Civil Rights: An End to a Frontier

Last Updated on 27  November 2013.

Until Death Do US Part

No change in a public perception confirms the good sense of the American people at their best like the sudden, startling, shift in opinion that now accepts same sex marriage. Sex between couples of the same gender has gone in a generation from a source of titter and disdain to acceptance as a valid part of the continuum of human sexual conduct and union. 

This phenomenon has more to do with social changes than candor about our lusts.  When life was short and men dominant, marriage came early and often by arrangement..  The changes in social mores that led to today's open mart, in which couples find each other and set their own rules for intimacy and degree of commitment, took a couple of centuries even in the most individualistic societies.  Even now it is still proper etiquette for the young man to sweat out a request to the father for his daughter's hand in marriage -- no matter how long they have been living together.

Marriage in America has always been both a contract and a sacrament. The sacramental blessing validated the pact in the eyes of whatever religion the society or the individuals professed.  But in the United States you are not married unless the civil authorities say so; religious figures may bless the union in the name of their reigning deities but they act as designated agents of the state to perform and record the union. Thus marriage is usually a mix of the sacred and the civil --  but it can be just the civil. 

Gay and lesbian unions have usually hovered outside this social web.  They were felt to be of no obvious benefit to society, and homosexuality was condemned as an abomination in the sight of their gods by most religions.  They were confined to households quietly sharing more than expenses.  They were acknowledged in whispers, and practiced in secret. Most straights, when they thought about such relationships at all, thought them brief, usually casual, totally carnal and rarely committed.

The Young, The  Sexy and The Gay

If this sounds vaguely familiar it is because relationships today among college students, and the young in general, are just that casual.  "Hooking up" is their name for their culture of serial relationships, made practical by contraceptives and antibiotics, and made possible by the 1971 constitutional amendment that gave 18-year-olds the right to vote. This was done so young soldiers could vote as well as die for their country, but there were unintended consequences. Eighteen became the de facto point of adulthood.  Colleges stopped pretending to  restrict students as if they were charges in loco parentis and began treating them as adults.  (Dorm life today is a fantasy come true to this octogenarian.)  The new sexual freedom has seeped down via the tales of older brothers and sisters to the high and middle schools.

So it is not surprising that it is the young who are the most accepting of gays.   But this only one of the developments that led to a change of heart among Americans.  Another was an outgrowth of the HIV/AIDS epidemic.  In the early days of  its spread, when mostly gay men were dying, the stereotype of the lone predator did not fit the scenes of grieving survivors; nor did their anger over isolation from their partners during the days of hospitalized illness and death fit the story line of only casual couplings. Society belatedly noted that "these people" can care for each other just like everybody else.  Who helps you grieve when you must grieve in secret?

AIDS also spawned a new militancy born of desperation.  One result was the pivotal 1969 Stonewall Riot in New York City. Then in 1973 American psychiatrists officially stopped listing homosexuality as a mental disorder.  Their psychological brethren followed suit two years later..The World Health Organization lagged behind, but finally joined the consensus in 1990.   Other catalysts include the books of the late Randy Shilts, a San Francisco writer (who greatly influenced this writer) and the homophobic murder of Harvey Milk, San Francisco's gay city council member in 1979. Gradually closeted shame gave way to being openly, even proudly out for many if not most.

The Courts Weigh In

Perhaps the most telling early event was a decisive verdict of the U. S. Supreme Court.  One enduring truism of American life-- one that is not true at all -- is that you cannot change hearts by passing  a law.  The country has often done so, notably with discrimination bans such as the Voting and Public Accomodations Rights acts.  The Supreme Court also changes behavior by striking down laws deemed unconstitutional. Lawrence v. Texas in 2003 was just such a milestone.  It overturned a previous decision of an earlier Supreme Court (Bower v. Hardwick) and invalidated the antique sodomy laws of 13 states on the way to legalizing the private sexual acts of consenting adults by finding them deserving of the equal protection of the laws and the protection of privacy as well.

Same sex marriage began in Massachusetts on May 17, 2004, when the state's highest tribunal ruled that it was contrary to the state constitution to allow only straight couples to marry.  Suddenly homosexuals were no longer queers.  They were not sick or illegal or depraved and, increasingly, no where near the closet. In Massachusetts at least.

Dumb, Dumber and DOMA

There was of course another law at the federal level.. Its name was DOMA. The Defense of Marriage Act had been around since 1996 after Hawaii's and other state's flirtations with legalizing same sex marriage scared the bejesus out of the Congress.  Of dubious constitutionality from the beginning, DOMA lets states refuse to recognize such unions granted under the laws of other states.  This part of the statute would seem to run roughshod over the "full faith and credit" states are supposed to grant each other's laws as clearly required by the U.S. Constitution.  This clause cuts both ways in this case, though, so a consitutional amendment may be needed to fully equalize marriages (see below for a proposal).

DOMA also placed all married gay couples outside the equal protection of the laws granting federal rights, benefits and privileges to heterosexual marriages, no matter where they lived.  They were unable to collect social security survivors benefits, couldn't file for bankruptcy as a couple, file joint tax returns, inherit with a spouse's tax deduction, to name the most salient of what DOMA denied them.
 
