Supreme Court Disrobes Discrimination: The Marriage Equality Decision 

Posted: Friday, June 26, 2015 11:01 am

Just shy of 29 years after the Court ruled it was constitutional to arrest two gay men for what they did in private, the U.S. Supreme Court has ruled 5-4 that states may not prohibit someone from marriage on the basis of sexual orientation. Like its former leader Anita Bryant, the anti-gay movement in America has gone from triumph to bankruptcy, clinging to a belief (as per her ministry’s bio page) that she is the real victim and remains a “real heroine.”

I can still remember the excitement of hearing Ms. Bryant’s telephone call to us over the loudspeakers at a rally in San Antonio against an ordinance that would have banned housing discrimination based on sexual orientation. A nine-year old at the time, I carried a homemade protest sign upon which I had written in large letters with a marker that “Homos Need Help.”

In fact it was me, and my fellow protestors, who needed the help. We were using our Bibles as an excuse for hate much as segregationists had done decades earlier. Our hypocrisy became apparent to me in the years since, so much so that I felt compelled around the turn of the century to march in Waco in a parade supporting LGBTQ rights.

It had dawned on me that things condemned with much more frequency by the Bible, such as greed, are rarely if ever suggested as a basis for denying someone housing, employment or admission to the clergy. The obsession with sexual orientation was not driven by the Bible, merely excused with it. For her part, fighting the fight for the sanctity of marriage did not prevent Ms. Bryant from divorcing and remarrying, notwithstanding Jesus’ view (Matthew 19:9) that a second marriage equals adultery.

Like me, San Antonio too has seen the wisdom of reversing course. It is one of 11 Texas cities (including Waco) that now have in place at least some degree of protection against sexual orientation discrimination. Pulling back the veil on such discrimination, we see it is not the inspirational “Save Our Children” campaign Ms. Bryant tagged it as being. Rather it the poison fruit of the prejudices of history, cloaked in a nobility it never deserved.

Having myself once been a protester against gay rights, I need not grant the opponents of same sex marriage the grace that Justice Kennedy did in today’s decision. Writing for the majority, he said the view that marriage can only be between a man and woman “long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world.”

The State of Michigan stooped so low in oral arguments as to claim that outlawing same sex marriage promoted stable homes for children by discouraging the idea that people would marry based solely on love. The flimsiness of this argument is a hint that it is meant to cover an actual, more sinister motivation (what in law is called “pretext”). Kennedy and four other justices were not persuaded.

The Supreme Court held the right to marry worthy of governmental protection in its 1967 Loving v. Virginia case, striking down bans on interracial marriage. A primary question in the latest case was whether banning same sex marriage was a legitimate exercise of legislative discretion to deny marital benefits to those not traditionally granted them, or instead an unconstitutional denial of government benefits targeted based solely on archaic tradition.

Justice Kennedy explained that the petitioners in the case were not out to “denigrate marriage, but rather to live their lives, or honor their spouses’ memory, joined by its bond.” As with bans on interracial marriage, yesterday’s heroes become today’s bigots in the brighter light of hindsight. This Supreme Court decision is not about the high court taking a turn to the liberal left. Its decisions on voting rights and campaign finance make clear it can muster plenty of conservatism when it wants.

Instead it is about what was thought a left-wing view being shared by conservatives such as Justice Kennedy as well: the liberties protected by the Constitution extend even to those our forefathers deemed unworthy of their reach. As Kennedy noted, “rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” Later in the opinion he explained that “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” He traced the constitutional evolution in granting rights to women as an example.

Justice Roberts’ dissent is well-written and persuasive if read on its own. That is, until one realizes similar take-it-slowly-and-let-the-voters-decide arguments could have been made against the earlier decision striking down bans on interracial marriage. Justice Scalia’s dissent calling the ruling a “threat to American democracy” would have us believe he has no strong opinions about same sex-marriage laws. Instead he solely wants the voters and their legislators to decide the issue.

As we learned in the Shelby County Voting Rights Act case of 2013, Scalia and Roberts will not hesitate to strike down the will of the people when they consider it justified to protect others. The Voting Rights Act was renewed in 2006 with a 98-0 vote in the Senate and 390-33 vote in the House — margins unimaginable in today’s fiercely partisan climate. The votes were based on 20 hearings, testimony from more than 90 expert witnesses, totaling more than 15,000 pages of testimony supporting the continuing need for the law.

If Scalia truly considered legislative action sacred, he would have not so readily overturned that voting rights legislation to protect us from over-protecting African-American rights. It boils down to this: He believes there is something fundamentally different about same sex marriage that puts it out of reach of constitutional protection. It’s not normal; it’s not right; now’s not the time.

Today’s Supreme Court’s decision disrobes discrimination. “Because the Bible tells me so” is confirmed to be as poor an excuse for oppressing the LGBTQ community today as it was for oppressing African-Americans in the 1950s. Children will be helped, not hurt, by what happened today. The disdain with which we today regard yesterday’s segregationists today will tomorrow in the bright light of hindsight be applied to the opponents of marriage equality. Just as orange is the new black, Anita Bryant is the new George Wallace.

David Schleicher is an attorney with offices in Waco, Washington, D.C., and Houston.

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