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Why the Next Supreme Court LGBT Decision Matters to All of Us

04/23/2015 01:34 pm ET | Updated Jun 23, 2015

Twelve years ago, the Supreme Court's forthcoming decision in Lawrence v. Texas that made sodomy laws unconstitutional provoked a big yawn from some LGBTs and other progressives.

"Who cares?" they asked. "Sodomy laws exist in only a few, backwater states and even there, almost no one is arrested."

This reaction proved short-sighted and profoundly wrong. The previous "legality" of the sodomy laws had been used as an excuse to deny LGBTs a whole range of other rights, from marriage to adoption to equal employment. In retrospect, Lawrence v. Texas proved pivotal in starting the Court's recognition of legal equality for LGBTs.

Unfortunately, history is repeating itself. For somewhat different reasons, the four marriage cases before the Supreme Court this spring are provoking a similar complacent response from some in our community who should know better. Once again, their response is not only mistaken, it's dangerous to our rights.

Here's why:

First, while most court observers expect we'll win full marriage rights this term, there's far more at stake than just marriage. Without such a wider victory, due to the Court's previous, Neanderthal rulings, a victory in marriage may prove hollow. For this is the most reactionary Supreme Court in decades. These are the same jokers who gave us the Citizens United, Hobby Lobby, and recent voting rights' decision that gutted voting protections for Black citizens in states with a history of discrimination. Furthermore, in 2012 this court nearly struck down Obamacare which, for all its severe faults, had replaced an even worse, totally privatized health insurance system.

I won't belabor how awful Citizens United is. Almost everyone knows that, except members of the Supreme Court. But Hobby Lobby is a true Trojan horse in the LGBT community. For this decision allows businesses to discriminate against women's reproductive health choices in the name of "religious liberty" and is now being used by state legislators around the country to allow businesses to discriminate against LGBTs, but in even broader ways. At stake are equal access to public accommodations, the right to be served by any public business, and even the right to receive service from a public official should that official's "religious beliefs" intrude. In place of "whites only" signs, are we now to see "straights only" ones?

Second, attorneys on both sides of the issue agree that, beyond marriage rights, a central question that will be argued before the Supreme Court on April 28th is whether the "equal protection" clause of the 14th Amendment to the Constitution, passed after the Civil War to establish the citizenship rights for Blacks, also applies to LGBTs.

The Court could take a narrow view of the 14th Amendment, applying it only to rights associated with same-sex marriage, or it could take a broader interpretation, labeling LGBTs a "suspect class" - legalese for a group that has historically been discriminated against, and that therefore any actions regarding it are subject to "strict scrutiny" to determine whether there is discrimination involved. This is why the weakening of these protections, expressed in the Court's terrible voting rights decision that was supposedly limited to discrimination against Blacks (as Hobby Lobby was supposedly limited to women), is nevertheless so important and ominous for LGBTs. To be a suspect class and thus fall under the protection of the 14th Amendment would blow a huge hole in the right's attempts to pass laws allowing alleged "religious" discrimination against us. It could strengthen our legal right to equal treatment in employment, housing and public accommodations in general.

Third, given what's at stake for our community, where is the outrage, much less activism, expressed by LGBT spokespeople against the Court's decisions on women's reproductive rights and Blacks' eviscerated right to vote? It has been muted at best and that's a strategic mistake. Despite being a rainbow community to which "gay-rights-only" LGBT organizations pay lip service, they have frequently been oblivious to serious attacks on "other" groups that are as vulnerable as ours, even though an overwhelming majority of LGBTs are members of at least one other "suspect class."

The fact that the latest attack on LGBTs in Indiana, Alabama, Arkansas, and elsewhere began as an attack on women's rights in Hobby Lobby exposes important fault lines in our movement.

What started out as an attack on women's access to reproductive health care expanded into an attack on LGBTs' equal access to public accommodations. Yet there was little response to the initial Hobby Lobby attack by most LGBT organizations.

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LGBTs and Allies March on the NCAA "Final Four" in Indianapolis

This shows the danger of a narrow "gay rights only" approach. But make no mistake, it works both ways. The danger of single issue politics applies not just to LGBTs. Given that equal access to public accommodations was one of the greatest achievements of the 1960s Civil Rights Movement, non-LGBT identified Black organizations, as well as women and minority religious ones, need to recognize the danger that these "religious freedom" arguments pose to everyone's access to public accommodations, including theirs.

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So what are our prospects this spring?

Even though they are loathe to admit it, courts do bend to public opinion. Thus while LGBTs have always been deserving of legal protections, it's only been in recent years when we've mobilized public opinion in our favor that we began to gain recognition of our rights by the courts. This is why public rallies and marches to change and mobilize public opinion are so important.

