Nearly 50 years ago, representatives of the Mattachine Society, one of the nation’s earliest gay rights organizations, implored the U.S. Civil Service Commission to lift its categorical ban on federal employment of homosexuals, urging that “private, consensual, out-of-working hours homosexual conduct on the part of adults, cease to be a bar to Federal employment.”
The government’s response was swift and brutal: Homosexuals engaged in “deviate sexual behavior” and therefore warranted exclusion from government service because of “the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth.”
That these outrageous sentiments could be used as an excuse to justify exclusion from the federal workforce seems unimaginable today. The Supreme Court has now held that families legally formed under state law by gay men and lesbians are entitled to equal dignity under the law, and every federal court to consider the issue since 2010 has ruled that state bans on marriage equality violate the federal constitution.
The president, vice president, attorney general, and solicitor general of the United States have each announced their support for marriage equality, as have a steady and growing stream of political leaders across the liberal-conservative spectrum. Even those who remain opposed to marriage equality are beginning to acknowledge its inevitability. As Utah Sen. Orrin Hatch recently said, “Let’s face it, anybody who does not believe that gay marriage is going to be the law of the land just hasn’t been observing what’s going on.”
The two of us are old enough to remember when marriage equality for gays and lesbians was unimaginable for most Americans. When we began practicing law, states were still permitted to ban interracial marriages. It was not until 1967 that the Supreme Court decided Loving v. Virginia and brought an end to that lamentable and poisonous legal regime. In that era, gay men and lesbians were fighting for the right simply not to be jailed for who they were, and often losing.
With the fight for marriage equality now making such dramatic progress, we cannot help but reflect on how far and how fast we as a nation have come. Commenting on the tidal wave of judicial rulings for marriage equality in the wake of the Supreme Court’s decisions in Hollingsworth v. Perry and United States v. Windsor, (overturning the federal Defense of Marriage Act) Justice Ruth Bader Ginsburg remarked, “I haven’t seen a social change that rapid—ever.”
Just 11 years ago, the U.S. Supreme Court in Lawrence v. Texas held that state laws criminalizing homosexual conduct were unconstitutional. At that time, no jurisdiction in the United States permitted gay or lesbian couples to marry. Then, in a case argued by Mary Bonauto and her colleagues at Gay and Lesbian Advocates and Defenders, in 2004 the Massachusetts Supreme Judicial Court ruled that the Massachusetts Constitution compelled state recognition of same-sex marriages.*
By the time we brought the Perry case in 2009, which overturned Proposition 8 and restored marriage equality in California, only two other states had joined Massachusetts. Today, 19 states and the District of Columbia have embraced marriage equality, and there are lawsuits challenging every remaining marriage ban left on the books.
We represent the plaintiffs in one such case, Bostic v. Rainey, which challenges Virginia’s stringent ban on same-sex marriage. Relying on the Supreme Court’s affirmation of the equal dignity of gay men and lesbians in Lawrence and Windsor, and the powerful evidence of the manifold harms caused by marriage bans developed in our 12-day trial in the Perry case, courts have uniformly ruled in favor of marriage equality. While many of those rulings are on hold pending appeal, as things stand today, more than 137 million people—43 percent of the country’s population— live in a jurisdiction that embraces marriage equality.
When Richard Loving was asked by his lawyer what message he wanted to convey to the Supreme Court hearing his case, he responded, “Tell the Court I love my wife, and it’s just unfair that I can’t live with her in Virginia.”* In that response, he conveyed that he and his wife were just like any other couple who loved each other and wanted only what other couples took for granted. He thus challenged his home state to explain why he and his wife could be prosecuted for a felony if they moved to Virginia. Virginia had no acceptable answer.
In the struggle for marriage equality, it has been the increasing recognition that gay men and lesbians are, except for their sexual orientation, no different from anyone else that has convinced so many Americans to reverse their opposition. Older straight men and women are increasingly coming to understand (as most young people do already) that gay men and lesbians are our friends, neighbors, teachers, and colleagues; that they procreate and raise children; that they have the same hopes and dreams for their families; that they suffer the same disappointment and grief when those hopes cannot be fulfilled. It then becomes impossible to explain why gay men and lesbians should not be permitted to marry. As in Loving v. Virginia, the opponents of marriage equality cannot explain why all the social and economic benefits that flow from being married should be denied to these people who are no different from straight Americans.
Marriage-equality litigation has accelerated that social change. The Perry and Windsor cases were effective public platforms for advancing marriage equality because the plaintiffs in those cases exemplified just how ordinary and normal gay families are. And the cases served as public crucibles for the testing of the arguments against marriage equality—crucibles in which the evidence and explanations for denying marriage rights to gay men and lesbians have melted away.
These cases, and the accompanying shift in public attitudes, could not have been possible without the strength and quiet inspiration of hundreds of thousands of gay and lesbian citizens living openly in America today—providing daily examples in their communities that the families they formed are every bit as deserving of dignity and respect as other families. There are many Mildred and Richard Lovings.
*Correction, June 17, 2014: This post originally misidentified Richard Loving as David Loving. It also misstated the year of the Massachusetts Supreme Judicial Court decision as 2008 instead of 2004.
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