It is my nature to be pessimistic. Expecting the worst enables me to be more often pleasantly surprised than emotionally crestfallen.
It is no surprise, then, that I set out to warn that the current steady progress toward marriage equality could come to an abrupt halt. While it is true that every court that has ruled on the issue of the right of gays and lesbians to marry since last June’s two U.S. Supreme Court gay rights victories has come down on the side of marriage equality, these lower court decisions can be readily undone.
The Supreme Court has yet to resolve two major issues: first, whether all states must permit gays and lesbians the right to marry, and second, whether states must recognize legally valid same-sex marriages performed in other states. The Supreme Court will surely have the chance to resolve these questions in the not too distant future, and, despite language in last summer’s decisions that gives marriage equality proponents hope, the outcome is far from certain.
But in the wake of recent events, it is hard to embrace my instinctive pessimism.
Not only did May 17 mark the 60th anniversary of Brown v. Board of Education, it also marked the 10th anniversary of the first same-sex marriages in the United States. Even for me, it is hard to deny that the progress on gay rights generally and on marriage equality specifically has been nothing short of remarkable.
For starters, people of the same sex are now married in a fast-increasing number of states including Arkansas – Arkansas! Since last summer’s Supreme Court decisions, state bans on same-sex marriage have been overturned or weakened by 13 federal court rulings. While it has become hard to keep up, gays and lesbians may now marry in 19 states, with more surely to follow soon.
In addition, the first openly gay player has been drafted recently by the NFL – complete with a same-sex kiss broadcast on ESPN.
These are developments that I never dared to imagine. Even as we entered the current century, I never envisioned people of the same sex marrying. Like many of my fellow baby boomers, I grew up on “Ozzie and Harriett” and “My Three Sons,” which, despite a rather curious living arrangement, did not portend the right of people of the same sex to marry. During my joyful cohabitation with the love of my life that ended with his death from AIDS in 1992, I never dared to imagine that we could – or even should – be permitted the right to marry. A bridge too far, that.
The notion that gays and lesbians could marry was so far beyond my ken that even as an academic teaching about sexual orientation law and as an advocate for LGBT rights, I misconstrued the efforts of those fighting for marriage equality. To my great chagrin, I recall articulating the position some years ago that these marriage equality advocates were only engaging in a clever ploy: By pretending to seek full marriage equality, gays and lesbians might actually be able to get some marriage substitute such as domestic partnerships. Separate and not really equal was all I had the capacity to imagine.
Like many, I now see the future more optimistically – especially on the marriage equality front. The efforts of the Family Research Council and other organizations of that ilk notwithstanding, the path toward marriage equality now seems inevitable. We have progressed from a time where those who supported marriage equality did so at their peril to a time where, in many contexts, it is actually not OK to publicly oppose equal marriage rights.
The sea change cannot be ignored. A sitting president now unwaveringly supports marriage equality. And it is hard to imagine a Democratic candidate for that office taking a different position. Even the Republican Party finds itself divided on the issue. For example, aware that the direction of public opinion is firmly toward support of marriage equality, the Nevada Republican Party recently removed language opposing it from the party’s platform.
Corporate America, too, has determined that anti-marriage-equality positions are perilous. Mozilla quickly removed its chief executive officer after news surfaced of his support for an anti-marriage-equality amendment. Even the corporate poster child for opposition to marriage equality, Chick-fil-A’s Dan Cathy, has apologized for getting his company embroiled in the issue. Remember when J.C. Penney, Wendy’s and Chrysler pulled their ads from the TV show “Ellen” in 1997 because Ellen DeGeneres’ character was coming out as lesbian? Tellingly, DeGeneres is now a spokesperson for J.C Penney.
At the end of the day, the future of marriage equality is a bright one simply due to demographics. Most of America’s young people do not understand why two people in love should be denied the right to marry because they happen to be of the same sex.
I am not entirely naïve. I recognize that the path toward marriage equality will not be free of bumps and setbacks. But I now dare to allow myself to imagine living in a nation in which all states allow gays and lesbians access to marriage. This is a remarkable change!
Now, might I mention that in most states in this country today a person can be fired simply for being lesbian or gay?
Lawrence C. Levine is a law professor at the University of the Pacific, McGeorge School of Law.