You would think, especially after the several year stint we went through here in Canada, that the whole concept of equality would naturally extend to the concept of inclusive marriage and that your average person would ‘get it’.
That has, by and large, been our experience in Canada, despite the often bizarre and ludicrous arguments against equal marriage made by those opposed to it when it first hit the public agenda. Now that it is law here, the whole controversy has evaporated and it generally is just not seen as that big a deal if Mike and Garry or Cheryl and Kate decide to get married to each other. Life goes on and, in the view of most Canadians I would suggest, what those hypothetical couples choose to do in their lives really has no impact on what other Canadians do in their own lives - which is pretty much what equal marriage advocates said from the beginning.
Our neighbours to the South, however, are still going through the paroxysms of "traditional marriage" vs "whatever THAT would be". And, as I wrote about in my January column, the United States’ Supreme Court has now waded into the minefield, just as ours did.
The difference being that in the US, states have far more autonomy than our provinces and territories do and one of the key issues facing the justices is addressing the delicate issue of federal incursion on state rights. Americans do not take kindly to feds telling state legislatures what to do.
In mid-March it appeared the Supreme Court, a largely conservative Supreme Court at that, was leaning towards striking down a law that denies federal benefits to legally married same-sex couples.
The court raised some serious concerns over the Defence of Marriage Act (DOMA) enacted by then-President Bill Clinton, who was generally perceived as if not pro-gay then certainly not anti-gay either, in 1996. Clinton has since come out saying DOMA should be repealed, calling it "incompatible" with the Constitution of the United States and inconsistent with equality and justice under the laws of the United States. Having a former President speak out against legislation he himself signed into law is a major brick in the road to full equality. Adding more weight to that particular brick is President Obama declaring DOMA illegal during his first term and refusing to endorse it. That, too, is unprecedented.
As of this writing, it is not yet clear which direction the esteemed justices will take. It is of course hoped by equality advocates the ruling ultimately handed down will institute sweeping changes in the law governing same-sex marriage rights which are currently highly fragmented throughout the US, given the power of individual states, but that seems unlikely.
Justice Anthony Kennedy, a known social conservative and quite possibly the individual holding the power of a ‘swing vote’ (his vote, in other words, "swinging" the decision in one direction or the other) apparently did show a willingness to vote in favour of repealing DOMA, stating the Act posed a "real risk" to the power of the states to define for themselves what constitutes marriage.
This is an interesting approach. He is not actually coming out in favour of equal marriage, although he has authored two decisions before that were generally seen as favourable to gay rights. He is rather reinforcing the constitutionality of individual states maintaining the power they have and not having that power overridden, pro or con, by Washington. The view, however, does not really address the issue of one state having one set of laws on this issue and another state having the opposite set of laws.
This, of course, is at the core of the fragmentation we are witnessing around rights and why the issue has been brought before the court to resolve; state autonomy versus federal power.
Complicating things further is the divide between social and religious conservatives who maintain, to the surprise of nobody, that homosexuality is against the word of G-d and that to legalize same-sex marriage is legitimizing an abomination, while social liberals see the issue in terms of equality and justice and fairness.
The struggle towards equal marriage is not new. Records show there were challenges to state laws defining marriage as a union between a man and a woman as far back as 1970. Even as a long time activist and, more recently, one involved in the equal marriage campaigns here in Canada, I found that surprising.
1970 was one year after the Stonewall Inn Riots of June 1969. The gay liberation movement, which evolved into the gay rights movement and from there into the LGBTQ movement, was a radical movement seeking to establish a new social order, to tear down the oppressive institutions - in the view of liberationists - that held people back from their full potential. 1970 saw the naive optimism of the Flower Power generation morph into a more focused political approach and this continued throughout the decade.
1970 was a full decade before the growth of gay and lesbian community organizations permeated our communities. While there were organizations in existence, the whole idea of a ‘community’ had yet to take root like it did in the 80’s and since. Certainly, in 1970, to want access to the institution of marriage when even young heterosexual couples were questioning the validity of the institution strikes me as amazing, even as anathema to the spirit of gay lib. Liberationist philosophy was that marriage was oppressive, a heterosexual institution that any self-respecting gay man or lesbian would want nothing to do with. It was seen as almost the very definition of all that was wrong with heterosexual, and heterosexist, culture.
This was also an era, it is important to keep in mind, in which all 50 states outlawed ‘sodomy’ and therefore, by extension, to be a homosexual male was a criminal...a criminal...offence. In 1986, 57 percent of Americans believed sex between consenting adults of the same sex should be illegal (and largely was, even then).
Throughout the 60’s and even 70’s gay bars were routinely raided. Gay men and lesbians out for a night of dancing would suddenly switch from dancing with the man or woman they were with and start dancing with the nearest person of the opposite sex as soon as the lights or other signals indicated the police were on their way in since even dancing with another man or another woman was grounds for arrest. Drag queens were routinely rounded up and charged with ‘impersonation’, also a criminal offence; many drag queens took to wearing at least one item of male apparel under their gowns to try and, no pun intended, skirt the law. It didn’t always work. This, then, was the tenure of the times in which some activists challenged laws excluding lesbians and gay men from marrying.
For whatever reason, public opinion started to turn during the 90s. Gay and lesbian characters, and not tragic ones, started appearing in television shows. Gay liberation had given way, in around the mid-70s actually, to a more mainstream equal rights movement. ‘Inclusion’ was the buzzword in not just our approach to dominant culture but within our own as well. "Homo-sexual" became "gay", which became "lesbians and gay men" upon recognizing that lesbian women (or "wimmin", depending on your political stripe) were lost in the umbrella term of ‘gay’, which some saw and still see as a largely male term. As the ideal of inclusivity gained ground, it became "lesbians, gay men and bisexuals" and finally, "lesbians, gay, bisexual, and transgendered" (which, in turn, was further refined to transgendered/transsexual or simply to ‘trans’). A new generation rejected ‘gay’, just as the generation of gay lib had rejected ‘homosexual’, and adopted the term ‘queer’ to define themselves and so it became ‘lesbian, gay, bisexual, transgender/ transsexual, queer and questioning’. In Canada we also included the aboriginal definition of ‘Two-Spirited’ and so the acronym of LGBTTQ or LGBTQ sprang up.
Whereas in 1986, 57 percent of Americans, and probably a similar percentage of Canadians, believed homosexual sex between consenting adults should be illegal, twenty-six years later the polls now show 53 percent of Americans support same-sex marriage with nine states and the District of Columbia now legally recognizing same-sex marriage.
This, then, is the environment out of which and within which the Supreme Court must decide the future of equal rights in the United States, likely keeping in mind - if history is an indication - that rights do in fact evolve. They just sometimes need a bit of prodding to move along.