More details from the Wikipedia on line encyclopedia as of June 9, 2013:

"Initially introduced in May 1996, DOMA passed both houses of Congress by large majorities and was signed into law by President Bill Clinton in September 1996. By defining "spouse" and its related terms to signify a heterosexual couple in a recognized marriage, Section 3 codified non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, social security survivors' benefits, immigration, bankruptcy, and the filing of joint tax returns, as well as excluding same-sex spouses from the scope of laws protecting families of federal officers (18 U. S. C. §115), laws evaluating financial aid eligibility, and federal ethics laws applicable to opposite-sex spouses.^[1]:23–24

"Clinton – along with key legislators – later advocated for DOMA's repeal. The Obama administration announced in 2011 that it had concluded Section 3 was unconstitutional and, though it would continue to enforce the law while it existed, it would no longer defend it in court. In United States v. Windsor (2013), the U.S. Supreme Court declared Section 3 of DOMA unconstitutional under the Due Process Clause of the Fifth Amendment."

The March of the States

On the same historic day the Supreme Court struck down part of DOMA, it also found that California advocates had no "standing" under the Constitution to complain that a Federal district court had invalidated a referendum passed by the state's voters which defined marriage as -- in what has become the classic phrase in many a state's statute -- "between one man and one woman."  California, which had permitted gay marriages for a while in 2008, then stopped as opponents managed to narrowly pass the referendum, had refused to defend the law in federal court.  This opened the way for the Supreme Court to send the case back to the Federal district court, which promptly sent to back to the California high court, where it finally died -- probably of exhaustion from all the travel and travail.  

The US Supreme Court took refuge behind the dictum that marriage was not a Federal matter, but one that each state could settle for itself.  In effect this allowed California to join Massachusetts and nine other states and DC that haved legalized same sex marriage.  It also left for another day knotty questions about the over eleven hundred federal laws and regulations that apply to married couples when same sex married travel or relocate to states that do not recognize their marriage.  Do federal benefits follow them, or vanish at the border?

Discrimination and DADT  

Another barrier to social acceptance  was DADT (Don't ask, don't tell) the foolish policy enshrined in federal law that let gay and lesbian members of the military stay in the ranks if they lied about their basic nature, and didn't overtly "practice" their homosexuality.  The law came about because gays in the military became an issue too early in Bill Clinton's presidency. It banned overt homosexuals from serving on grounds that their presence would risk "the high standards of morale, good order and discipline and unit cohesion that are the essence of military capability."  Sure.  In fact the law was no more than modestly successful in preventing zealous unit commanders from ferreting out and discharging every queer they could.  Men deemed feminine and women acting butch didn't stand a chance as stereotype and prejudice continued to rule.

Clinton who signed DADT into law to quiet the furor over his premature indications that homosexuals ought to be as accepted in the U.S. military as they were in other NATO nations, finally personally repudiated the law.  Washington slowly moved that way, taking 18 years and three presidential elections before repeal and its ever so gradual implementation was consummated (there is no better word) on 20 Sept 2011.  After that nothing much happened except that gays ccould be gay. It was, after all, a non event in the young enlisted ranks.  A few high ranking troglodytes probably retired and the process of generational change was helped along thereby.

On To The Future

In another -- this time valid -- example of leading from the rear, the United States will -- eventually and belatedly join -- other nations of our mutual western culture in the full acceptance of homosexuals into the communitas of civil society.  We have to sort out a constitutional way to get there.  The conservative Supreme Court has charted a path to consensus that walks the walk state by state.  An ensuing and shifting tangle of contradictions will be born thanks to a conflict between evolving rights and privileges and the geography inherent in their decision.  

People move about.  When they do they expect to take their rights with them.  For perhaps a very long time this will not be possible for the unisex married if their journey takes them from, say, Massachusetts to Alabama, even if just for business or pleasure.  Businesses will be inconvenienced to such a point that even the U. S. Chamber of Commerce might come to urge the country to get real.  Governments will be inconvenienced in ways large and small.  Perhaps even this Supreme Court bench will note that a consequence of their California ruling is a chaotic spread of unequal protection of the laws.  A more liberal Court is a cinch to get it. But we are not a cinch to get a more liberal Court.

The most permanent way to settle these dilemmas is a Constitutional amendment.  I suggest:

Equality of rights and privileges under the law shall not be denied or abridged by the United States or by any State on account of sex or sexual identity.

The reader will please note the sly way justice for homosexuals has been appended to the old, once rejected equal rights amendment for women.  It is an unbeatable combination directly affecting the status of a majority of the country. We should go for it.  And toast with something stronger than tea when it pases.

The End of The Frontier In Sight

Should we so amend the Constitution, there will be a certain sadness along with the joy and satisfaction of that moment.  It will be akin to one like it in 1890 when The Census Bureau announced the closing of the territorial frontier.  For we will have completed the march of civil rights for all.  From sea to shining sea no group of citizens will be without equal protection -- or secured privileges --  under the law.  The law is of course only words on paper unless enforced and finally taken to heart by the citizenry, but at least the state will no longer have to enforce discriminatory laws.

A few mopping up operations and a certain amount of eternal vigilance will be necessary.  Barriers to voting have gotten more ingeneous of late.  And the franchise accorded the District of Columbia citizens remains in unsatisfactory legal limbo.  Some southern states, with no other way left to refight the Civil War, will drag their feet on gay married rights for a generation perhaps.  Our enfranchisement of Indian tribes leaves much to be desired.  And then there is the 11 million "undocumented," mostly Latinos on the outside looking in and tapping more or less gently on the glass. Still, all us babies have come a long way.