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marriage equality
Cautious Celebration as Supreme Court Allows Marriage Equality to Remain Law of the Land
"We cannot take those protections for granted," said Michigan Attorney General Dana Nessel, who helped to legalize same-sex marriage nationwide a decade ago.
Nov 11, 2025
In one of vanishingly few US Supreme Court rulings protecting equal rights, the majority-conservative court on Monday rejected efforts to overturn the decade-old precedent of marriage equality.
Without issuing a comment, the court denied an appeal from Kim Davis, the former Kentucky county clerk who was ordered to pay $360,000 in compensation after she refused to issue a marriage license to a same-sex couple in defiance of the precedent set by the 2015 Obergefell v. Hodges decision.
Amid a flurry of rulings that have rolled back sexual and reproductive freedom in other realms—including for the LGBTQ+ community—the court's refusal to hear Davis' appeal was considered a small but still invigorating victory.
“The bar is in hell,” wrote Minnesota Gov. Tim Walz on social media. “But this is a win for decency and compassion.”
The ruling came as a relief to advocates for equal rights, who long feared that marriage equality might soon become the next target as the conservative movement grows increasingly hostile to the LGBTQ+ community.
In 2022, as the court's right-wing majority overturned the right to an abortion in the Dobbs v. Jackson Women's Health Organization case, the archconservative Justice Clarence Thomas signaled in a concurring opinion that it should be the start of efforts to fully revise the court's recognition of "substantive due process," that is, the recognition of rights not explicitly granted by the US Constitution.
He questioned not just the right of same-sex couples to marry, but the court’s entire recognition of the right to privacy established by the 1965 Griswold v. Connecticut ruling, which has been the basis for rulings against bans on homosexual relationships and the right to contraception.
Thomas was one of the four conservative justices who dissented from the majority's ruling in Obergefell. Two others—Chief Justice John Roberts and Justice Samuel Alito—also still serve on the court. The other three conservative justices who have been appointed since, all by President Donald Trump during his first term—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—have remained relatively coy on how they’d rule if marriage equality were to come back up, though they have sided with conservatives in cases that pitted religious liberty against discrimination protections for LGBTQ+ people.
In 2023, the six conservatives ruled that a Christian web designer was allowed to decline services to same-sex weddings, overturning a Colorado law that banned discrimination against gay people. Notably, the designer who brought the case had not actually been asked to design a website for any gay couple, but the court's right-wing majority accepted her case regardless.
This apparent zealousness to intervene in favor of discrimination appeared to be a red flag, but as Harvard University law professor Noah Feldman wrote for Bloomberg, Monday's ruling "is best read as a signal that the conservative majority has little interest in revisiting gay marriage," even as "the conservative constitutional revolution at the Supreme Court remains underway."
He notes that just four justices are required for a case to be heard by the court. And while it has aggressively rolled back the rights of transgender people, ended affirmative action, and recognized unprecedented executive authority for President Donald Trump, when it comes to same-sex marriage, "their silence is noteworthy."
Public support for marriage equality has grown considerably in the decade since Obergefell. In July 2015, a month after the court legalized same-sex marriage nationwide, 58% of Americans said in a Gallup poll that they agreed that same- sex couples should have the same rights as opposite-sex pairs. That number ballooned to a high of 71% in 2023, and even as attacks on LGBTQ+ people have ratcheted up intensely within the conservative movement, support for marriage equality remains stubbornly steady—68% of Americans still say gay marriages should be valid.
Michigan Attorney General Dana Nessel, who represented two of the plaintiffs in the 2015 case, said that while she welcomes the court's decision Monday not to erode the hard-won rights of gay people further, advocates should not become complacent.
"I am relieved for today’s decision reaffirming same-sex couples’ continued right to dignity and protection under the law, but we cannot take those protections for granted," Nessel said in a news release. “Members of this Supreme Court have already told us they are willing to overturn Obergefell. It’s only a matter of time before they do.”
Her state of Michigan is one of more than two dozen in which same-sex marriage would become illegal or face restrictions if Obergefell is overturned. She said that Monday's decision "allows us a reprieve, an opportunity to bring our state Constitution into alignment with the protections our residents are entitled to and have enjoyed for more than a decade. Now is the time to act."
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'Love Wins': Thailand Set to Be First Southeast Asian Nation to Legalize Same-Sex Marriage
"While there is no doubt that the legalization of marriage for LGBTI couples is a key milestone for Thailand, much more must be done to guarantee full protection," said one campaigner.
Jun 18, 2024
LGBTQ+ advocates around the world on Tuesday cheered the Thai Senate's passage of a bill legalizing same-sex marriage, a move that—if approved by the country's king as expected—would make Thailand the first country in Southeast Asia to do so.
The Bangkok Post reported Thai senators voted 130-4, with 18 abstentions, in favor of a bill to legalize same-sex marriages in the country of 72 million people. The Thai House of Representatives overwhelmingly approved the legislation in March. The legislation would become law if it passes further review by the Senate and the Constitutional Court and is approved by King Rama X. Royal assent is a formality that will almost certainly be granted.
"The bill represents a monumental step forward for LGBTQ+ rights in Thailand," Panyaphon Phiphatkhunarnon, founder of the advocacy group Love Foundation, told CNN.
Plaifa Kyoka Shodladd, an 18-year-old activist, told The New York Times that "after 20 years of trying to legalize this matter, finally, love wins."
In Asia, only Nepal and Taiwan have achieved same-sex marriage equality. Thailand would become the 39th nation to legalize same-sex marriage worldwide.
