For gay and lesbian Americans around the country, we’re living in exhilarating times. The pace of change we’ve seen in the last few years has been no less than amazing. With full marriage rights in six states, a president who unequivocally supports marriage equality and national polls which show them, for the first time ever, most Americans support full marriage equality, I believe we’ve reached a tipping point.
Over the course of my lifetime, I’ve seen more progress that I could’ve hoped for as a young, gay high school student (in conservative suburban Missouri) struggling to imagine a future self with a husband and happy family. With each passing year, that dream becomes more and more realizable in a growing number of jurisdictions in the United States.
But despite all of the progress, significant barriers still stand in the way of the full enfranchisement of the LGBT community in American society. To say nothing of the vast majority of states that currently prohibit same-sex marriage by constitutional amendment, the Defense of Marriage Act (DOMA) stands as one of the most insidious threats to equal rights for gays and lesbians ().
DOMA prevents the federal government from recognizing same-sex marriages and allows states to refuse to recognize same-sex marriages performed in other states. Recently, the 2nd Circuit Court of Appeals in New York declared DOMA to be unconstitutional, arguing that it violates the equal protection clause of the constitution.
With this judicial decision, it is likely that the Supreme Court will review marriage equality sometime in the near future. This case, and a challenge of California’s Proposition 8, have made their way through the court system and could be taken up by the Supreme Court within the next few years. Although the facts of the cases are very differ, the basic question is the same: can a majority rightfully deny a minority its equal rights?
When a California appeals court declared Proposition 8 to be unconstitutional, the political right lobbied accusations of “judicial activism” at the court. Their argument is that a majority of Californians voted for the law, and therefore it should stand. If a simple majority of Californians opposes equal marriage rights for homosexual couples, then homosexual couples do not have a right to marry, they say.
In that case, the court did exactly what courts are supposed to do: strike down bigoted and unconstitutional laws. The appeals court in New York did exactly the same when it declared DOMA unconstitutional.
The concept of minority rights is an important basic tenet of democracy. In essence, these rulings on marriage equality are about much more than gay marriage. They’re about whether we, as a democratic society, are comfortable with putting civil rights up for popular vote or even whether we want our basic rights to be dictated by a simple majority of a state or national legislature.
In “Democracy in America,” Alexis de Tocqueville cemented the phrase “tyranny of the majority” in the national political discourse. He noticed that the democratic system made it terribly easy for the majority, operating under misguided notions about a minority group, to oppress that minority.
While I don’t think it’s ideal that the court system be the instigator of contentious social change, it must take on that role when a severely misguided majority in most U.S. states has decided to prevent gays and lesbians from participating fully in the institution of marriage. By disenfranchising gays and lesbians, that majority erects barriers to forming stable families, something conservative opponents of gay marriage charge us with destroying.
Nobody knows with certainty that either or both cases will actually make it to the Supreme Court or how the court will act. In any event, I’m comforted by the fact that public opinion is now firmly on the side of equality. The stakes are still very high, and our work will not be finished until gays and lesbians in every U.S. state can marry — whether by court rule, popular vote, or an act of legislature — whomever they choose.