Signs of Discrimination's Demise

When U.S. District Judge Joseph Tauro ruled last week in Massachusetts that the federal law banning same-sex marriage is unconstitutional it reminded me of something. There comes a moment in every struggle for equality when the arguments for maintaining discriminatory laws and practices suddenly seem absurd to reasonable people.

How do we know when such a moment is upon us? First, the extreme elements in support of inequality resort to violence over rational conversation. Second, fair-minded people who once tolerated the discrimination are aroused from their slumber and start to advocate for a just solution. Finally, the last gasp is when people will abandon their principles in order to hang on to the privileges they have enjoyed and are loathe to allow others to share in them.

We have seen this pattern before in our history. When the forces of intolerance turned fire hoses on civil rights’ marchers, including children, the images shocked many Americans. Suddenly the lengths that the extremists were willing to go to defend segregation were no longer tolerable for many people. Those who had sat idly by while the bigotry went unchecked generation after generation finally found their voice and their conscience. And the only philosophical argument left to the segregationists was the old bromide--states’ rights.

Now the pattern returns in the push for equal rights for gay, lesbian, bisexual, and transgender Americans. The violence and threat of violence the GLBT community lives with daily is one of the most underreported stories of our time. As a pastoral counselor whose practice is largely made up of GLBT individuals, I hear regularly the toll this violence takes. The necessity of hiding their sexuality in order to be safe, or to hold on to a job, or to keep their family or church from rejecting them is a regular thread in my clients’ stories. Millions of GLBT Americans live in a state of constant alert out of fear for what they will suffer or lose if their sexuality is discovered.

Slowly, though, some straight people are realizing the pain being caused by the legal discrimination against their GLBT friends and family members. The most dramatic example of this awakening is Ted Olson.

Olson was solicitor general under President George W. Bush who successfully argued before the Supreme Court that the recount in Florida should stop after the 2000 presidential election debacle. Who was the lawyer for the losing side in the infamous Bush v. Gore case? David Boies. Now Olson has teamed up with Boies to try and overturn California’s Proposition 8 and establish a constitutional right for same-sex marriage.

Many conservatives are surprised that this darling of the Republican party would align himself with advocates for same-sex marriage, but Olson argues he is just being consistent in his principles. In an Op-ed piece published in Newsweek Olson makes this case in response to the criticisms he is receiving from those in his own party.

“Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.” (January 9, 2010)

Olson’s conscience and his commitment to his basic political principles caused him to take this stance. Yet, for those determined to prevent marriage equality from becoming the law of the land, they are willing to abandon their principles if need be. In response to Judge Tauro’s ruling last week that the federal law known as the Defense of Marriage Act is unconstitutional because it interferes with the right of a state to define the institution of marriage, and therefore denies married gay couples some federal benefits, conservative commentators have argued that the states have no right to determine who can legally marry. Yes, you know you have stepped through the looking glass when ultra-conservatives are demanding that the federal government flex its power and overrule a state’s attempt at self-determination.

What do these signs suggest about the future of marriage equality in the United States? Now that it is clear there are no sound constitutional arguments to deny millions of GLBT Americans the right to marry someone of the same gender, the only question is how much more violence and tortured reasoning must we endure as the forces of intolerance defend the discriminatory status quo. If Judge Tauro and Ted Olson are any indication, perhaps not much longer.