Legalization "would underscore Thailand's leadership in the region in promoting human rights and gender equality," said the Thai Civil Society Commission of Marriage Equality, Activists, and LGBTI+ Couples.
Amnesty International Thailand researcher Chanatip Tatiyakaroonwong said in a
statement: "Thailand has taken a historic step towards becoming the first country in Southeast Asia to legalize marriage for LGBTI couples. This landmark moment is a reward for the tireless work of activists, civil society organizations, and lawmakers who have fought for this victory."
"While there is no doubt that the legalization of marriage for LGBTI couples is a key milestone for Thailand, much more must be done to guarantee full protection of LGBTI people in the country," Chanatip continued. "LGBTI people in Thailand continue to face many forms of violence and discrimination, including but not limited to technology-facilitated gender-based violence, which often targets human rights defenders."
"Thai authorities must build on the momentum and take further steps that protect the rights and ensure the participation of LGBTI people and organizations," Chanatip added.
Thailand's imminent legalization of same-sex marriage equality stands in contrast with the hundreds of pieces of anti-LGBTQ+ legislation proposed or passed mostly in Republican-controlled state legislatures in the United States.
Advocates are also worried about the future of LGBTQ+ rights at the national level, as U.S. Supreme Court Justice Clarence Thomas suggested in Dobbs v. Jackson Women's Health Organization—the ruling that erased half a century of federal abortion rights—that the high court could reconsider cases including Obergefell v. Hodges, which in 2015 legalized same-sex marriage nationwide.
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Alito Renews Threat to Overturn Marriage Equality
"Overturning Obergefell is on their bucket list," said one journalist.
Feb 21, 2024
Trial attorneys in the U.S. frequently stop potential jurors from serving on cases based on their stated biases, but U.S. Supreme Court Justice Samuel Alito indicated on Tuesday that he was disturbed by a case out of Missouri in which three people were eliminated from a jury after expressing homophobic views—and suggested the high court should reconsider marriage equality to prevent such outcomes.
The Supreme Court declined to take up Missouri Department of Corrections v. Jean Finney, with none of the justices dissenting. But Alito appeared reluctant in his agreement with the other eight justices and released a five-page statement saying the case "exemplifies the danger that I anticipated in Obergefell v. Hodges," the 2015 case in which the court ruled 5-4 that same-sex couples in the U.S. had the same right to marry as heterosexual couples.
The case out of Missouri on Tuesday centered on Jean Finney, who said she faced discrimination at the state Department of Corrections (DOC) after she began a relationship with another woman.
During her court case, Finney's lawyer questioned potential jurors about their views on same-sex couples to ensure they didn't harbor a bias against the plaintiff.
The lawyer asked the potential jurors, "How many of you went to a religious organization growing up where it was taught that people that are homosexuals shouldn't have the same rights as everyone else because it was a sin with what they did?"
Three people were eliminated from consideration after stating they believed homosexuality to be a sin.
The jury ultimately sided with Finney in her case, and the state DOC asked for a re-trial, claiming the potential jurors' 14th Amendment right to equal protection under the law had been violated.
After the state Supreme Court declined to take up the case, Missouri Attorney General Andrew Bailey, a Republican, asked the U.S. Supreme Court to review it.
The case, said Alito in his statement, showed that "Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be 'labeled as bigots and treated as such' by the government."
The Obergefell ruling "made it clear that the decision should not be used" to discriminate against people for their religious views, wrote Alito, "but I am afraid that this admonition is not being heeded by our society."
Alito's comments come less than two years after Supreme Court Justice Clarence Thomas, also a member of the court's right-wing majority, signaled that the court should reconsider a number of rulings, including Obergefell and a case that guaranteed the right to contraception, following its overturning of Roe v. Wade.
Both Alito and Thomas dissented in Obergefell, arguing the ruling had no basis in the U.S. Constitution. In defense of a Kentucky clerk who refused to issue marriage licenses to gay couples in 2020, the two justices said the decision must be overturned to protect Americans from Obergefell's "cavalier treatment of religion."
"Overturning Obergefell is on their bucket list," said journalist Annika Brockschmidt of the right-wing justices.
At Slate, journalist Mark Joseph Stern noted on Tuesday that Alito's "sudden concern with the striking of a juror due to bias is especially jarring in light of his persistent cold shoulder toward those who faced openly racist juries."
In 2022, the court's right-wing majority rejected an appeal from Kristopher Love, a Black man who was sentenced to death by a jury that included at least one member who believed people of some races "tend to be more violent than others."
"In theory, the equal protection clause bars racism in jury selection," wrote Stern. "In practice, this Supreme Court regularly declines to enforce this guarantee—most often, when a Black defendant faces the death penalty—with Alito's assent."
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'Love Wins Again' as Greece Legalizes Same-Sex Marriage
Greek Prime Minister Kyriakos Mitsotakis called the legalization—a first by a Christian Orthodox nation—"a milestone for human rights."
Feb 15, 2024
Greece on Thursday became the first Christian Orthodox, 16th European Union, and 37th overall nation to legalize same-sex marriage, a move one rights group called "a huge step forward for LGBTQ+ people" in the Balkan country.
Members of the Hellenic Parliament from across most of the political spectrum came together in a rare moment of consensus, defying opposition from the country's influential Orthodox Church and voting 176-76 with two abstentions to pass the landmark reform.
In addition to granting same-sex couples marriage rights, the measure also opens the door to adoptions and confers parental guardianship rights to both parents in same-sex partnerships.
