Late June has long been a significant time of year for the North American LGBT (lesbian, gay, bisexual, and transgender) community. On June 28, 1969, police raided the Stonewall Inn in New York, a mafia-owned gay establishment. Ostensibly, the raid was targeted at the mafia owners for not having a liquor licence, but once there, the police began arresting cross-dressing patrons for indecency, which elicited outrage and two nights of rioting in New York. Beginning the following year, annual marches were held at the end of June in several American cities to show solidarity, and these proliferated far and wide. (EngSoc now has a tradition of attending the Toronto Pride Parade.)
Other significant milestones include John Lawrence, who was accused of sleeping with another guy, being acquitted by the U.S. Supreme Court in June 2003 and Canada’s House of Commons agreeing to the Civil Marriage Act (legalizing same-sex marriage) in June 2005.
The American Decision
On June 26, 2015, the U.S. Supreme Court added another chapter to the history of the LGBT community, pronouncing same-sex marriage legal across the USA. The lawsuit which produced the case was filed by James Obergefell, a gay Cincinnati native who had married John Arthur in Maryland (where the law already permitted same-sex marriage). When Arthur died of ALS in 2013, Obergefell asked to be recognized as his surviving spouse on Arthur’s death certificate. However, the Ohio Department of Health turned him down, as the state banned same-sex marriage. He immediately sued Rick Hodges, the director of the Department of Health, and the case Obergefell v. Hodges was appealed all the way to the Supreme Court.
In a 5-4 split decision, the court made a sweeping decision in favour of Obergefell; not only did Ohio have to recognize his gay marriage, but the 15 states that did not already recognize same-sex marriage all had to do so ASAP. Justice Anthony Kennedy, writing for the majority, based his argument on the Due Process Clause (DPC) of the U.S. Constitution, which states that “no state shall make or enforce any law which shall abridge the privileges … nor deprive any person of life, liberty, or property, without due process of law”. For decades, courts have held that marriage is one of these privileges or liberties, and you can only be forbidden to marry with “due process”, which is legalese for “there better be a really good reason”.
Kennedy rejected three arguments against same-sex marriage: a) the founding fathers did not accept same-sex marriage, b) marriage had always been between a man and a woman, and c) marriage is about childbearing and gay couples cannot have biological kids. To the first, he answered that the founding fathers had intentionally used generic language in the constitution so that future generations could discover new rights within the meaning of “liberty”; to the second, he answered that the meaning of marriage had already changed before, so it can change again (for example, Americans nowadays freely choose their spouses, not because their parents arranged the marriage for social or political gain); to the third, he answered that marriage isn’t just about having kids, but also about dignity, love, commitment, and legal benefits. Since no compelling reason can be found to reject same-sex marriage, then all 50 states must recognize it under the DPC.
Justice John Roberts, speaking for the other four judges, thought that it was not the court’s job to change an age-old definition of marriage. In his opinion, the court had no right to enforce legal same-sex marriage—only lawmakers elected by the people had the right to make such revolutionary changes. Roberts pointed out that the DPC had once been used to squash minimum-wage laws, for eerily similar reasons (the Supreme Court had ruled that removing your right to work for any salary you wanted was an affront to human dignity and freedom), and we now recognize that decision as misguided. He also argued that similar reasoning could be used to legalize plural marriage. He closed by asking proponents of same-sex marriage to take their case to the people, to get it legalized the “normal” way through the passage of a new law.
Reactions
Most states wasted no time in complying with the Supreme Court ruling, with some exceptions. Several judges in Alabama stopped issuing marriage licenses at all in protest. In Kansas, Gov. Brownback announced that his state needed time to “fully review and analyze the ruling”.
The two largest religious groups in the USA, the Catholic Church and the Southern Baptists, announced that they would continue holding a one man-one woman definition of marriage internally (which, as the U.S. Constitution separates church from state, they have the right to do), and expressed worry that people with conscientious objections might have to quit certain occupations (e.g. wedding planner, baker) to avoid catering a same-sex marriage. On the other hand, the Episcopal Church hailed the decision. Some ministers expressed support for the ruling as a matter of civil rights, despite personally opposing same-sex marriage.
At Pride Parades across the country, the gay and lesbian community and their allies had extra reason to be festive, celebrating the victory with rainbow flags, costumes, balloons, and music. President Obama hailed the ruling and lit up the White House in rainbow colours. Support for the decision also came from the American Civil Liberties Union (ACLU) and the American Bar Association. However, LGBT rights advocates cautioned that there was still some ways to go: just as racism continued after de-segregation, laws discriminating against gays and lesbians aren’t entirely a thing of the past. Also, as Brigita mentioned in her article last edition, transgender individuals still often face poor treatment and desire greater acceptance.
Across the Pond
Same-sex marriages are expected to be recognized in Ireland soon. A referendum was held on May 22nd, in which 62% of Irish people voted in favour of same-sex marriage, sparking jubilant festivities from the LGBT community and its allies. However, the joy was tempered by a legal challenge. Two opponents of same-sex marriage challenged the referendum’s legitimacy in court. In Ireland, as in Canada, major parties receive public funding; the challenge claimed that, since the same parties had taken out ads supporting a “Yes” vote, taxpayer money had indirectly been spent to take sides on a referendum. While it is highly unlikely that a court would actually overturn the results of the referendum, it will probably delay the implementation of same-sex marriage until early 2016.
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