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Today’s Court Ruling, Though Expected, is Still Shocking – Especially for Those Who Grew Up LGBT in the US

Outside City Hall in 1990, Chris Bartlett (left) and Dominic Piccirelli (right) hold a stretcher with a body at an ACT UP die-in. ACT UP die-ins were used to highlight the huge numbers of gay men still dying from AIDS due to government inaction. (Photo: David Acosta)

By a 5-4 majority, the U.S. Supreme Court ruled today that laws denying same-sex couples the right to marry violate the “due process” and “equal protection” guarantees of the Fourteenth Amendment to the Constitution. With or without the court ruling, full-scale marriage equality was an inevitability thanks to rapid trans-ideological generational change in how this issue was perceived; today’s decision simply accelerated the outcome.

All the legal debates over the ruling are predictable and banal. Most people proclaim – in the words of Justice Scalia’s bizarre and somewhat deranged dissent – that it is a “threat to democracy” and a “judicial putsch” whenever laws they like are judicially invalidated, but a profound vindication for freedom when laws they dislike are nullified. That’s how people like Scalia can, on one day, demand that campaign finance laws enacted by Congress and supported by large majorities of citizens be struck down (Citizens United), but the next day declare that judicial invalidation of a democratically enacted law “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

Far more interesting than that sort of naked hypocrisy masquerading as lofty intellectual principles are the historical and cultural aspects of today’s decision. Although the result was expected on a rational level, today’s decision is still viscerally shocking for any LGBT citizen who grew up in the U.S., or their family members and close friends. It’s almost hard to believe that same-sex marriage is now legal in all 50 states. Just consider how embedded, pervasive and recent anti-gay sentiment has been in the fabric of American life.

In the 1970s – just 40 years ago – the existence of gay people was all but unmentionable, particularly outside of small enclaves in New York, Los Angeles and San Francisco. If your first inkling of a gay identity took place in that decade, as mine did, you necessarily assumed that you were alone, that you were plagued with some sort of rare, aberrational disease, since there was no way even to know gayness existed except from the most malicious and casual mockery of it. It simply wasn’t meaningfully discussed: anywhere. It was so unmentionable that Liberace, of all people, long insisted to his fans that he was a “bachelor” due to his inability to recover from his tragic break-up with his fiance, the Norwegian figure skater Sonja Henie. With exceedingly few exceptions, openly gay figures in politics, sports, or entertainment were nonexistent.

In the 1980s – just 30 years ago – the U.S. held its first-ever sustained, serious public discussion of homosexuality. But that discussion was forced by the advent of a hideous, terrorizing, mysterious disease, which – in the public mind’s and the mind of many young LGBTs – came to define what it meant to be gay. Even then, as thousands of Americans were dying, the taboo against public discussions of homosexuality was so potent that politicians like Ronald Reagan and Ed Koch were petrified even of discussing this public health crisis, allowing it to grow and metastasize for years with almost no governmental mobilizing against it. In 1986, the U.S. Supreme Court upheld the right of states such as Georgia to criminalize gay sex and arrest and prosecute those who engaged it, on the ground – in the words of Chief Justice Berger – that “there is no such thing as a fundamental right to commit homosexual sodomy” and that “condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.”


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In the 1990s – just 20 years ago – anti-gay sentiment was so widespread that Bill Clinton signed two grotesquely bigoted and damaging laws: “the Defense of Marriage Act”, which barred the federal government from offering any benefits to same-sex couples (including crucial immigration and survivor rights), and “Don’t Ask, Don’t Tell,” which codified the ban on LGBTs serving in the military. DOMA passed the Senate on September 10, 1996 – less than 20 years ago – by a vote of 85-14, with the support of every Republican as well as people like Joe Biden, Chris Dodd, Pat Leahy, Patty Murray, and Paul Wellstone. In 1992, the State of Colorado actually enacted a constitutional amendment – Amendment 2 – overturning all existing local laws and banning all future ones that outlawed anti-gay discrimination. Gallup never polled on same-sex marriage until 1996, and when it did, found that Americans opposed it by a whopping 68-27% majority.

In the 2000s – just 10 years ago – opposition to gay marriage was so pervasive that every state referendum on the question rejected it. Putting it on the ballot became a vital GOP strategy for winning elections, a tactic engineered by then-closeted-gay-GOP-Chairman Ken Mehlman, who later came out and apologized. It was only in 2003 – exactly 12 years ago today – when the Supreme Court reversed its 1986 ruling and held that the criminalization of gay sex is unconstitutional (and even then, only by a 5-4 majority) – meaning that it’s only been 12 years that gay people have had the right to have sex in America without being prosecuted for it. In both the 2004 and 2008 election, the presidential nominees for both parties were adamantly opposed to same-sex marriage.

Read the full article at The Intercept.

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Glenn Greenwald

Glenn Greenwald

Glenn Greenwald is a Pulitzer Prize-winning journalist, constitutional lawyer, commentator, author of three New York Times best-selling books on politics and law, and a staff writer and editor at First Look media. His fifth and latest book is, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to his collaboration with Pierre Omidyar, Glenn’s column was featured at Guardian US and Salon.  His previous books include: With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the PowerfulGreat American Hypocrites: Toppling the Big Myths of Republican PoliticsA Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency, and How Would a Patriot Act? Defending American Values from a President Run Amok. He is the recipient of the first annual I.F. Stone Award for Independent Journalism, a George Polk Award, and was on The Guardian team that won the Pulitzer Prize for public interest journalism in 2014.

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