Last month, the media and much of the American public fixated on oral arguments in two same-sex marriage cases being heard by the U.S. Supreme Court.
The cases raise different legal issues. The first, an appeal from lower court rulings invalidating California’s Proposition 8, questions whether allowing popular majorities to deny fundamental rights to disfavored minorities violates the Equal Protection Clause of the 14th Amendment.
The second, challenging the Defense of Marriage Act, implicates important federalism issues. Under DOMA, parties to marriages that are legal in their states are denied more than 1,000 federal benefits available to citizens in opposite-sex marriages—benefits like estate-tax exemptions, Social Security survivor benefits and the ability to file a joint tax return with one’s spouse.
Both cases reached the court with procedural irregularities that will permit the justices to punt on the merits if they are so inclined, and at least in the Proposition 8 case, the signals strongly suggest that they will do just that—presumably, for fear of getting too far in front of social change.
It’s an unfounded fear.
In 1967, when the Supreme Court invalidated miscegenation laws in Loving versus Virginia, a substantial majority of Americans still disapproved of interracial marriage. In 2013, polls find 58 percent of Americans in favor of same-sex marriages, with 36 percent opposed.
Even these numbers don’t tell the whole story. Support for marriage equality has grown across all demographics, but it has grown exponentially among the so-called Millennials, 70 percent of whom, according to Pew, support the right of gays and lesbians to marry. Marriage equality is the future.
Why have attitudes changed so dramatically? Another poll tells the tale: 77 percent of Americans report having a relative, friend or co-worker who is gay, a 30-percent jump from 1992. (Of course, they knew gay people in 1992—they just didn’t know they knew them.)
I remember a time when most gay people were firmly in the closet—when Jesse Helms could credibly claim that he’d never met a gay person. In the popular imagination of that time, gays wore feather boas and danced in gay bars; they and equally stereotypical lesbians were exotic “others,” easy to demonize.
Coming out as a political tactic changed that.
Younger gays may still dread coming out to their friends and families, but the environment they face is dramatically more accepting than it was 10 or 20 years ago. For that, they owe an earlier generation a great debt of gratitude.
A generation ago, coming out took tremendous courage. You risked losing your job, your friends, your family. The thousands who took that risk, however, put a face on what had previously been faceless. Suddenly, gays weren’t some deviant and foreign species—they were your doctor, your nephew, your Aunt Gladys and her “roommate.” They were people you knew and loved.
Today, they are Ellen DeGeneres, Anderson Cooper, Rachel Maddow—and Rob Portman’s son.
They are also Edith Windsor, the 83-year-old DOMA plaintiff who had to pay more than $360,000 in estate tax when her wife died, because even though New York recognized her marriage, the IRS didn’t. Had her spouse been male, she would have owed nothing.
Whatever the Supreme Court decides in these cases, gays and lesbians will continue to fall in love, live together and create families—a significant percentage of which will include children. Nine states have laws that recognize that reality; more will follow.
Will the court facilitate or retard the inevitable? We’ll know in June.•
Kennedy is a professor of law and public policy at the School of Public and Environmental Affairs at IUPUI. She blogs regularly at www.sheilakennedy.net. She can be reached at firstname.lastname@example.org. Send comments on this column to email@example.com.