April 16, 2013 marks the 50th anniversary of the day that Dr. Martin Luther King, Jr. began to write his masterpiece, "Letter from a Birmingham Jail." Thus, this month presents an opportune moment to reflect upon what guidance Dr. King's poignant words can offer our society in addressing what some have called "the new civil rights movement": the same-sex marriage movement. This important letter's lessons are as profound today on the question of gay marriage as they were in 1963 on the question of racial civil rights. They make it clear why justice simply cannot wait.
Yet, both before and after the recent U.S. Supreme Court oral arguments in Hollingsworth v. Perry and United States v. Windsor, a number of individuals have wondered, "Why not just wait on resolving the question of same-sex marriage?" Some, including supporters of gay marriage, have even pointed to comments by Justice Ruth Bader Ginsburg that Roe v. Wade, while not the "wrong judgment," moved "too far, too fast" to argue that "now" may not be the right time to push forward on decisions regarding same-sex marriage because of potential backlash. Not too long ago in fact, related sentiments about waiting were echoed at several points during the Perry oral arguments. For instance, Justice Alito asserted to Solicitor General Donald Verrilli, who was arguing that Proposition 8 denied gays and lesbians equal protection of the law: "But you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the Internet? I mean we -- we are not -- we do not have the ability to see the future." On the more sympathetic side of the spectrum, Justice Kennedy, in the same breath that he noted the legal injury to the children of same-sex couples, declared, "I think ... that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more."
Each time that I hear such comments, I think of "Letter from a Birmingham Jail," and I wonder why none have looked to it for guidance in the same-sex marriage debate. As Dr. King made so clear in 1963, advice to "wait" makes little sense to those who directly feel the sting of discrimination. As Dr. King explained to fellow white clergymen who disapproved of his role in leading non-violent protests in Alabama:
I guess it is easy for those who have never felt the stinging darts of segregation to say "wait." ... But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick, brutalize, and even kill your black brothers and sisters with impunity . . . when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she cannot go to the public amusement park that has just been advertised on television, and see tears welling up in her little eyes when she is told that Funtown is closed to colored children, and see the depressing clouds of inferiority begin to form in her little mental sky, and see her begin to distort her little personality by unconsciously developing a bitterness toward white people ... when you are humiliated day in and day out by nagging signs reading "white" and "colored" ... then you will understand why we find it difficult to wait.
Though there are very important differences between the history and current practice of discrimination against African Americans and gays and lesbians, the above passage by Dr. King could be modified and rewritten with a common meaning for gays and lesbians today. Plain and simple, questions about the timing of any movement must be posed from the perspective of those who are the targets of the harm -- from those who feel it most.
More so, as Dr. King's letter taught us, change has never come purely from the goodwill of those in power. "History is the long and tragic story of the fact that privileged groups seldom give up their privileges voluntarily." Civil rights gains have occurred only when they have been pushed for, fought for, made to happen. Had persons like Jack Baker and Michael McConnell, the first plaintiffs to challenge the ban against same-sex marriage in 1970, or even like talk show host Ellen DeGeneres, who came out very publicly in 1998, waited, we would not be where we are today in having nationwide legality of gay marriage within our reach.
Were Dr. King alive, I believe that he would respond to suggestions for us to "wait" on addressing the gay marriage question by reminding us of the distinction between just laws and unjust laws, what he defined as codes "that a majority inflicts on a minority that is not binding on itself." He would remind us that "time is neutral" and that "human progress never rolls in on the wheels of inevitability." In the end, he would tell us once more that we cannot "set the timetable for another man's freedom."
Angela Onwuachi-Willig is the Charles and Marion Kierscht Professor at the University of Iowa College of Law. Her forthcoming book, "According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family (Yale University Press), will be released in June.