THE RECENT DECISION of the United States Supreme Court in Obergefell v. Hodges, recognizing a constitutional right to same-sex marriage, stands as a milestone in GLBT history on a scale with the 1969 Stonewall Riots. The contrast between 1969 and 2015 demonstrates how epic the intervening 46 years have been. Over a short time in historical terms, we have progressed from explicit denial to definitive recognition of our equal dignity as human beings.
Beyond the strictly legal arguments about equal protection and due process, what the Court recognized once and for all is the essential humanity of people regardless of their sexual orientation.This came as a nail in the coffin of Justice Antonin Scalia’s position going back to Lawrence v. Texas, where he acknowledged that the ultimate justification for anti-gay discrimination is not a legal one but only society’s condemnation of homosexuality. This he deemed a sufficient basis for upholding anti-gay legislation such as pre-Lawrence anti-sodomy laws. In contrast, in Obergefell Justice Kennedy argued that under such laws “many persons did not deem homosexuals to have dignity in their own distinct identity.”
Justice Kennedy’s opinion for the Obergefell majority recognized constitutional liberty and equal protection interests trammeled by the denial of equal marriage. The Court noted that the First Amendment protects individuals’ disapproval of homosexuality for religious or other reasons, but stressed that this disapproval does not minimize the humanity of those so disparaged. Consequently, denying marriage equality “works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. … It would disparage their choices and diminish their personhood to deny them this right.”
Adopting a zero-sum perspective, dissenting Justice Alito worried that the stigma the Court majority lifted from GLBT people would now fall on opponents of gay equality. He warned that Obergefell “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” Underscoring his fear, he “assume[s]that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots.”
For judges like Scalia and Alito, Obergefell represents the world turned upside down. They are horrified that disparagement of homosexuality, for so long accepted as the norm both culturally and legally, could be the minority position, while homophobia will be frowned upon. They have nothing to fear. Only when hatred is considered the natural order of things does equality seem like a loss of freedom for anyone.
Don Gorton is an attorney and activist based in Boston.
