By now it seems inevitable if not entirely predictable that by July this year same-sex marriage will be the law of the land in the United States. Many will applaud that it is now legal across America and that the battle for equality is over. Yet for all who draw the parallel between the battle for GLBT rights and civil rights, one can only hope that it does not end the same way, a war half won and facing serious backlash to this day in the South and across white America.
On Friday the Supreme Court announced that it will review a Sixth Circuit Court of Appeals decision which had upheld a ban a same-sex marriage. It accepted the case because other circuits had ruled contrary, creating a split in the law that the Supreme Court has to resolve. This is the political science-law professor answer to why the case will be heard. The US is also a country divided, with 36 states and 70% of the population living in a world where same-sex marriage is legal, and where there is no definitive answer to whether the Constitution protects the right of same-sex couples to marry. Federalism may be great for many things, but some constitutional questions demand definitive answers.
While the Supreme Court has avoided it so far, the question before it will be whether the Constitution protects the right of same-sex couples to marry. Justice Kennedy will write a 5-4 opinion saying that it does (unless Chief Justice Roberts joins in to make it 6-3 so he can control the scope of the majority opinion), capping a career where he has written all the major opinions (Romer, Lawrence, and Windsor) affirming GLBT rights. Four years ago at a Supreme Court continuing legal education class I did at Reuters I predicted that Kennedy would write a June 5-4 opinion declaring that the Constitution protects same-sex marriage, and then he would announce his retirement. I still think that will occur this year. It is unlikely, contrary to what some social conservatives hope, that the Court will declare same-sex marriage contrary to the Constitution or that it will author any opinion invalidating same-sex marriages in any place in the United States. Nor is it likely that the Court will simply say that the Constitution is silent on the issue and leave it to the states to decide.
So then what? Is the battle over? For Republicans the decision would be great. As with immigration, letting someone else resolve a divisive issue upon which you are on the losing side of history and which costs you votes and future party vitality would be a blessing. Making same-sex marriage legal across the country takes the issue off the electoral agenda. But that is not the end of the story.
The movie Selma is a powerful reminder of how far and not this country has come regarding civil rights for African-Americans. The reason that movie is so powerful is not simply because of its reenacted and reminder of the violence that occurred at the Edmund Pettus Bridge and elsewhere in South and across the country during the 50s and 60s as King and others fought for equality. It is also a powerful reminder, especially in light of Michael Brown and Eric Garner, that the struggle and the violence persists. A half a century after Selma racial discrimination persists. It exists in school outcomes and incarcerations. It exists in racial profiling, income and wealth disparities, and in general attitudes about race, especially and still in the South.
Many have drawn parallels between the civil rights movement for racial equality and the battle for GLBT rights. Blacks had Selma, gays and lesbians Stonewall in New York. Many draw parallels in the legal strategies between Thurgood Marshall, NAACP, and the Lamda and Human Rights campaigns. Loving v. Virginia (where the Supreme Court struck down laws banning racially mixed marriages) is the direct precedent invalidating bans on same-sex marriage. There are similarities, but let us hope there are differences. Fifty years later racism remains entrenched in America, especially in the South. It is no coincidence that the core of the states today that oppose same-sex marriage are the same that fought Black civil rights the hardest, and where discrimination is still ugly. These are also the states where reproductive rights are still most fiercely opposed 40 years after Roe v. Wade, and where workers rights are weakest.
The point is that passage of a law or the issuance of a Supreme Court decision does not end the battle. Despite Selma, the 1964 Civil Rights Act, and the 1965 Voting Rights Act, much work needs to be done to bring racial equality to America. The same will be true come later this year when Justice Kennedy writes his 5-4 opinion. This is what we need to remember as we celebrate Martin Luther King’s birthday.