"Greece is proud to become the 16th E.U. country to legislate marriage equality," Kyriakos Mitsotakis, Greece's center-right prime minister, said on social media after the vote. Mitsotakis had promised to approve marriage equality legislation after his reelection last year.
"This is a milestone for human rights, reflecting today's Greece—a progressive, and democratic country, passionately committed to European values," he added, drawing some scornful replies highlighting the nation's treatment of asylum-seeking migrants.
During Thursday's parliamentary debate, Mitsotakis said that "people who have been invisible will finally be made visible around us, and with them, many children will finally find their rightful place."
Stella Belia, the head of same-sex parents' group Rainbow Families, told Reuters that Thursday's vote was a "historic moment" on a "day of joy."
"It makes life much, much easier for many people, and it protects children that have been living in a state of precariousness," Belia said in a separate interview with The New York Times.
Historian Nikos Nikolaidis said the vote marked "a very important step for human rights, a very important step for equality, and a very important step for Greek society."
Meanwhile, Archbishop Ieronymos, who heads the Greek Orthodox Church, said legalization will "corrupt the homeland's social cohesion," a position shared by the far-right Elliniki Lysi party.
Outside the Hellenic Parliament in Athens, proponents of marriage equality celebrated the vote.
"I'm very proud as a Greek citizen because Greece is actually—now—one of the most progressive countries," Ermina Papadima, a member of the Greek Transgender Support Association, told Reuters.
"I think the mindset is going to change," Papadima added. "We have to wait, but I think the laws are going to help with that."
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'Tip of the Iceberg': Thomas Says Court Should Reconsider Marriage Equality, Right to Contraception
"It is clear he and the court's majority have no respect for other precedents that have been won in recent decades," said Rep. Pramila Jayapal.
Jun 24, 2022
U.S. Supreme Court Justice Clarence Thomas made clear in his concurring opinion regarding the overturning of Roe v. Wade that the high court has no intention of stopping its rollback of Americans' rights, naming cases that centered on marriage equality and the right to obtain contraception as previous rulings that should be revisited.
"This Supreme Court is out of touch with the American people and increasingly suffers a legitimacy crisis."
"It does not end at abortion. Republicans will not stop until they have stripped away every freedom they can't load with bullets," said MoveOn Executive Director Rahna Epting, referring to this week's ruling by the Supreme Court's right-wing majority that New York's restrictions on carrying concealed weapons were unconstitutional.
In his concurrence, quoting Justice Samuel Alito's opinion, Thomas wrote, "I agree that 'nothing in [the court's] opinion should be understood to cast doubt on precedents that do not concern abortion.'"
"For that reason," Thomas wrote, "in future cases, we should reconsider all of the Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell."
The 1965 Griswold v. Connecticut ruling affirmed that the government cannot interfere in people's procurement of contraceptives, while Lawrence v. Texas in 2003 overturned a Texas law which had effectively made sexual relationships between people of the same sex illegal in the state. Obergefell v. Hodges, decided in 2015, affirmed that same-sex couples can legally marry.
Like the court's decision in Dobbs v. Jackson Women's Health Organization on Friday, the overruling of the decisions listed by Thomas would be deeply unpopular with the American public.
That is unlikely to stop the right-wing majority from overturning those rulings, said Rep. Pramila Jayapal (D-Wash.), chair of the Congressional Progressive Caucus.
"It is clear he and the court's majority have no respect for other precedents that have been won in recent decades," said Jayapal. "This Supreme Court is out of touch with the American people and increasingly suffers a legitimacy crisis."
The three liberal justices who dissented against the ruling denounced Alito's claim that the decision would not have an effect on other rights previously protected by the court.
"They are all part of the same constitutional fabric, protecting autonomous decision-making over the most personal of life decisions," the dissent reads. "The lone rationale for what the majority does today is that the right to elect an abortion is not 'deeply rooted in history.'"
Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer added:
The same could be said, though, of most of the rights the majority claims it is not tampering with... So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority's opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.
Economist Umair Haque said the ruling handed down Friday was "just the beginning, sadly, of the theocratic fascist project reaching its culmination in earnest now."
As progressives called for legislative and executive action to codify the right to abortion care into federal law, attorney and Democratic U.S. House candidate Suraj Patel called on Congress to "move now" to ensure the right to contraception, same-sex relationships, and marriage equality are protected.
"Congress has that power right now. Hold the vote," said Patel. "For 50 years Republicans told us their playbook, they attacked Roe at the edges, we didn't codify it. Let's not be naive and not anticipate what's coming."
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They're All Reactionaries
Aug 08, 2015
The news media is understandably trying to parse the words, tone, and body language of the Republican candidates' debate performances Thursday night to decide who "won" and "lost," who is on the rise and who is on the descent, and how they differ from each other.
But the most significant revelation from the debate is that all of them -- including the so-called "moderate" candidates (Jeb Bush, John Kasich, and Chris Christie) -- are right-wingers. On a scale of 1 to 10 -- with 10 being the most reactionary -- every candidate rated an eight or above.
Although they sought to distinguish themselves from each other -- such as the exchange between Rand Paul and Christie on balancing government surveillance and civil liberties in the fight against terrorism -- what was striking were their ideological similarities on the country's major issues. They differ in height, weight, charisma, personality, and bombastic (if that's a word), but there's hardly any distance between them regarding what they believe about government and public policy.
