Is gay marriage safe? – The Texas Observer
This piece was originally published by the Los Angeles Blade.
While the shock of seeing a draft Supreme Court opinion overturned Roe vs. Wade depressed, reporters and many concerned again began to question whether the Republican Party and the Supreme Court, it filled with agenda-driven justices, posed a threat to the freedom of marriage of same-sex couples, that we have won over decades of campaigning. My one-word answer was and still is: vote.
When an alarm sounds and there’s a fire in your kitchen, you don’t sit back and wonder if it might spread to the bedroom. You are fighting fire.
Don’t waste time and energy cataloging all the many more bad things that could happen. What is happening right now, for women, for 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 laws to protect voting and reproductive rights (and elections, economic opportunity, racial justice, etc.), and who will select justices and justices who are loyal to the Constitution, not theocratic ideology, regressive partisan or obscure donor agendas, or an oligarchic grab for power and wealth. We can cast out elected officials who divide Americans to distract and demoralize them, impose their unpopular minority views on our pluralistic people, driving our country into a ditch.
Those who would roll back America’s progress, and even undermine American democracy itself, have not succumbed to despair, cynicism, apathy or inaction, and neither have we. We can mobilize and mobilize. We can overcome obstacles. We can take back the power.
Who is elected makes a difference.
Republican senators, led by Mitch McConnell, stole a Supreme Court seat (now held by Neil Gorsuch). They walked through a second Trump candidate (Brett Kavanaugh) without meaningfully investing his sketchy past (not just the credible accusations 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 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 candidates would respect the precedent. And, of course, it’s the Republican presidents who have filled the Supreme Court with proven ideologues; Would Hillary Clinton name the three right-wingers Trump named? Al Gore would he have chosen the likes of Samuel Alito?
Voting, or not choosing to show up at the polls, has consequences.
Judges installed by Republican presidents who didn’t even win the popular vote have curtailed the franchise, overturned labor organization, changed the rules of the economy to favor the rich, won special licenses to discriminate under under the guise of religious freedom, hampered government progress and pro-environmental actions (intended to be, as FDR puts it, “our people’s single greatest 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 Democrats and Republicans today could not be more stark – not only because they differ radically on matters of policy, but because the main difference is now that one is the Democratic Party and the other is anti-democracy itself.
And the difference between going in the right direction and the dark place where American politics is right now can be boiled down to a number as small as two: if there were two more Democratic senators, despite Republican filibuster and Trump’s lies, the Senate would skip the filibuster and follow the House in passing legislation to protect our elections and Americans’ right to vote, ensure abortion access, police reform, investing in the middle class, expanding the child tax credit, addressing the need for security in the face of the mad prevalence of guns, and much more. Urgently needed reforms to protect and reinvigorate our Republic, including the expansion of the Supreme Court, are said to be on the table as correctives or at least deterrents (full disclosure: I am on the Take Back the Court advisory board ). President Biden and the Progressives (who currently lead effectively despite zero political wiggle room) would do a lot more about what they ran on, what a majority voted for, and the country would move faster.
If you want a better Supreme Court, if you want better politics, if you want a better democracy, you have to vote and make others vote.
Justice Alito, in his draft, rightly notes that in some respects abortion is different from other issues, and professes that this 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,” Judge Alito writes in his draft, “that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be interpreted as calling into question precedents that do not relate to abortion.
Analysts are right not to believe so. He and Judge Clarence Thomas, at least, have indicated their absolute desire and intent to pursue 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 freedom (sometimes referred to as our right to privacy or our right to autonomy); the “unenumerated” right that the Court invoked to affirm American freedom to make important life-defining choices, such as when and whether to have a child, or have sex, or whether and with who to marry.
Justice Alito claims that 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 “liberty”, “education”, “corporation” or “judicial control”). What the Ninth Amendment says, of course, is that “the enumeration in the Constitution of certain rights shall not be construed to deny or denigrate others held by the people.”
This clear constitutional text will not be enough to stop Justices Alito and Thomas. But just because they’re ready to roll back the gains of the past fifty years or more, or overturn the New Deal, doesn’t mean there are five votes to fully embrace the specious and fraudulent attack on freedom under background of the Americans as the draft notice sketched out, or to follow him where he might want to go.
More than one million homosexuals have been legally married in the United States. We didn’t win the 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 have won in legislatures, in state and then federal courts, on the ballot and in millions of personal conversations. When I wrote my law thesis in 1983 advocating for freedom to marry, polls showed 11% support. We increased that number to 63% by the time we won the Supreme Court victory in 2015, and support has widened and deepened ever since. The latest polls now show support for freedom to marry at 70%, including majority support even among those over 65, even among those who are still willing (despite Trump, despite Putin) to identify 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 guaranteed, although of course there are reasons to fear.
But, again, we shouldn’t sit around cataloging, worrying, or waiting in fear of more bad things. Trump and his enablers are staging an ongoing coup attempt. Extreme candidates threaten to take power in the states and in the House. And now looms the despicable prospect of a constitutional right such as a woman’s right to choose – entrenched in law and in our lives for nearly half a century – to be cynically stripped, with all the harm that will inflict to women, children and families. We already know enough.
Instead of asking ourselves if the freedom to marry is under threat, we must heed the call to action already issued. By acting now, especially by winning the elections, we will best repair the damage and move our country forward, the best protection for all that we hold dear.