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The Past and Future of (Same-Sex) Marriage
With its ruling in Obergefell v. Hodges, the U.S. Supreme Court took a step that seemed unimaginable two decades ago, when I started researching same-sex marriage. Many politicians, pundits and commentators have rightly hailed the Court’s decision as both just and historic. Legal experts can parse the finer points of the majority opinion and the four separate dissents, but let’s take this momentous occasion as an opportunity to reflect on where we have been on this issue, and what the future may hold.
First, a look backward. Although the dissents in Obergefell claimed that Americans should be given more time to sort out this issue through the democratic process, the history of the struggle over same-sex marriage is actually rather long. The first court ruling on the issue dates back to 1971, when the Minnesota Supreme Court found in Baker v. Nelson that neither the state nor the federal constitution guaranteed a right to same-sex marriage. But the issue really broke into public consciousness in the mid-1990s, when another state supreme court — this time in Hawaii — ruled its state constitution did in fact require the state to issue marriage licenses to same-sex couples.
That ruling prompted Congress to pass the Defense of Marriage Act (DOMA) in 1996, and many state legislatures (including Hawaii’s) passed their own “baby DOMAs” to ensure they would not have to recognize same-sex marriages. Then in 2004 Massachusetts became the first U.S. state to issue marriage licenses to same-sex couples, and for the next decade opponents and advocates of marriage equality fought ferocious and emotional battles in state after state.
Speaking in the Rose Garden shortly after the Obergefell decision came down, President Obama lauded the ruling and asserted that the result was a consequence of “countless small acts of courage” by people who came out to others and stood up for themselves. Obama framed the marriage victory as “a vindication of the belief that ordinary people can do extraordinary things,” and those words resonated for me as I thought about the plaintiffs in the earliest marriage cases — in Minnesota, Hawaii and elsewhere — who pursued dignity and equal treatment on their own, without the support of a coordinated, strategic effort by the national LGBT rights movement.
Indeed, it was only after the initial favorable ruling in Hawaii that the national gay rights groups were willing to devote significant attention and resources to the marriage issue, a detail that is easy to forget after years of high-profile, professionalized activism on marriage equality. Even those in the LGBT community who think other issues should have had priority over marriage, or who reject the institution outright, must be heartened by this evidence that major social change that starts at the grassroots is still achievable in our age of deep political cynicism and polarization.
The little-noted irony of the marriage equality victory is that it arrives at a moment when more heterosexual Americans are turning away from marriage. This “retreat from marriage,” as family scholars call it, manifests in lower marriage rates, a higher age at first marriage, more children born to unmarried parents, and a high divorce rate. The causes of the retreat from marriage are complex, but it’s clear the phenomenon is not spread evenly over the American population; it is disproportionately people on the lower rungs of the socioeconomic ladder who are delaying or foregoing marriage, or dissolving their existing marriages.
The economic conditions produced by de-industrialization and globalization are a significant factor: Stagnant wages and employment insecurity place less-educated Americans in a precarious position, and many now view marriage as a kind of middle-class luxury good that is out of reach or irrelevant to their daily struggles to survive.
Recognizing this larger reality of American marriage does not negate the value of expanding marriage rights to include same-sex couples, but as we celebrate marriage equality we must also acknowledge that the broader retreat from marriage is both a cause and a consequence of widening economic inequalities in our country. The optimism and enthusiasm of same-sex couples choosing marriage may be refreshing, but it will probably do little to reverse these broader trends.
Where are we headed? In the short term, the nationalization of same-sex marriage recognition will further increase the cultural visibility of sexual minorities and “alternative” family forms. Legal battles over same-sex marriage will shift to the terrain of religious liberty, where opponents of marriage equality will seek to use religious freedom arguments as grounds for ongoing discrimination against same-sex couples. Even if those legal fights are resolved fairly quickly, it will not be time for the LGBT rights movement to declare victory and close up shop.
The majority of U.S. states still lack anti-discrimination laws covering sexual orientation and gender identity, and efforts to pass a federal employment non-discrimination law have failed repeatedly in Congress. Hate crimes and bullying continue to pose difficult and sometimes life-threatening challenges for sexual minorities and gender variant people. And while Caitlyn Jenner’s coming out has generated mostly positive reactions, transgender rights issues are only starting to get the attention they require.
Finally, I hope that LGBT folk of all political persuasions will view the marriage victory as an invaluable opportunity to dedicate our resources and creativity to more coalition-building with other groups fighting for social justice. In public statements on the steps of the Supreme Court right after the ruling was announced, both lead plaintiff James Obergefell and plaintiffs’ attorney Mary Bonauto made a point to acknowledge the deep pain of the Charleston massacre and the reality that discrimination and hate persist in many forms in contemporary America. I thank them for using their moment in the public spotlight to link LGBT rights struggles to other important issues confronting our nation. Their sentiments represent the most inspiring and expansive elements of the LGBT rights crusade: a recognition of the importance of dignity and equality for all people, of how struggles for social justice are interlinked, and of the power of coalitions to create strength greater than the sum of their parts.
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