On every topic -- foreign policy, taxes, militarism (which nobody mentioned; they all want to increase the military budget), immigration (which divided the candidates between those who want a "wall" and those who prefer a "fence"), the economy, widening inequality, unemployment, poverty, the social safety net (which Republicans disparagingly call "entitlements" for the unworthy), health care (predictably about bashing Obamacare, not offering an alternative), racism (which got little attention last night), sexism (which they didn't discuss, but which Donald Trump proudly displayed), women's health care and abortion, Planned Parenthood (they're all against it), gay rights and marriage equality, education (barely mentioned except to promote privatization and attack teachers unions) -- they all used similar right-wing buzz words and talking points. One could hardly call them "ideas".
The only major difference between the candidates was Trump's refusal to pledge that he would not run as a third-party candidate if he lost the GOP nomination. This was in response to the moderators' first question of the evening, designed to embarrass Trump for not being a loyal Republican. However, he received both boos and applause for his answer. As I predicted in the Huffington Post two weeks ago, if Trump runs as an independent, he'll take votes from the GOP nominee and help put a Democrat in the White House.
Several candidates made sure we learned about their modest backgrounds. Kasich's dad was a mailman. Christie's father worked in an ice cream factory, and his mother was a secretary. Cruz's dad was an alcoholic until he found Jesus, at which point he returned to his wife and family and became an evangelist. Rubio's parents are immigrants from Cuba; his dad worked as a bartender, and until a few years ago, Rubio owed $100,000 in student debt. Bush claimed that because his dad and brother were both presidents, "the bar's even higher for me." (That reminds me of Jim Hightower's 1988 quip about Bush's dad: "He was born on third base and thinks he hit a triple").
There were no major bombshell disclosures, but there were a few surprises. Trump admitted that he once supported a Canadian-style single-paying health care system but now opposes it, although he couldn't explain what he thinks we should do about health care. He also reported that Hillary Clinton came to his 2005 wedding because he'd made a big donation to the Clinton Foundation.
Kasich tried to appear compassionate by telling the audience that he had attended the wedding of a gay friend, but also made sure he let folks know that he was an "old-fashioned person" who believed in "traditional marriage." Moderator Megan Kelly asked Scott Walker: "Many in the Black Lives Matter movement, and beyond, believe that overly-aggressive police officers targeting young African Americans is the civil rights issue of our time. Do you agree?" Walker ducked the question by calling for more training for cops. Kelly didn't follow up with Walker or ask any other candidate about racial profiling and the growing attention to police misconduct. The Fox News hosts only asked one other question about race relations. They directed it to Ben Carson, the only black candidate, who refused to acknowledge that racism is even a problem in the country.
Hardly surprising: Walker, Bush, Kasich, and Christie lied about their track records as governors on improving their states' economies regarding job growth and other measures.
Trump claimed his net worth is $10 billion, but Forbes and other sources say it is $4.1 billion. Marco Rubio said that "over 40 percent of small and mid-size banks ... have been wiped out" since the Dodd-Frank law was passed. Still, the total number of commercial banks has decreased by only 16 percent, continuing a long trend before Congress adopted the 2010 law. Kasich claimed that Ohio's Medicaid program "is growing at one of the lowest rates in the country," but it ranks in the middle. Bush, who claims to be an education expert, said the U.S. spends more per student than any other country. Still, Luxembourg, Switzerland, and Norway all spend more on primary and secondary education. If you eliminate school meal programs, transportation, and other non-classroom costs, the U.S. ranks much lower on the per-student spending scale.
The hosts made little effort to correct candidates' lies (except Trump's misstatements about his business bankruptcies) and obvious errors. For example, according to the debate transcript, Bush said, "Six million people are living in poverty today, more than when Barack Obama got elected." In fact, according to the U.S. Census Bureau, 45.3 million people were living in poverty in 2013, the most recent figures. Since 2010 -- after Obama was in office for a year -- the number of Americans in poverty declined by over one million, but the more telling figure, the poverty rate, declined from 15.1% to 14.5%. But it hardly mattered because the Fox News hosts didn't ask a single question about poverty, and only Bush mentioned it.
The predictable attacks on President Obama and Hillary Clinton were all about symbols, not substance. However, the best dog-whistle moment in the debate was when Carson answered a question about Hillary Clinton by referring to her allegiance to "the Alinsky model." He was referring to the late community organizer Saul Alinsky, whom conservatives like to demonize as a Democratic devil for advocating protest tactics. No doubt Carson's comment went over the heads of the audience in the Cleveland arena and most TV views, but I guarantee that Fox News, the conservative blogosphere, and whoever becomes the GOP's presidential candidate will try to pillory Hillary with the Alinsky brand, just as they attacked Obama for once having been a community organizer.
The unspoken controversy in the debate was how Ohio Gov. John Kasich wound up on the stage. As MSNBC's Rachel Maddow reported on Wednesday, Fox News rigged the outcome to guarantee that Kasich got into the prime-time event in his home state. Fox News would use the five most recent national polls to determine which 10 candidates would compete in the main debate. Still, it did not use the fifth most recent national poll (an NBC/Wall Street Journal) conducted through July 30 but instead used a Quinnipiac University poll conducted through July 28. The difference between those two polls meant that Kasich made it into the debate. Texas Gov. Rick Perry was pushed into the second-tier debate yesterday, receiving much less media attention.
The Fox News hosts also dissed Perry when they asked Mike Huckabee, "Will you abolish or take away the powers and cut the size of the EPA, the IRS [and] the Department of Education?" This was a not-too-subtle reminder of a moment during a 2011 GOP debate when Perry could not recall the third of three federal agencies he'd promised to eliminate, finally muttering "oops" to acknowledge his gaffe. (Perry mentioned the Departments of Commerce and Education but forgot the Department of Energy. After that incident, his campaign nosedived).
