Marriage Equality, the Supreme Court, and American Civil Rights Advocacy

Posted on June 26th, 2015 by SUZANNE GOLDBERG

Today’s marriage equality decision from the U.S. Supreme Court is powerful, transformative, and deeply gratifying.  Lesbian and gay couples are entitled to get married, if they choose, and to have their marriages recognized.

We have reached this point, as we often do in the American civil rights tradition, thanks first to individuals who took great personal risks, facing down hostility and daring to demand fair treatment and basic rights.  For same-sex couples, this meant individuals who could envision and claim their humanity far beyond what the law or surrounding communities would tolerate.

This was the work of gay couples in the 1970s and 80s who first applied for marriage licenses. Of Edie Windsor who sought recognition of her marriage at the U.S. Supreme Court two years ago. Of James Obergefell and the others whose marriages were recognized today by our nation’s highest court. Of so many couples who struggled to be recognized by their extended families, their employers, their faith communities, and their states.  And of their lawyers and advocates who, especially in the early days, found allies hard to come by.

But creating enduring change in this country also requires others who are not directly affected by the challenged discrimination and violence to take up the charge as their own.  For marriage equality, communities, including those with few openly gay leaders, were needed to support the then-deeply unpopular position that excluding same-sex couples from marriage was wrong.

And they did.  Faith-based groups, civil rights organizations, professional societies, and others wrestled, debated, and ultimately took up the marriage equality call. So too did family and friends, many of whom struggled with feelings of discomfort at first but became, over time, among the most vocal marriage equality advocates.

Elected officials came along as well – including those who once worked fervently to keep gay couples out of marriage but have, more recently, worked to make marriage equality a reality.  Artists and athletes also joined in, with some of the earliest supporters losing fans and sponsors as they committed themselves to justice on this issue.

These profound, hard-fought victories in our communities made it possible, in turn, for judges to see why it was constitutionally impermissible to deny marriage equality.  As Justice Kennedy wrote, “[t]he nature of injustice is that we may not always see it in our own times.”  Without change on the ground, the injustice of states shutting gay couples out of marriage would have remained as it was until today, unremedied.

Put another way, after decades of conversation, demonstration, writings, and more, the friction between foreclosing marriage to gay couples and basic constitutional guarantees of liberty and equality became intolerable.  This was Justice Kennedy’s point as well:  “When new insight reveals discord between the Constitution’s central protections and a received legal structure, a claim to liberty must be addressed.”

So here we are.  Nationwide marriage equality is now embedded in American constitutional jurisprudence.  And this constitutional embrace of equality is, in turn, now embedded in the fabric of American society.

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