#23) Is Gay Marriage at Risk?

Will Obergefell be next?

My dear readers: in light of recent events, I felt it appropriate to take a week to address the elephant in the room: the potential that Roe v. Wade could be overturned, and the impact on gay marriage and LGBTQ rights. While I have used the Straight to Gay project to take a break from my work as an activist, and to share my truths and misadventures as a way to empower others and make them feel seen, this looming decision is too big to ignore. The realms of my activism and living as a gay woman have once again collided!

The early stories in this Straight to Gay project take us back to the late 1990s. As you’ve been reading, the country was an entirely different place back then for both LGBTQ acceptance and rights. There was no such thing as gay marriage. Being openly LGBTQ was grounds for being fired from your job (even in blue states), losing custody, and being excluded from adopting. Same-sex benefits did not exist, let alone being recognized as a significant other to visit a partner hospitalized for a medical emergency. LGBTQ acceptance was low, with only one-third of Americans supporting gay marriage.

The past two decades have been transformative, for both LGBTQ rights and acceptance. Part of what I want to accentuate in going through the timeline is how quickly rights were achieved, and therefore how fragile they could be. Progress happened at such warp speed, it’s hard to remember what life was like before it; for that same reason it is important to understand the implications of what is now at stake!

There were four Supreme Court decisions which had major impact on LGBTQ lives in the past two decades. The first three, like Roe, involved constitutional rights. We’re going to walk through the timeline of progress, but first a mention of the fourth decision, a recent landmark ruling on discrimination which provided clarification of a term. In 2020, the Supreme Court clarified the definition of the word “sex” in the 1964 Civil Rights Act, ruling that it protects LGBTQ people from employment discrimination on the basis of sexual orientation and gender identity. This ruling was in reaction to the Trump administration siding with three employers who fired employees on that basis.

Now let’s walk through the timeline of progress since the millennium. It starts with the legalization of gay sex. Yes, you read that right! It was illegal to have gay sex in many states prior to 2003, until a landmark decision, Lawrence v. Texas, in which the Supreme Court ruled criminal punishment for those who commit so-called sodomy was unconstitutional. In doing so, the court reaffirmed the “right to privacy” in the Fourteenth Amendment to the Constitution. The basis of this decision was similar to earlier cases such as Roe. And as with Roe, the Supreme Court ruling rendered state laws on sodomy null and void.

Concurrently in 2003, Massachusetts became the first state to legalize gay marriage. On a personal note, weeks after, I went to a wedding in Boston for a couple who had been together for more than a decade, but prior were legally considered no more than two men living in the same apartment. We all cried tears of joy—finally! At last! It took years for other states to follow. Even New York and California, viewed as the prototypical blue states, didn’t legalize gay marriage until 2008. And it wasn’t until 2012 that the standard-bearer of the Democratic Party, then President Barack Obama, announced his support for gay marriage.

A year later, in 2013, the patchwork of state-recognized gay marriage was challenged, in the United States v. Windsor, a challenge to the federal ban in the Defense of Marriage Act (DOMA). Lawyer Roberta Kaplan argued that after Eddie Windsor’s partner died in New York, where they were legally married, since gay marriage wasn’t recognized at the federal level, Windsor was unduly burdened with extra federal estate taxes. During questioning, then Justice Ruth Bader Ginsburg infamously compared gay marriage to “skim milk,” saying, if “no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave…What kind of marriage is this?” In a 5-4 decision, DOMA was found to be unconstitutional, as a “deprivation of the liberty” protected by the Fifth Amendment.

Two years later, in the 2015 landmark ruling Obergefell v. Hodges, the Supreme Court struck down all state bans on same-sex marriage. In another 5-4 decision, similar to Roe, the court cited the realm of personal “liberty” that the government cannot enter, as part of the Fourteenth Amendment. The court cited the Lawrence and Windsor cases, as well as others which relied on the Fourteenth Amendment, including rulings on interracial marriage and the right to contraceptives. Progress builds on progress.

I need to pause here and note that gay marriage has been legal for a mere seven years. This basic right to love who you love seems like a fabric of our lives now, but that is an illusion. If a right granted five decades ago like Roe, which stands on similar precedent, can be in jeopardy, so too can other basic rights recently granted. While our country’s acceptance of gay marriage  increased to 70 percent, don’t let this give you a sense of false comfort: roughly the same percentage of Americans believe Roe should remain in place.

If Roe is to fall, many legal experts speculate Obergefell could be next, since the foundation of both is reliance on liberty or privacy under the Fourteenth Amendment. Like Roe, the right to same-sex marriage would revert back to the states. Dozens of states still have arcane laws on the books dating back to before Obergefell, which ban gay marriage. Without the Supreme Court ruling in place to override these laws, the states would automatically revert back to those outdated bans. A few states have taken the time to overturn their own bans, but those are in the minority.

Can we imagine a scenario where rights are finally granted to us, only to have them snatched away? This is the shaky ground on which we are now standing. Roe being overturned could have a domino effect on the three landmark decisions which at long last granted the LGBTQ community basic rights and liberties.

Fortunately there is something we can do in the short-term, and that is to get out the vote. Ask allies, friends, classmates, family members, and others who care about LGBTQ people to do the same. Every election matters—not just the big presidential election years—rights can be won or stripped away at the state and local levels. Our right to love who we love is on the ballot. Our right to visit our partner in a medical emergency is on the ballot. Our right to medical benefits and treatments is on the ballot. Our right to adopt and have custody of our children is on the ballot. Our right even to have physical intimacy is on the ballot.

Please take this call to action and share it in your circles. Our progress is fragile, and needs all our tending.

Join us on Tuesday, May 24 at 7 p.m. EST for a Roe mobilization rally. If you live near Westchester County, join us in person. To join us by Zoom, register here.