HARTFORD, CT, March 29, 2013 – Nearly every important societal movement in the United States has had a flashpoint—a moment in time when an issue that had previously been under the radar burst into the public’s consciousness. With gay rights, that moment occurred in June 1969 at the Stonewall Inn in the Greenwich Village section of New York City when the gay community staged a series of spontaneous, violent demonstrations against the police.
Unlike the civil rights and women’s rights movements, which saw critically important, groundbreaking laws enacted in the 1960s and 1970s, the gay rights movement has been slower to evolve.
Flash forward to this week, notably Tuesday and Wednesday, March 26 and 27, when two potentially landmark cases were heard by the U.S. Supreme Court. Although each will be decided on its own legal technicalities and merits, they have the potential to change the course for gays and lesbians, granting them equal access under the law and the ability to marry and qualify for federal benefits.
Whether or not that happens – the high court is not likely to issue its rulings before June – the progress of the gay rights movement has been incremental, at best, according to Mark Silk, director of the Center for the Study of Religion in Public Life and one of three panelists during Thursday’s Common Hour.
Silk was joined by Rachel Barlow, social science research and data coordinator, and Adrienne Fulco, associate professor of legal and policy studies.
Silk, who spoke first, noted that gays and lesbians have been in the crosshairs of the conservative culture wars for decades, whether by Jerry Falwell, the late evangelical Southern Baptist minister, the Moral Majority or political conservatives. Nonetheless, Silk said, gays have made headway on issues such as nondiscrimination in housing, employment, and the military.
“Now we may be fighting the final battle,” Silk said, alluding to the two Supreme Court cases involving same-sex marriage that were argued this week – coming more than 40 years after the Stonewall Riots.
Nonetheless, with nine states and Washington, D.C. having legalized same-sex marriage, and 31 states having constitutional amendments banning it, Silk noted that the country may “be more divided than ever” on the issue.
However, Barlow, in her presentation, pointed out that polling data has consistently demonstrated that attitudes are shifting, especially among younger Americans, who are more accepting of gay marriage. Although peoples’ answers often depend on the way in which the question is asked, Barlow said there has definitely been a movement toward acceptance, with one major poll from 2001 showing that 57 percent of Americans opposed same-sex marriage and 35 percent favored it, compared with 49 percent who favored it and 44 percent who opposed it in 2011.
Today, the numbers of younger Americans, Democrats, people who identify themselves as liberals and those who live in Blue States (led by Rhode Island) support gay marriage by ever wider margins.
“There’s a lot of variation depending on who you are and where you live,” Barlow said.
Fulco was charged with the task of explaining the details of the two cases that the Supreme Court heard this week and the various legal technicalities, which could produce outcomes that are narrowly drawn and have little impact on the issue or outcomes that substantially change whether gay marriage is protected by the U.S. Constitution.
There are complicating factors in both cases, explained Fulco. The first case focused on whether California can prohibit same-sex marriage. In 2008, voters narrowly approved a ballot initiative that limited marriage to a man and a woman. Gays and lesbians challenged it and a lower court struck down the initiative. In this case, there are three possible outcomes: that the justices will uphold or reject the ballot initiative on its merits; that the group that backed the initiative doesn’t have legal standing; or that the case could be sent back to the lower court.
But there are other complicating factors, said Fulco. If the high court rules that the private parties lack standing, California could take the position that the initiative has been ruled unconstitutional by the federal courts and that same-sex marriage is valid. If the court sends the case back to the appeals court, that action could result in a new decision.
At issue in the second case, said Fulco, is the1996 Defense of Marriage Act (DOMA), which denies federal benefits (such as Social Security) to gay spouses. The lawsuit was filed by an 84-year-old woman who had to pay roughly $360,000 in estate taxes, which a spouse in a heterosexual marriage would not have had to pay.
As with the California case, Fulco explained that there could be several different outcomes. One, the justices could say that the case should not have been heard by the Supreme Court because the Obama administration has endorsed DOMA but decided not to defend it. Or the justices could uphold the law, which would cement the status quo.
Another option, said Fulco, is that the justices could strike down DOMA, a ruling that would permit spouses in same-sex marriages to receive the same federal benefits that opposite-sex spouses receive. However, that ruling would have no effect on couples who live in states that don’t allow same-sex marriage.
Lastly, if the ruling striking down DOMA is broadly written and says that the Constitution forbids discrimination against gays and lesbians, it could invalidate laws that treat gays differently.