Back when gay marriage was controversial
The U.S. Supreme Court is on the cusp of a monumental ruling to determine the future of civil rights in our nation. Often, the best way to understand the path to change is through hindsight.
So, let us pretend that the year is 2065, and we are celebrating the 50th anniversary of the U.S. Supreme Court’s historic decision in Obergefell v. Hodges, which guaranteed marriage equality for same-sex couples.
We look back and recall that the decision was not unanimous and that the court’s strict-constructionist, conservative male justices wrote scathing dissents. We remember with gratitude the female justices’ fortitude in upholding what they characterized as a sacrosanct constitutional right. And we recollect with joy and respect an 82-year old Justice Ruth Bader Ginsberg advocating for a departure from the archaic notion of marriage. But what stands out most in our memories is the unfolding of history, the attempt to fit together the jagged little pieces of the civil rights puzzle, following the court’s decision in June 2015.
As history reveals, progress often occurs in a zig-zag fashion — two steps forward and one step back, a delicate and often imperfect march toward positive change. If we view civil-rights history on a continuum, we see a series of setbacks punctuated by great victories.
The months and years following the Obergefell decision were both challenging and triumphant. Opponents of same-sex marriage clung to their convictions stronger than ever, citing religious freedom as the legal missile targeted at marriage equality.
What followed in conservative states was the proliferation of increasingly robust mini-religious freedom laws like the ones originally passed in Indiana. In reaction to the Court’s decision, states fearing the labeling of sexual orientation as a suspect class, like race, sex, and national origin, passed legislation that prohibited municipalities from carving out anti-discrimination protections for the LGBT community. These and other laws added to the increasing patchwork of free exercise laws that pit religion against civil rights and, when taken in the aggregate, led to a system of condoned discrimination under the guise of religious freedom.
We began to see more frequent anecdotal evidence of the tension between religious freedom and civil rights — a pediatrician refusing to treat a newborn baby of a same-sex couple, a teacher denying a conference to same-sex parents of a student, and city clerks invoking religion to justify their refusal to issue marriage licenses to same-sex couples.
This backlash narrative is not unlike what transpired after the court’s equally divisive decisions in Roe v. Wade and Brown v. Board of Education. After Roe, anti-abortion advocates killed doctors performing abortions and bombed abortion clinics. And, in resistance to Brown, the governor of my own home state barricaded the doors to Little Rock Central High School, refusing to admit nine African-American students, after the Supreme Court unanimously struck down segregation in public schools.
Although we as a nation are not fully cured from the pernicious symptoms of historical prejudices, we have grown by leaps and bounds. And, in the end, the giant steps forward propelled us past the blips and the setbacks.
So, as we reflect on the social progress we’ve made since the High Court’s landmark decision in Obergefell v. Hodges, we see a historic pattern. With change comes resistance, a visceral and fear-based urge to hold onto the status quo. Ultimately, after the dust settled, civil rights prevailed. Those fighting for reform put one foot in front of the other and marched forward, crediting the court’s landmark marriage equality decision as the catalyzing force.
And today, in 2065, we remember the one-time-discriminatory institution of marriage, in which same-sex couples were denied equal protection of the law. Thanks to James Obergefell and the other brave souls who fought for equal rights, and a Supreme Court that upheld the spirit of the Constitution, we now live in a country where all men and women, regardless of sexual orientation, can enjoy the benefits and privileges that come with the legal recognition of their marital unions.
Danielle Weatherby is an assistant professor at the University of Arkansas School of Law.