Last night's debate (fueled by the questions from the three Fox News hosts) was about throwing red meat to the Tea Party, the Koch brothers, and loyal Fox News watchers. It shows how far the GOP has moved to the right since the 1980s and especially since the rise of the Tea Party (funded by right-wing billionaires and enabled by Fox News and the Limbaugh lunatic fringe) in 2009.
Although many candidates described themselves as Ronald Reagan Republicans, even Reagan -- much less Dwight Eisenhower -- would have felt uncomfortable on that stage last night. And how sad that Jon Stewart is leaving The Daily Show just as the GOP's circus is coming to town.
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The Warren vs Roberts Courts: Separate and Unequal Views on Marriage Equality
Jun 29, 2015
The Supreme Court's ruling Friday to legalize same-sex marriage is a victory for human rights and an occasion to rejoice. The decision follows in the footsteps of the Supreme Court's 1967 decision in Loving v. Virginia that outlawed states' bans on interracial marriage, an earlier pathbreaking victory for marriage equality.
But there is a huge difference in the two rulings. The Loving decision on inter-racial marriage was unanimous. Friday's ruling on same-sex marriage was a 5 to 4 decision. We should not forget that four members of the nation's highest court -- Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas -- opposed marriage equality. Each had his own reasons to justify his vote to himself and to the public, but history will record that all four of them supported state's rights over equal rights, bigotry over tolerance. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Anthony Kennedy (who was the swing vote and who wrote the majority decision) will be remembered for embracing the notion that marriage is a matter of personal choice.
How do we explain the difference in these two rulings? Friday's decision certainly reflects the increasing partisanship and polarization of American politics. But they also reflect differences in the court's leadership then and now.
The Supreme Court that decided the Loving case was hardly a group of similar thinkers. It included a moderate Republican (Chief Justice Earl Warren), two conservative Republicans (John Harlan and Potter Stewart), a moderate Democrat (Byron White), and two Southern Democrats (former KKK member Hugo Black of Alabama and Tom Clark of Texas), as well as three solid liberal Democrats (William Douglas, William Brennan and Abe Fortas).
The Loving v Virginia ruling was particularly bold because, at the time, public opinion was overwhelmingly against interracial marriage. In the 1950s, half the states still had laws prohibiting interracial marriage. According to the Gallup Poll, in 1958, 94 percent of Americans were against marriage between whites and blacks, while only 4 percent said they approved. By 1967, when the Supreme Court knocked down state anti-miscegenation laws everywhere, 16 states still had such laws on the books. Gallup didn't conduct a poll on the issue that year, but the following year, 73 percent of Americans still disapproved of inter-racial marriage, while 20 percent approved. It wasn't until the 1990s that a majority of Americans told pollsters they supported interracial marriage.
One could not have predicted from the make-up of the court that all nine of the justices would embrace equal rights over states rights. What led the Supreme Court in 1967 to be so far ahead of public opinion?
The Warren Court's 1954 Brown v Board of Education ruling, outlawing school segregation, had triggered a white backlash in the South, galvanizing a resistance movement and a revival of the Ku Klux Klan and other hate movements, with the Confederate flag its symbol of defiance, and the use of vigilante tactics -- including bombings, lynchings, and other forms of violence -- to oppose racial integration and equality. Warren became a hated figure among segregationists, who waged a campaign for almost two decades calling for impeachment. At the time, Southern racists used the idea of "states' rights" to defend Jim Crow laws, including school segregation, racial discrimination in restaurants and buses, severe limits on voting by African Americans, and bans on interracial marriage.
But the Brown ruling had also spurred a new wave of courageous civil rights activism, beginning with the 1955 Montgomery bus boycott, the 1957 desegregation of Little Rock, Arkansas' schools by brave black children, the lunch counter sit-ins that began in 1960 in Greensboro, N.C., the Freedom Rights, and the courageous voter registration drives sponsored by the NAACP and the Student Nonviolent Coordinating Committee (SNCC). Civil rights activists put their bodies and their lives on the line. Many were injured, and some were killed by racist thugs who were part of, and/or inspired by, the organized hate groups like the KKK and the White Citizens Councils.
In 1964, Congress passed the Civil Rights Act. The next year, following the civil rights marches in Selma, Alabama, President Lyndon Johnson -- a Texas native who had been, at best, a moderate on racial issues -- addressed Congress and urged it to pass the Voting Rights Act, ending his speech with the phrase "we shall overcome." Later that year, Congress enacted that historic law.
The civil rights movement had stirred the nation's conscience about racial injustice. In deciding the Loving case, the justices no doubt recognized that, despite the fact that most white Americans still opposed interracial marriage, the tide of history was turning, and they wanted to be on the right side.
But do not underestimate the influence of one man, Chief Justice Earl Warren, in forging the unanimous Loving decision. Warren was not a great legal scholar, but he was a brilliant politician whose views on race and civil liberties had evolved over the years. As California's Attorney General, he had played a key role in detaining Japanese Americans during World War Two on the grounds that they posed a security risk as potential spies and saboteurs. Only in retirement did he acknowledge that the relocation was a mistake based on hysteria. When President Dwight Eisenhower appointed Warren -- who had been the Republican governor of California and the GOP's Vice Presidential nominee in 1948 with running mate Thomas Dewey -- he thought he was naming a conservative to the nation's highest court.