As he has so many times in the past, gay former Congressman Barney Frank dismissed the value of public protest in a recent visit to Chicago, but the proof is in the pudding: After Hobby Lobby morphed into the Religious Freedom Restoration Acts in Indiana and Arkansas, LGBTs and our allies in Indiana and elsewhere reacted vigorously to this setback, forcing the bigoted legislators to change their (public) tunes.

If Frank had his way, it might easily not have happened. A poll conducted in late February showed a solid majority in the U.S., 54% to 38%, backed the "right" of businesses to discriminate against LGBTs. But thanks to a flurry of on-line and in-person pro-equality activism, a Reuters poll conducted April 6 to 8th showed those numbers are now reversed - 54% oppose the "religious right" to discriminate versus 28% who support such a bogus "right."

LGBTs and supporters marched on the NCAA "final 4" and the state capitol building in Indianapolis to demand full repeal of the anti-LGTQ "Religious Freedom and Restoration Act"

Posted by Gay Liberation Network on Monday, April 6, 2015


Because of the pro-LGBT momentum in public opinion polls, we have a golden opportunity to make the Court's decision this spring about much more than marriage. But if we're complacent and sit on our asses, this opportunity may pass us by.

The Future

We need to look at our LGBT movement in a broader historical context in order to fully appreciate both the dangers and opportunities we face.

As has been said many times before, compared to other equality movements in U.S. history, the legal and social advance of LGBTs here over the past two decades has been extraordinary. But increasingly, this advance is taking place in the context of a challenging economic environment. The past few decades have been ones of stagnant or declining real incomes for most Americans, followed by declining social services and a cynicism and despair among working class Americans that these conditions can be reversed. We live among the first generations of young people who have lower economic prospects than their parents and grandparents.

It is no accident that most of our LGBT gains have been made by winning reforms that cost the wealthy and their cohorts in local, state, and national governments little if any money - for example, equal marriage rights cost nothing; neither do an end to employment discrimination in the military or local civil rights legislation winning us greater protections in employment, housing and access to public accommodations. By contrast, it is striking how little progress we've made in winning the type of reforms that do cost real money - low-income housing to end homelessness for LGBTQ youth (and others) or a vocational-training program, let alone a massive youth jobs program, so that LGBTQ youth might gain enough economic independence to leave abusive households.

We live at a time of stagnant wages, massive and growing inequality of wealth, insistent demands for justice by perceived social outliers, and deepening fears for the economic future. These are all breeding grounds for the politics of resentment and scapegoating. European history of the late 19th and early 20th centuries - even before the Great Depression of the 1930s and the rise of fascism - should serve as a warning. That period saw the relatively rapid social and legal advancement of Jews in Central Europe (not just Germany) as they successfully assimilated. Occupations opened up to them in banking, industry, retail and even in the military at the same time that opportunities for non-Jews were stagnant or declining.

It's not hard to see the parallels with today's Tea Party, with its periodic harassment of immigrants, Muslims, blacks, LGBTs and others. While it's an exaggeration to call the Tea Party today a fascist movement - no crowds of private stormtroopers breaking up meetings and protests by leftwing activists, for example - it's undeniable that elements of the Tea Party have flirted with hardcore hate politics. No one knows for sure the economic future of the U.S. or that of the world economy, but the overall trends appear to be at least growing stagnation, with nothing like the boom years of the 1950s and 60s anywhere on the horizon.

And there might be a worse scenario. Only a few radical economists predicted the Great Recession of 2008-2009, the worst downturn since the Great Depression of the 1930s. If we have a repeat of the Great Recession, or worse, during the next (inevitable) recession, the political corollary will be increased scapegoating and violence on a scale most of us have not seen in our lifetimes. The increasing irrationality of the far right on so many current issues is a foreshadowing of this.

This should carry a few lessons for LGBTs:

a. Our fate is intimately connected to that of other groups facing discrimination, and not just because we are a rainbow community of all genders, races and religions. The lesson of the Hobby Lobby attack on women and its attendant spread to the Indiana and Arkansas anti-LGBT laws is that we need to offer direct solidarity and support to those groups, whether we personally identity as members of them or not. After all, it's only a matter of time before the bigots get around to attacking all of us.

Let's recall our painful defeat in California's passage of Proposition 8 in 2008, when LGBTs didn't get the level of support many expected from other discriminated-against groups. Let us also recall that, by contrast, how Harvey Milk, et al. in the late 1970s, a time of far greater insecurity in our community, did get such solidarity and thus were able to defeat the anti-gay Briggs Amendment. They did this by actively developing solidarity with other constituencies. So our movement must begin practicing solidarity politics (or "intersectionality" as some call it) on a far broader scale, as a matter of self-preservation if for no other reason.

b. As U.S. society becomes even more economically stratified, with Oxfam predicting that by 2016 the richest 1% will own more wealth than the rest of the 99% combined , this inequality is having an affect on the LGBT community as a whole, and in particular, its political life. The LGBT movement, like other social movements before us, is increasingly split along class lines, with the HRC's and other "Beltway Bandit" organizations favoring candidates whose policies do nothing to help and often harm the overwhelming majority of working class LGBTs.

