Gay Marriage is Fundamental but it is past time to Address other Injustices
So the nine most powerful people in America – three women and six men in robes, all of whom profess to be straight – met this week to consider the most important legal matters of our time. Among the cases the US supreme court announced on Thursday morning that it would hear this term: one that could empower racial housing discrimination, and a couple others aimed at “shrinking voting rights or loosening campaign finance rules”. Not among them – not until at least next week, anyway – are any of the seven pending cases that could decide, once and for all, finally and at long last, if millions of families headed by same-sex couples can be legally married.
The cases span from Utah, where the population is split on marriage equality, to Virginia, where a clerk is fighting marriage while the governor is supporting it. In the midwest, scandal-plagued Wisconsin governor Scott Walker is challenging the right of a lesbian (named Virginia Wolf) to wed, while nearby Federal Judge Richard Posner, appointed by Ronald Reagan, ruled Indiana’s argument against equality “is so full of holes that it cannot be taken seriously”.
All the cases provoke the Supremes to address a simple matter avoided by 2013’s landmark, but incomplete, decisions on Doma and Prop 8. They ask a question left unanswered for too long in a nation full of sudden majority acceptance: do LGBT Americans have a constitutional right to get married? Well, here’s a more complicated one: is marriage enough?
It’s tempting to wonder if Justice Scalia and his ilk want to hear the one or two gay marriage case least likely to provide clear answers, or if the notorious Justice Ginsburg and her jazzercise posse will push the one most likely to end, as clearly and with as much finality as possible, our relegation to “skim milk marriage”.
Ginsburg made her milk comment during oral arguments for Windsor v US, the case that wound its way to the high court and struck down section three of the anti-gay Defense of Marriage Act. It was argued by attorney Roberta Kaplan, who warned me on Wednesday against speculating too much about which new LGBT marriage cases the justices might accept, or when.
“I haven’t figured out the magical formula that has allowed me to read the justices’ minds,” Kaplan told me, laughing, while recalling that she and her plaintiff, Edie Windsor, had to wait for months into the 2012 term to find out if the Supremes would take up their case.
We are sick of waiting for answers. We are sick of waiting until next week, and the week after that, especially considering octogenarians like Windsor and nonagenarians like Alice ‘Nonie’ Dubes and Vivian Boyack literally cannot wait forever. Equality shouldn’t take this long anymore, when gay marriage is palatable to straight people and politically safe for politicians. But like me, Kaplan has been surprised at the speed of Windsor’s effect on marriage law, with “40 pro-equality cases” in about a year. Marriage equality, she reminded me, is still on a roll:When Doma passed passed in 1996, not a single state allows same-sex couples to marry – and it didn’t apply to anyone until relatively recently, in 2003, when marriages start in Massachusetts. In 2010, only five states, not including New York, allowed marriage. By the time I argued, in 2013, it was nine. When the case was decided, it was 12. Today, it is 19, plus another 14 opinions saying [marriage bans are unconstitutional], but are stayed pending appeal. ... The majority of states, and certainly a majority of the American population, live in states where couples are getting married.
Seven months ago in these pages, Kaplan predicted that “Windsor was the Battle of Normandy” in the battle for gay rights. Now we have to conquer the rest of Europe, as it were.
We are sick of waiting for the hammer to fall on gay marriage, because the conquest isn’t just marriage equality for all – the conquest is all equal rights for all.
Indeed, for everything it’s done done for people like Edie Windsor, who shared financial assets (including a house in the Hamptons) with her late wife, marriage is inadequate for expanding rights to queer people who are not married, who are poor, or both. Marriage doesn’t help homeless kids, who are disproportionately LGBT. Marriage doesn’t get healthcare for the HIV-positive single person. Being married won’t help you if you are fired, legally, because you are gay.
I asked Kaplan about that harsh reality – that marriage isn’t the only venue for gay rights, especially when it is often sold with the appearance to benefit rich, white and even straight people, not to mention their lawyers who make millions fighting that singular fight. (“It never occurred to me not to take it pro-bono,” Kaplan said of taking the Windsor case for free.) She admits that gay rights have gotten to a point where “if you’re middle class or above, we can can have wonderful lives.” Kaplan added:
It can’t be that you only get to enjoy these benefits if you have the money to do so. It’s time to address social and economic inequality.
This is why Kaplan says she has chosen to broaden her focus towards battling HIV. But she maintains that marriage equality has been fundamental to this broader battle: once we’re legally equal in marriage, she argues, you can’t “treat gay people unequally regarding any other right. Under the logic of Windsor, I don’t think any government agent can discriminate based on sexual orientation.”
Which is still pretty utopian, if you ask me. Because private agents are another matter – perhaps requiring a supreme resurrection of the proposed 1974 Equality Act, which “would have added sexual orientation to the Civil Rights Act of 1964, the gold standard among anti-discrimination laws”. Because any queer rights legislation is dead on arrival in Congress, as equality eludes LGBT Americans in arenas from the workplace to the DMV. Because there is too much work to be done for America to be waiting.
Marriage may be the most pragmatic and legally convenient game right now. But equality is incomplete, whether we’re on the Notorious RGB’s dance card or not.
Comments