Warren joined the court just before it heard new arguments in the Brown case. Knowing that the decision would be politically controversial, Warren sought a unanimous decision. He assigned the job of writing the opinion to himself, and then, like a shrewd politician, he met with each of his eight colleagues separately and listened to their views in order to construct a decision that they could all agree on. After he brought the last holdout, Justice Stanley Reed, on board, Warren drafted the ruling. He wrote:
"We cannot turn the clock back. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws."
The Warren Court subsequently issued liberal rulings in other civil rights cases, but the Loving case promised to be as controversial as the Brown ruling. As with the Brown case, Warren believed that the nation needed to see the Supreme Court united on this potentially explosive issue.
The case was filed by an interracial couple -- Mildred Jeter Loving, a black woman, and Richard Loving, a white man -- who lived in Central Point in rural Virginia. The Lovings were a humble working-class couple who simply wanted to live as husband and wife and raise their three children in Virginia, where they were born and where they and their extended families lived.
In June 1958, they drove 90 miles and got married in Washington, D.C., to circumvent Virginia's Racial Integrity Act of 1924, which made interracial marriage a crime. The local police raided their home at night, hoping to find them having sex, which was also a crime in Virginia. The cops found the couple in bed. Mrs. Loving showed them their marriage certificate on the bedroom wall. That was used as evidence that they had violated Virginia's law. The Lovings were charged with "cohabiting as man and wife, against the peace and dignity of the Commonwealth."
In his ruling, Leon M. Bazile, the Virginia trial judge wrote:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
On January 6, 1959, the Lovings pled guilty and Bazile sentenced them to one year in prison. The judge said he'd suspend their sentence if they agreed to leave the state for 25 years. They agreed and moved to Washington, D.C.
In November 1963, the Lovings filed a motion in the state trial court to reverse the sentence on the grounds that it violated the Constitution's 14th Amendment. It took four years to reach the U.S. Supreme Court.
When it did, Warren again used his political skills to push for a unanimous verdict.
It was certainly, in today's parlance, no slam dunk. Five of his Supreme Court colleagues had been appointed by Democratic presidents -- Douglas and Black by Franklin Roosevelt, Clark by Harry Truman, White by John F. Kennedy, and Fortas by Lyndon Johnson -- but they espoused different views on a variety of legal and social issues.
As Southern Democrats, Black and Clark understand how explosive the Loving case would be. Black, who had represented Alabama in the U.S. Senate from 1927 to 1937, no doubt felt guilty for his racist past. In 1926, running for the Senate, Black joined the Ku Klux Klan, thinking that he needed the votes of Klan members. He spoke at Klan meetings, espousing anti-black and anti-Catholic views. Near the end of his life, Black would admit that joining the Klan was a mistake, but he went on to say "I would have joined any group if it helped get me votes." In 1929 Black wrote to a constituent denouncing an inter-racial marriage in New York, observing that "New York State should have a law prohibiting this sort of thing," according to Roger Newman's Hugo Black: A Biography. In the Senate, Black was an ardent New Dealer, but hardly a progressive on racial issues. He consistently opposed the passage of anti-lynching legislation. In 1935, for example, he lead a filibuster of the Wagner-Costigan anti-lynching bill.
Clark, a Texan, was an assistant to U.S. Attorney General Biddle when the Japanese attacked Pearl Harbor in 1941. Biddle named Clark to be Civilian Coordinator of the Alien Enemy Control Program. He worked with General John DeWitt and then-California Attorney General Earl Warren to evacuate Japanese Americans from military areas, which eventually (after Clark was reassigned to Washington in May 1942) led to their forcible relocation to prison camps. Like Warren, Clark later acknowledged that the government's relocation program was a mistake. Appointed Attorney General by Truman in 1945, Clark helped formulate and carry out Truman's aggressive Cold War anti-communist policies, including requiring federal employees to sign loyalty oaths and creating a list of so-called "subversive" organizations that were used by witch hunters to blacklist liberals and radicals. But Clark also played a key role in supporting Truman's civil rights efforts. He filed a brief in the landmark (and controversial) Shelley v. Kraemer case which, in 1948, struck down racial covenants in housing contracts restricting the sale of property to blacks. He also helped oversee Truman's civil rights committee that released an important report, "To Secure These Rights," which made 35 recommendations, including ending segregation, elimination of poll taxes, enactment of a law to protect voting rights, and creation of a civil rights division at the Department of Justice.
Three of Warren's Supreme Court colleagues -- Harlan, Brennan, and Stewart -- had, like Warren, been appointed by Republican President Dwight Eisenhower. Harlan was generally a conservative jurist but he often voted in favor of civil rights; in this he was similar to his grandfather and namesake, who was the only dissenting justice in the landmark Plessy v. Ferguson case which, in 1896, upheld the constitutionality of state laws requiring racial segregation under the doctrine of "separate but equal." But Harlan was the lone dissenter in the 1964 Reynolds v Sims decision, which established the principle of "one man, one vote" to ensure equal protection under the Fourteenth Amendment. In 1956, Eisenhower appointed Brennan -- who New Jersey's Republican governor had appointed to that state's court -- for purely political reasons. Brennan was a Democrat and a Catholic and Eisenhower, who was running for re-election, wanted to appeal to both groups. Only one Senator, Republican Joe McCarthy of Wisconsin, voted against Brennan's confirmation. Stewart was from a prominent conservative Republican family in Ohio and was often a dissenter on the Warren court, but in 1965, in Shuttlesworth v. City of Birmingham, Stewart was in the majority that ruled that police could not use an anti-loitering law to keep civil rights workers from standing or demonstrating on a sidewalk, a clear victory for the civil rights movement.
