Is Gay Marriage Safe?

There are many reasons to hope that the freedom to marry victory remains secure—even while there is reason, of course, to fear.

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This piece was originally published by the Los Angeles Blade.

As the shock of actually seeing a Supreme Court draft opinion overturning Roe v. Wade sunk in, reporters and many concerned people once again started asking me whether the Republican Party and the Supreme Court it has packed with agenda-driven justices pose a threat to same-sex couples’ freedom to marry, which we won through a decades-long campaign. My one-word answer was and is: vote. 

When an alarm sounds and there’s a fire in your kitchen, you don’t sit back and debate whether it might spread to the bedroom. You fight the fire. 

Don’t waste time and energy sitting around cataloging all the many additional bad things that might happen. What’s happening right now, to women, to all of us, is bad enough – and we can do something about it. We can elect representatives who will defend the rights of Americans and strengthen our democracy, who will pass legislation to protect voting rights and reproductive rights (and elections, economic opportunity, racial justice, and more), and who will select judges and justices who are faithful to the Constitution, not to theocratic ideology, partisan or shadowy funders’ regressive agendas, or an oligarchic wealth and power grab. We can vote out the elected officials who are dividing Americans to distract and demoralize them, foisting their unpopular minority views on our pluralistic people, driving our country into a ditch.

Those who would roll back the clock on America’s progress, and even undermine American democracy itself, didn’t succumb to despair, cynicism, apathy, or inaction, and nor should we. We can mobilize and turn out. We can overcome obstacles. We can reclaim power.

Who gets elected makes a difference. 

Republican senators, led by Mitch Mc Connell, stole a Supreme Court seat (now filled by Neil Gorsuch). They railroaded through a second Trump nominee (Brett Kavanaugh) without meaningfully investing his sketchy past (not just the credible charges of lying about a sexual assault, but Kavanaugh’s paper trail while in government and even his finances and the unresolved question of who paid off his debts). They ruthlessly (and hypocritically) seated a third Trump nominee (Amy Barrett) literally in the middle of an election. They pretended to believe that these nominees would respect precedent. And, of course, it was Republican presidents who packed the Supreme Court with litmus-tested ideologues; would Hillary Clinton have appointed the three right-wingers that Trump did? Would Al Gore have chosen the likes of Samuel Alito? 

Voting, or not choosing to turn out to vote, has consequences.

The justices installed by Republican presidents who didn’t even win the popular vote have gutted voting rights, subverted labor organizing, shifted the rules of the economy to favor the wealthy, carved out special licenses to discriminate under the guise of religious freedom, impeded progressive and pro-environment actions of government (intended to be, as FDR put it, our people’s “greatest single instrument of cooperative self-help”), and now, come after women’s empowerment and health.

No political party, no politician, is perfect, but the difference between the Democrats and Republicans today could not be starker – not just because they differ radically on matters of policy, but because the primary difference is now that one is the Democratic Party and the other is anti-democracy itself. 

And the difference between heading in the right direction and the dark place American politics is in right now can turn on as small a number as two: If there were two more Democratic senators, notwithstanding Republican obstruction and Trumpist lies, the Senate would dispense with the filibuster and follow the House in passing legislation to safeguard our elections and Americans’ right to vote, assure access to abortion, reform policing, invest in the middle class, extend the Child Tax Credit, address the need for safety in the face of the insane prevalence of guns, and so much more. Urgently needed reforms to protect and reinvigorate our Republic, including Supreme Court expansion, would be on the table as correctives or at least deterrents (full disclosure: I am on the advisory board of Take Back the Court). President Biden and progressives (who right now are leading effectively despite having zero political margin) would be delivering much more on what they ran on, what a majority voted for, and the country would be moving forward faster.

If you want a better Supreme Court, if you want better policies, if you want a better democracy, you must vote and get others to vote.

Justice Alito in his draft rightly notes that in some ways, abortion is different from other questions, and professes that that distinguishes the right to choose an abortion, which the majority takes away, from other rights, such as the freedom to marry without restriction based on race or sex.  “We emphasize,” Justice Alito writes in his draft, “that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” 

Analysts are right not to believe him. He and Justice Clarence Thomas, at least, have indicated their absolute desire and intention to go after the freedom to marry as well as other basic rights, including contraception. Justice Alito’s draft contains an attack on the very idea that the Constitution protects an underlying liberty (sometimes denoted as our right to privacy, or our right to autonomy); the “unenumerated” right that the Court has invoked to affirm American’s freedom to make important life-defining choices, such as when and whether to bear a child, or to have sex, or whether and whom to marry. 

Justice Alito pretends that because the word “abortion” is not in the Constitution, it is not protected. (The Constitution also does not contain the word “marriage” – or, for that matter, the words “freedom,” “education,” “corporation,” or “judicial review”). What the Ninth Amendment does say, of course, is “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” 

That clear constitutional text won’t be enough to stop Justices Alito and Thomas. But the fact that they may be ready to roll back the gains of the past fifty or more years, or overturn the New Deal, doesn’t mean there are five votes to fully adopt the specious, fraudulent attack on Americans’ underlying liberty that the draft opinion sketched out, or to follow it to where he might want to go. 

More than a million gay people have gotten legally married in the US. We didn’t win marriage as a gift from the Court; we mobilized, organized, persuaded, shared our stories, fought, and worked for decades to change hearts and minds, and then the law. We won in legislatures, in state courts and then federal, at the ballot, and in millions of personal conversations. When I wrote my law school thesis in 1983 advocating for the freedom to marry, polls showed support at 11%. We grew that to 63% by the time we went for the win at the Supreme Court in 2015, and support has widened and deepened since. The latest polls now show support for the freedom to marry at 70%, including majority support even among those over 65, even among those still willing (despite Trump, despite Putin) to identify themselves as Republicans. We won by overcoming losses and turning “no” into “yes.”

There are many reasons to hope that the freedom to marry victory remains secure—even while there is reason, of course, to fear.

But, again, we shouldn’t be sitting around cataloging, fretting, or waiting in dread of additional bad things. Trump and his enablers are mounting a continuing coup attempt. Extreme candidates threaten to take power in states and in the House. And now looms the despicable prospect of a constitutional right such as a woman’s right to choose – embedded in the law and our lives for nearly half a century – being cynically stripped away, with all the harm that will inflict on women, children, and families. We know enough already.

Instead of worrying about whether the freedom to marry is at risk, we must heed the call to action already upon us. By taking action now, above all by winning elections, we will best undo the damage and move our country forward, the best protection for all that we care about.