It's been a good year for gays and lesbians seeking the right to marry. Last summer, the Supreme Court struck down the federal government's ban on same-sex marriage, and in recent months, several courts have invalidated bans at the state level. Scenes of same-sex couples spilling out of city hall, arms raised high with marriage licenses in hand, have become standard fare on the evening news. The question now is not if, but when, the high court will recognize gays' and lesbians' right to marry nationwide. Smart opponents of same-sex marriage know this and have begun to reset their agenda.
Conservative activists and pundits who until recently opposed same-sex marriage have begun to argue that what this fight has been about, all along, is the importance and centrality of the institution of marriage. What courts are really doing when they open marriage to gays and lesbians, these conservatives now argue, is endorsing the idea that marriage is what makes a family. Their aim is to wield the new precedents as tools to steer everyone into marriage and to stigmatize those who remain outside it, particularly when they have children. These advocates thus hope that even if they lose the battle, they'll win the war: Gays and lesbians may be the immediate beneficiaries of recent decisions, but the real winner is the institution of marriage.
But there's a problem with this story. The focus in the recent wave of same-sex marriage decisions has not been on the marriage part of marriage equality, but on the equality part.
Courts now understand bans on same-sex marriage as one manifestation of a long history of anti-gay discrimination -- discrimination in employment, harassment at the hands of law enforcement, and many other forms of exclusion and mistreatment that have deprived gays and lesbians of equal citizenship. Laws restricting marriage to different-sex couples are unconstitutional, courts have held, because they reflect and reinforce this history, injuring not only same-sex couples who wish to marry, and their children, but also gay youth throughout the nation who may sense, as a result of these laws, that being gay is not OK.
Courts in the recent marriage cases have emphasized that families come in all shapes and sizes. They have noted that demographic changes "make it difficult to speak of an average American family," and that successful, well-adjusted children come from all kinds of family backgrounds. This is one reason the Constitution "protects an individual's ability to make deeply personal choices about love and family free from government interference." Too often, attempts to enforce "traditional" conceptions of the family have injured society's most vulnerable members and violated our deepest constitutional values.
In this regard, the recent same-sex marriage decisions very much resemble Loving v. Virginia, the 1967 case in which the Supreme Court struck down laws barring interracial marriage. The court in Loving recognized that traditional notions -- about family, and about entire groups of people -- sometimes need to give way. Loving granted interracial couples the right to marry, but the case was about more than that. It was part of a much broader social and legal change half a century ago that extended to education, employment, housing, and many other contexts. This change repudiated an entire regime in which large numbers of Americans were treated as second-class citizens based on one aspect of their identity.
The recent same-sex marriage decisions, all of which cite Loving, are similarly far-reaching. They grant same-sex couples the right to marry. But they are also part of a much broader social and legal change. They reject a long history of anti-gay discrimination. In so doing, they reinforce the notion that the Constitution guarantees liberty and equality to all gays and lesbians -- whether or not they're the marrying kind.
This post is part of a series produced by The Huffington Post and The University of Texas at Austin, in recognition of the Civil Rights Summit -- honoring the 50th anniversary of the Civil Rights Act -- held at the LBJ Presidential Library. To see all the other posts in the series, read here. For more information about the Civil Rights Summit, read here.