As he had done in the Brown ruling thirteen years earlier, Warren penned the opinion for the court. Noting that the Virginia law endorsed the doctrine of white supremacy, he wrote:
Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival... To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.
The Supreme Court had spoken, but public opinion, particularly in the South, lagged behind. In 1969, members of Georgia's state legislature and Board of Regents objected to hiring former Secretary of State Dean Rusk to a teaching job at the University of Georgia because he had participated in his daughter's wedding to a black man. Although the Loving ruling invalidated state laws banning inter-racial marriage, many Southern states were slow to erase their own laws. South Carolina didn't repeal its law until 1998; Alabama didn't do so until 2000.
Reread Warren's words. Then substitute same-sex marriage for interracial marriage and see if his views are any less compelling. Most Americans would now agree that to deny gays and lesbians the right to marry is, as Warren put it, "directly subversive of the principle of equality at the heart of the Fourteenth Amendment."
Indeed, the Loving case helped lay the foundation for the dismantling of state bans on same-sex marriage.
In June 2007, on the 40th anniversary of the case that bore her name, Mildred Loving issued a statement that said:
I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry... I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.
Public opinion on gay marriage has shifted much faster than it did on inter-racial marriage, according to surveys by the Pew Research Center and the Gallup Poll. In 1996, only 27 percent of Americans believed it should be legal for gay and lesbian couples to marry, Gallup found. Ten years later, it had increased to just 37 percent. Today, however, that number has increased to 60 percent, an all-time peak. Moreover, support for gay marriage is much higher among younger Americans. Pew found that among Millennials (Americans between 18 and 39), 73 percent endorse gay marriage. Support has also been increasing among older Americans. Among baby-boomers (those who are now between 51 and 69), support for same-sex marriage has increased from 32 to 45 percent since 2001.
When children born this year reach voting age 18 years from now, they will surely wonder how it was even possible that America once deprived gays and lesbians the right to marry. They will take same-sex marriage for granted.
Homophobia has not disappeared, but the gay rights movement has clearly won most Americans' hearts and minds. The tide has turned. Opponents can try, but they can't push it back.
But four members of the current Supreme Court are stilling trying to do so. Among the five justices appointed by Republican presidents, only Anthony Kennedy, a Reagan appointee who is often the court's swing vote, has evolved with the times.
Unlike their counterparts on the 1967 Warren Court who unanimously ruled for marriage equality in Loving v Virginia, the other four GOP appointees -- Scalia (appointed by Reagan), Thomas (appointed by George H.W. Bush), and Roberts and Alito (both appointed by George W. Bush) -- are locked into their personal and ideological positions. They don't seem to care about being on the wrong side of history.
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On Marriage Equality, Another Bend Toward Justice
Jun 28, 2015
Members of the Gay Men's Chorus of Washington, wearing blue T-shirts emblazoned with the name of a popular gay sports bar in Washington, were on a strategic street corner singing "The Impossible Dream," the Supreme Court to their front and the Capitol to their rear.
Following that star, no matter how hopeless, no matter how far. If there ever were an impossible dream, marriage equality was it just a few short years ago. Even some of the most ardent crusaders for gay, lesbian, bisexual and transgender equality believed that demanding recognition for same-sex marriage was a fool's errand.
But people in love can be the most audacious of rebels. So it was that seven same-sex couples sued the state of Massachusetts in 2001, at a time when some Democrats in the state legislature were helping to lead the anti-marriage-equality effort and much of the gay rights establishment had not yet devoted significant firepower to defend the couples. The ruling that the state Supreme Court handed down in 2003 ruling that prohibitions against same-sex marriage was unconstitutional not only shook the nation, but it challenged those of us in the LGBT rights movement to not constrain our political agitation to the limits of what was politically possible, but to agitate to change what is politically possible.
Other bold couples teamed up with legal teams around the country, with the support of LGBT rights organizations and a growing constellation of civil rights allies. Couples in Massachusetts led the way again in 2009 in challenging the Defense of Marriage Act, the legislation that President Bill Clinton now recognizes was one of the worst stains on his legacy. Their perseverance led to the Supreme Court ruling in 2013 that the Defense of Marriage Act was unconstitutional.
That set the stage for the legal collapse of gay marriage bans around the country. By the time Justice Anthony Kennedy read his landmark decision in Obergefell v. Hodges this morning, marriage equality was already the law of the land in 36 states, either through judicial or legislative action. That meant that roughly 70 percent of the country was living in a state where same-sex marriages were legal - and the parade of horribles predicted by anti-marriage-equality conservatives was not happening.
What was happening instead was what Mary L. Bonauto, the lawyer representing the couples in the Massachusetts case and who argued on behalf of gay couples in this latest case before the Supreme Court, described in a column today in The Boston Globe. As Kennedy announced his ruling, "I recalled the many voices from government leaders to clergy to everyday people who moved us forward: the Catholic mother who wanted her gay son to be able to marry, the Connecticut state trooper who demanded that the government protect her family should she be injured in the line of duty, the New Hampshire Marine who wanted to be his gay brother's best man one day."
A phrase that quickly comes to mind is the famous quote from Dr. Martin Luther King Jr.: "The arc of the moral universe is long, but it bends towards justice." Sometimes, as President Obama said in his Rose Garden remarks today, change only comes through the plodding, painstaking persistence of dedicated people, their successes measured in modest increments that are too often offset by frustrating setbacks. "Then there are days like this, he said, "when that slow, steady effort is rewarded by justice that arrives like a thunderbolt."
