It’s amazing to witness the most powerful court in the land strike down a law that made you a second-class citizen. I found myself getting emotional this morning, something I didn’t expect but which attested to how long a struggle this has been.
But let’s remember that today’s big win on marriage equality comes at the end of a term in which the Supreme Court gutted the Voting Rights Act and punted on affirmative action. That a court could curtail rights one day and expand them the next, based on the opinion of one justice, underscores all that is troubling about this court. Let’s be clear about one thing: The overturning of the Defense of Marriage Act (DOMA) after this week’s other major court decisions is not indicative of this court’s embrace of civil rights as much as it reveals the precariousness of all our rights. It would be at our own peril not to keep in mind how rights can be rolled back on a whim.
The overturning of DOMA is monumental, ending almost 20 years of discrimination that was at the heart of unequal treatment of gay and lesbian Americans. The venomous arguments that members of Congress spewed as they passed the bill, which President Clinton signed in 1996, are still vivid in my mind. I’m enthralled to see DOMA dead and buried. But we must keep it in perspective. Contrary to those who claim the gay movement has “arrived” and that we’re at the precipice of “victory,” the truth is that we don’t have any federal protections of any kind — no employment protections, no protections in housing or public accommodations or credit.
Until recently, with the end of “don’t ask, don’t tell” (DADT) and now DOMA, we had laws that were put in place solely to prevent us from attaining rights and keep us as second-class citizens. Those federal laws are now gone, and we start with a clean slate. Now we can go about the process of getting full equality, actually attaining rights, in the states — where over 30 have bans on marriage for gays and lesbians — and federally, which will be the beginning of another long slog.
On Prop 8, it was a win, though not the mega-win that many, including power attorneys Ted Olson and David Boies, had hoped for. But the fight itself transformed the debate. Taking Prop 8 to the Supreme Court was a highly criticized prospect that was always risky, as the justices very well could have upheld Prop 8 rather than rule that marriage is a constitutional right for gays and lesbians. Going by their questions at oral arguments, it didn’t seem that the justices were anywhere near ready to do the latter. Some would say we got lucky that they decided not to rule on the merits and decided that the Prop 8 proponents didn’t have standing to bring Prop 8 to federal court. It means that Judge Vaughn R. Walker’s ruling stands and gay marriage returns to California. With the Golden State, the number of people in the U.S. who live in a marriage equality state expands dramatically, to almost one third of the U.S. population, and more than 25 percent of the states.