Momentous Change in American Culture

November 3, 2014
Joanna W. LiCalsi
National Law Journal

A decade ago, only one state allowed same-sex marriage. We've made progress, but not enough.

Ten years ago, one state recognized same-sex marriages — Massachusetts. As of Oct. 7, some 35 states had legalized it, led by the U.S. Supreme Court's Oct. 6 denial to review appellate decisions from five states that invalidated same-sex marriage bans.

The enormity of this moment in history cannot be understated. The minority has become the majority. Sixty-five percent of all Americans now live in states where gay people can get married, and there are few lingering doubts that, in the relatively near future, every American will live in an equal-marriage state.

Many conservative politicians are so angered that they have taken on the tone of outrage that follows a terrorist attack. For instance, Sen. Ted Cruz, R-Texas, referred to the Supreme Court's decision as "tragic and indefensible." Sen. Mike Lee, R-Utah, (from one of the five states denied review) was upset not only about the outcome but also the judicial system itself, calling the justices "unelected, politically unaccountable judges." Lee and other conservatives focused the lens of gay marriage early as a highly moralized political issue — one perfectly fit for the justices and other "unelected, politically unaccountable judges" — rather than a civil rights or a constitutional issue.

This is not a political issue. This is a human rights issue. A day after the Supreme Court effectively allowed same-sex marriage in 30 states, Judge Stephen Reinhardt wrote the unanimous opinion of the three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. That decision cleared the way for gay marriages to begin in Idaho and Nevada.

Reinhardt pointed out the vicious hypocrisy that has loomed over the fight for equal marriage rights since the beginning of the debate. He wrote that classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in 'family values.' " The ruling also highlighted the "profound legal, financial, social and psychic harms on numerous citizens of [states with same-sex marriage bans]."

Although those of us who support the equal right to marry are pleased with the consequences of the Supreme Court's denial of review, some were left disappointed — understandably so — that the court didn't take this as an opportunity to put the issue to an end, once and for all, and declare same-sex marriage a constitutional right. Evan Wolfson, president of Freedom to Marry, criticized the Supreme Court's action (or inaction) as "prolong[ing] the patchwork of state-to-state discrimination." It's a fair argument.

It is clear to those on the right side of history that arguments against marriage equality, quite plainly, are based on fear and hate. That fear and that hate is now part of our public judicial record in the forms of arguments and "studies" purporting to show that gay marriage harms children and will ruin heterosexual marriage. Fearmongering has no place in a judicial system that values facts above emotion. Polls have shown that about 55 percent of all Americans support same-sex marriage. For the new minority, the writing is on the wall. The country is leaving them behind.

The high court may soon get another opportunity to declare same-sex marriage a constitutional right. Marriage-equality claims are pending on appeal in both the Fifth and Sixth circuits. Some of these cases are rife with findings of fact about the positive values of gay and lesbian families — and the falsities of age-old arguments against same-sex marriage as a direct threat to heterosexual marriage.

Maybe, with these cases, the Supreme Court will take a cue from Reinhardt, who deftly addressed the outrageous claims against equality, noting, "We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs and rock-and-roll."

At least two same-sex weddings have been held at the Supreme Court, one officiated by retired Justice Sandra Day O'Connor and the other by Justice Ruth Bader Ginsburg, who has personally officiated over three same-sex marriages. Justice Elena Kagan joined their place in history in late September, officiating over the marriage of her former clerk and his husband in Maryland. This is the world in which we now live, and the Supreme Court, albeit slowly, is becoming part of it. No one will ever be able to prove that same-sex marriage harms anyone, because it doesn't. That, it seems, might be the true loss for those opposing marriage equality — the loss of any legitimacy to their arguments and the reality that intolerance is their only sword. San Francisco Supervisor Harvey Milk said, "It takes no compromise to give people their rights … It takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression."

As this country continues to renew and shed layers of old, dead skin, it becomes apparent that the next generation will grow up in a world none of us has ever known. Although the process feels slow at times, and we still must tally up states to keep track of how equality is measured, we must remember that it is momentous progress. Even the Roman Catholic Church is ushering in a new era, thanks to Pope Francis' more tolerant tone toward gays and lesbians than previous popes.

Equality seems to be catching on.