The Supreme Court’s recent decision extending marriage rights to same-sex couples was remarkable and predictable.
The decision was remarkable because it so powerfully and unequivocally established constitutionally protected rights for gay and lesbian people. Many of us of a certain age grew up assuming that our sexual orientation relegated us to a lifetime of second-class citizenship. It was unfair, to be sure, but it was just a reality that we had come to accept given the hand we were dealt.
While our relationships surely felt as real as any others, we did not expect validation beyond that coming from our close friends and, if we were lucky, our families. Governmental recognition and the many benefits that flow from it were simply beyond reach.
The legal landscape buttressed this pessimistic view of our lot in life. The Supreme Court in the early 1970s dismissed without comment an appeal from a same-sex couple seeking the right to marry. It was too absurd a claim to merit serious consideration by the court.
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If I had any awareness of that development at that time (which is doubtful), surely I, like virtually all other Americans, would have agreed with the court’s assessment. The notion of people of the same sex marrying was beyond our imagination in those early years of the gay rights movement.
Then, in the middle of the next decade, the Supreme Court, in an opinion oozing with contempt for gay and lesbian persons, determined that states were absolutely free to criminalize same-sex, private, consensual sexual behavior. By criminalizing a class of persons, states were free to deprive us of employment protections, adoption rights and many other basic rights.
Given this landscape, I, like many, was deeply in the closet, living unauthentically to avoid the loss of friends, or even worse. I remember, in the mid-’70s, tearfully and nervously coming out to a handful of college classmates, truly expecting a negative reaction. While I was lucky in that most of these friends were untroubled by my sexual orientation, we all knew too that it was something to be kept among ourselves, our little secret. I felt somehow defective because of the powerful same-sex attractions I had been experiencing from my earliest memories.
Being part of a group that was so often reviled, mistreated and even ridiculed ensured low expectations by many of us about what our future portended.
That was then.
The Supreme Court’s June 26 decision was predictable because so much has changed over the last couple of decades. An increasing number of LGBT folks and heterosexual allies started to see the status quo as unfair and intolerable. Public attitudes toward LGBT persons started changing as the media increasingly portrayed gays and lesbians in a positive light, taking us from quirky and sinister to often downright adorable and nonthreatening. (Thanks, Ellen.)
In the 1990s, perhaps energized by our hard work in providing help to those suffering from HIV/AIDS, we started to demand more forcefully some sort of relationship recognition along with basic protections from discrimination. In the early 1990s, I had the chance to work on gay and lesbian legal issues as an inaugural member of the California State Bar’s Committee on Sexual Orientation Discrimination. That exposed me to some remarkable people at the forefront of the fight for LGBT civil rights. By the middle of the decade, I was teaching a seminar on lesbian, gay, bisexual and transgender legal issues at McGeorge School of Law.
And, in the mid-1990s, Justice Anthony M. Kennedy penned his first gay rights opinion for the Supreme Court in which he started the process of bringing us into the sphere of constitutional protection, explaining that laws disfavoring LGBT folks could not be justified simply because of animus toward the group. Kennedy explained that “A State cannot deem a class of citizens a stranger to its laws.”
The following decade, Kennedy, writing for the majority, struck down the nation’s existing sodomy laws. In so doing, for the first time he spoke in powerful terms about the dignity of LGBT persons and about our right to autonomy and self-actualization. Kennedy made it clear that the Constitution was intended by the Founders to be an evolving document, inviting every generation to “invoke its own principles in their search for greater freedom.” The court, thanks to Kennedy, took us from criminals and pariahs to persons worthy of meaningful constitutional protection.
And, just two years ago in United States v. Windsor, Kennedy explained the many ways in which the provision of the Defense of Marriage Act that denied federal benefits to legally married same-sex couples unconstitutionally demeaned LGBT persons. Again, he wrote powerfully about how DOMA was unconstitutional as it singled out a class for unequal treatment simply because of animus toward the group.
While Kennedy’s opinion two years ago dealt just with existing same-sex marriages, virtually all lower courts interpreted its broad language about the dignity to which same-sex relationships are entitled to mean states must open the institution of marriage to same-sex couples in the same way it is available to opposite-sex couples.
Kennedy in June agreed that the Constitution’s liberty and equality provisions require all states to provide same-sex couples access to marriage. He explained: “Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.”
Teaching Kennedy’s opinions has allowed me to envision a different future for LGBT persons living in this country. No longer are we “strangers to the law.”
The battle over whether gays and lesbians have a constitutional right to marry is over. But the issues surrounding whether LGBT folks will be treated with the kind of dignity that Kennedy wrote about in other contexts have just started. In most states, the same-sex couples who marry can be fired from their job the next day for doing so. And just like any civil rights struggle, the backlash will be ugly. A business in Tennessee has just posted a sign reading “No Gays Allowed” in its window.
While these skirmishes play out, one thing is clear. The LGBT community will no longer accept, as so many of us did in earlier times, being relegated to second-class citizenship.
Lawrence C. Levine is a law professor at the University of the Pacific, McGeorge School of Law.