The president went on to say that the ruling is not only a victory for LGBT people but "a victory for America" and for the notion that "when all Americans are treated as equal, we are all more free."
This ruling does not put to rest the struggle for LGBT equality, no more than a series of racial equality victories before the Supreme Court and in Congress put to rest the struggle for racial equality - just ask the people of Charleston, S.C., who today are putting to rest the Rev. Clementa Pinckney, the pastor of Emanuel AME Church who was gunned down with eight of his parishioners by a Confederate flag-waving racist.
Pinckney, by the way, was an African-American preacher who likely would have celebrated this day were he alive. "He gave me his assurance then that he was on our side," Jeff Ayres of South Carolina Equality told Mother Jones.
So this moment of celebration, as is so often true, comes mixed with a heavy reminder of the work that must be done - as well as a lesson in the value of the persistent pursuit of justice.
"Tragedy after tragedy remind us that people are still targeted for discrimination and even unspeakable violence because of who they are," Bonauto wrote. "Friday's decision should energize us for the urgent and ongoing work to achieve justice not only for all LGBT people but for all Americans. As we celebrate this landmark ruling, let us also rededicate ourselves to ensuring that all Americans -- no matter who they are or where they live -- have the same opportunities and freedom to live equally, safely, and securely."
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Same-Sex Marriage Isn't Equality for All LGBT People. Our Movement Can't End
Who in our community will be left to push for full equality for all transgender and queer people, now that this one fight has been won?
Jun 26, 2015
It wasn't that long ago - 4 November 2008 - that the US had an election that galvanized a generation of activists to change policies in this country that would have enshrined into law the continued marginalization of a large group of people. I'm not talking about who was elected president, or which political party took the most seats in Congress: rather, a ballot initiative in the state of California, called Proposition 8, passed by a four-point margin that night and successfully amended the state's constitution by adding language that defined marriage as being between "one man and one woman".
Now, not fully eight years later, the US supreme court ruled in favor of full marriage equality across America. And while on that night back in 2008, as I considered the long-term consequences of California's newly enshrined discrimination against same-sex couples - including the possibility that the thousands of couples who married in the months prior might have effectively been "divorced" by a voting majority of their neighbors, coworkers and families - I felt faint and ran to the bathroom to throw up, today I am happy for that part of my LGBT community which has gained a well-deserved measure of equality.
But I worry that, with full marriage equality, much of the queer community will be left wondering how else to engage with a society that still wants to define who we are - and who in our community will be left to push for full equality for all transgender and queer people, now that this one fight has been won. I fear that our precious movements for social justice and all the remarkable advancements we have made are now vulnerable to being taken over by monied people and institutions and that those of us for whom same-sex marriage rights bring no equality will be slowly erased from our movement and our history.
The unexpected shock of a marriage equality loss in California in 2008 - a state that I, like many others, ignorantly deemed "too liberal" to actually pass such a measure - brought millions of people together to focus on marriage equality - crystallizing a previously fractured LGBT rights movement that had seemed to have lost its way politically. The purpose of the movement was to educate and promote the equality of all people.
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Love Prevails! Gay Marriage is the Law in America
Antonin Scalia is furious, of course, attacking everyone and everything, including Justice Kennedy's writing style, hippies, California and fortune cookies. Wisconsin Gov.
Jun 26, 2015
Antonin Scalia is furious, of course, attacking everyone and everything, including Justice Kennedy's writing style, hippies, California and fortune cookies. Wisconsin Gov. Scott Walker is puffing out his scrawny white male chest, wailing for a Constitutional amendment. Other nutballs and extremists are in a panic, too: Mike "Sniffing Glue" Huckabee is, you might say, freaking out. A deeply disturbed guy from the American Family Association is equating the decision to Pearl Harbor and 9/11. A very unfortunate pastor in Texas will shortly be setting himself on fire, because that's what he promised to do and hey, God is watching, right?
Nevertheless, they finally did it. SCOTUS, very narrowly, very reluctantly, against all their famously regressive instincts and against the last, cruel vestiges of virulent homophobia in the land, let love in. Gay marriage is now the law of the land. Now and forever.
The most surprising thing, really, is that the decision wasn't more unanimous, that, after 36 states have already legally validated same-sex marriage, after tens of thousands of gay couples have already been enjoying the fruits (and surely, the pits) of state-sanctioned marriage, after the tone and timber of the country, the culture, the younger generations, the outright moral and spiritual obviousness have all shifted dramatically in favor of "the last civil right," that the issue still wasn't foregone, that there was still a real and present threat, in the form of the still very hotly regressive wing of the Supreme Court.
Of course, that's not how this Roberts court works, and it wouldn't be the harshly conservative, often downright nasty SCOTUS we know and are forced to endure today if Scalia and his crew didn't at least make a few ugly, historic wails of dissent over a harmless, open-hearted variation of love they, like millions of older, calcified conservatives, refuse to understand.
Nevertheless, it's official: the last remaining serious challenge to same-sex marriage in America has been shot down by a narrow (but expected) 5-4 vote, with Thomas, Roberts, Alito and, of course, the ever gay-hating Scalia all writing lengthy dissents, the contents of which will surely be, at least in Scalia's catchy, meaner-than-thou timbre, nicely quotable for years to come. The decision takes effect immediately.
Meanwhile, love prevails. The last civil right has been vindicated. America, once again and just for a glorious, fleeting moment, lurches just a little more forward. Praise Jesus and pass the rainbow glitter.
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