These organizations, with their revolving door relationship to the Democratic Party, have an interest in tying our community's loyalty to the Party, but the latter has a historical record hostile even to LGBT non-economic interests. Don't-Ask-Don't-Tell and the Defense of Marriage Act were Democratic initiatives under the Clinton administration. When courageous community activists, often acting alone and without backing from mainstream LGBT outfits, mounted opposition to these Clinton policies, they faced strong opposition from Democrats, including LGBT-identified Democrats like Barney Frank.

As we now definitively know from David Axelrod's memoirs, citing his "Christian beliefs," then-State Senator Obama cynically turned against same-sex marriage rights a week his election to the U.S. Senate even though those weren't his real views. He then only ceased his opposition to "gay marriage" late in the game, when LGBTs threatened a boycott of the 2012 Democratic National Convention in North Carolina after that state's passage of an anti-equal marriage rights measure.

What drove our equality movement forward was initiatives from local activists, often in the teeth of fierce opposition from "professional" LGBT organizations and their Democratic Party allies. Same-sex couples filing suits around the country typically did so despite opposition from "our" legal organizations such as Lambda Legal (who only got on board once the suits gained legs). Democratic San Francisco Mayor Gavin Newsome narrowly beat a Green Party candidate promising same-sex marriage, and in turn started granting marriage licenses a few months later to uncut the rising party's surge. For this, Newsome was roundly castigated by all of his leading Democratic colleagues, including Barney Frank. Put simply, with DOMA's passage still fresh in people's memories and all leading Democratic officials on record as publicly opposing "gay marriage," Newsome's actions made the Party's pro-LGBT posturing look hypocritical.

Especially at time when many of our "inexpensive" civil rights gains, like equal marriage rights, are nearing fulfillment, and we've yet to take the first baby steps towards fulfillment of our much more difficult, "expensive" tasks like ending LGBT youth homelessness, we need an LGBT movement and organizations which reject the narrow band of what is considered "acceptable politics" in Washington.

c. Currently we may be in the eye of a hurricane enjoying a favorable historical moment for LGBTs. In any case, this historical moment for LGBT rights will not last forever. So we should push the tide as far forward as we can now, for it will recede, as it tragically has for all other previous rights movements.

The women's rights movement of the early 20th Century in the U.S. was stopped cold in part by the Great Depression, as was the gay rights movement in Germany (with fascism giving the latter its coup de grace). The rights movements in the U.S. for blacks, Latinos, women and LGBTs in the 1960s and 1970s faltered, in part, because of the economic shocks of the mid- and late-1970s.

So let's seize the moment now, and make as much pro-LGBT good out of it as we can, lest a few decades from now we regret having missed this opportunity. In short, get what we can, rights-wise, while we can, and then hang on like a bulldog.

A corollary to this is that it's foolish to pretend that all of our battles are won for all time and there's no going back. We live in an inherently racist, sexist, homophobic and transphobic society, and, short of a radical restructuring of this society and an uprooting of our savagely unequal economy, our legal rights, as well as everyone else's, will always be in question. And so will our social acceptance. The periodic advances and set-backs of women and Blacks on the North American continent over the past few centuries offer the most likely pattern of what to expect.

Many LGBTs are mistaken to think that achieving our rights will be like that of the Irish, Italians and other early waves of voluntary immigrants to the U.S. Like them, after some early years of struggle, these LGBTs think we will be assimilated into the heart of the U.S. social and political order and that, eventually in the not too distant future, being LGBT will be no more a barrier to advancement than being left-handed or red-headed.

Certainly this is the meme of leaders of the Human Rights Campaign and other Washington beltway LGBT organizations. But this is a pipe dream. Homophobia and transphobia are irreparably linked to sexism, and sexism, like racism, is irreparably linked to capitalism. Electing a woman president won't change this, any more than electing a Black president did. Capitalism, especially during its periods of crisis, depends for its survival on exploiting people's labor and dividing them against each other. Until we live in a society no longer dependent on fundamental fissures of race, sex and class, our LGBT community will have to continue the task of contesting for our rights, always wary that what is won one day can be lost the next.

The crucial question is if our movement will develop the politics and organizations necessary for this new era, or if we will keep with the present strategies that increasingly fail to meet our new needs.

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Andy Thayer is a co-founder of the Gay Liberation Network, a multi-issue, direct action LGBT organization. GLN and other organizations in Chicago and around the country are organizing actions on or about April 28th, the day that Supreme Court will be hearing four cases on equal marriage rights. A list of actions happening in dozens of cities can be found at Unite4marriage.org