progress."
Wednesday's Supreme Court decisions on marriage equality gave us more evidence that Douglass was right.
These rulings aren't the end of the matter--far from it. Both are limited in important ways--and there are many, many more issues with nothing to do with marriage that need to taken up before LGBT equality will be achieved.
But in continuing these struggles, we can feel renewed confidence Douglass' point: Without struggle, there is no progress.
