On Friday, the Justices of the Supreme Court will come together to determine if they will hear arguments on whether gays and lesbians have a constitutionally protected right to marry. With their decision comes the potential to move this country forward and bury a shameful history of discrimination the fails to reflect the American belief in equality before the law.
Seeking change by way of legal process is an undeniably slow undertaking; just ask the myriad of minority groups that toiled for decades to secure (arguably) equal treatment before our nation’s courts. African Americans had to fight for nearly a century after the emancipation proclamation to secure even the most basic levels of equality, desegregation. Women, despite securing the right to vote by constitutional amendment in 1919, were denied constitutional protection from systemic and institutional discrimination until the 1970’s.
All such discrimination is a stain on our collective history and serves as a stark reminder of the bigotry and hatred millions had to fight to overcome. The modern shame of institutional discrimination on the basis of sexual orientation is just as unacceptable and continues to place America on the wrong side of history. The need to declare discrimination on the basis of sexual orientation unconstitutional is long overdue.
Fortunately, ever since the Supreme Court’s 2003 decision in Lawrence v. Texas, the path towards constitutional protection for gays and lesbians became more inevitability than pipe dream. In Lawrence, the Supreme Court struck down a Texas law criminalizing gay sex by a 6-3 vote, declaring it an unconstitutional and discriminatory violation of privacy.
Writing for the majority in Lawrence, Justice Anthony Kennedy declared that a law discriminating against gays “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” In her concurrence, Justice Sandra Day-O’Connor was even more direct, arguing that the Texas law was little more than the distillation of a “desire to harm a politically unpopular group.”
Since the decision in Lawrence, nine states (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, and Washington) and the District of Columbia have legalized same-sex marriage. Just a few weeks ago, Maryland, Maine, and Washington became the first states to legalize gay marriage by popular, rather than legislative, vote. Federally, the Obama administration repealed Don’t Ask, Don’t Tell, the policy prohibiting gay and lesbian citizens from serving openly in the military, and has given up defending the Defense of Marriage Act, a federal law defining marriage is between one man and one woman, in court. Generationally, the gap in favor of marriage equality makes eventual full legalization certain, with younger voters supporting gay marriage roughly two to one.
With the Justices set to choose a potential case to hear by week’s end, the stage is set for gay rights to follow in the footsteps of the civil rights campaigns of the past in securing legitimacy and legal protection from the nation’s highest court.
Of the remaining dissenters in Lawrence, only two (Scalia and Thomas) remain on the bench. The liberal quartet of Justices Ginsburg, Breyer, Kagan, and Sotomayor will likely be joined by perennial swing voter Justice Anthony Kennedy, the author of the Lawrence opinion, in declaring discrimination on the basis of sexual orientation unconstitutional.
A decision finally and formally declaring discrimination on immutable characteristics unconstitutional will be a watershed moment for gay-rights advocates. Harvard legal historian Michael Klarman told the AP that a decision on gay marriage “could be the Brown v. Board of Education of the gay-rights movement,” referencing the landmark Supreme Court decision which declared segregation unconstitutional. Klarman is spot on. With the decision in Brown, the federal government was given the power to enforce desegregation, ushering in the legal protection necessary to pave the way for the Civil Rights Act of 1964. The gay marriage cases before the Court tomorrow undoubtedly hold the same potential.
Should the Justices decide to give gay marriage its day in court, and I do believe they will, the book of history will reflect their decision as the official “beginning of the end” for institutional discrimination on the basis of sexual orientation. When the Justices announce their decisions on which cases they intend to hear this term early next week, gay rights advocates will be poised to see their dreams come one extremely important step closer to reality in 2013.
For an in-depth look at the gay marriage cases before the Supreme Court read Mark’s extended coverage here.