Bill Newman: Work still needed to ensure full LGBT equality

Last modified: Saturday, August 08, 2015

America is a freer country today than it was before June 26, 2015, the day that the U.S. Supreme Court ruled in favor of marriage equality.

Since 2011, with the demise of “Don’t Ask, Don’t Tell,” gays and lesbians have been entitled to serve equally in the military. Since 2013, when the Supreme Court struck down the Defense of Marriage Act, married gay couples have been entitled to equal treatment under federal programs and laws including Social Security, the Internal Revenue Code, and veterans benefits. And now in every state gays and lesbians may marry the person they love.

But the legal terrain is still littered with land mines. No federal law prohibits discrimination in employment, housing, or public accommodation based on sexual orientation or gender identity, and the gerrymandered and dysfunctional Congress won’t pass such legislation any time soon. Without federal protection it falls to the states — by default — to provide it, but as of today a majority of states don’t.

Consider this irony — a couple has the right to marry, for example on a weekend, but in many states when they report to work on Monday, their employer legally can fire them because they are gay. They could be evicted from their apartment for the same reason and then mocked for their troubles by the baker who refused to make their wedding cake.

Massachusetts outlawed discrimination against gays and lesbians in employment, housing and public accommodations in 1989, and in 2011 enacted legislation prohibiting discrimination against transgender employees. That law unfortunately failed to guarantee equal access to public accommodations for transgender individuals.

Massachusetts State Senate President Stanley Rosenberg has indicated that during the current session the Legislature may well take up the proposed bill that would remedy this lacuna in our anti-discrimination laws.

In this regard Massachusetts hardly stands alone. State legislatures across America soon will engage in the fight over LGBT rights. You already can hear the battle cry of the right being ginned up. They will claim that the laws promising LGBT equality jeopardize religious liberty, just as segregationists after Brown v. the Board of Education claimed that forced integration would violate their religious and associational freedoms.

Justice Antonin Scalia in his dissent in Obergefell, the gay marriage case, claimed that the court’s decision threatens democracy in America. He characterized the opinion as “pretentious” and “egotistical,” filled with “showy profundities that are profoundly incoherent,” and concluded his diatribe by highlighting the fact that the Supreme Court lacks a specific mechanism to enforce its judgments.

Scalia has that much right. The court has no police force to compel adherence to its decisions. The other branches of government share the responsibility for that.

U.S. Sen. Ted Cruz of Texas, a contender for the Republican presidential nomination, quickly took to the airwaves to pander to social and religious conservatives and outright homophobes. He quoted Scalia and emphasized his point about the court’s impotence.

Cruz importuned state officials ideologically at odds with the Supreme Court’s majority decision to refuse to issue marriage licenses to gays and lesbians. He rationalized that position with the purported justification that the high court’s decision only applies to the litigants in that case. Make them sue you, Cruz counseled. Until the cases are brought and while the court proceedings drag on, you will continue to enjoy the ability to discriminate.

Unfortunately Cruz’s position has historical precedent. For decades after Brown, segregationists employed such tactics. Their rear-guard legal guerilla warfare ultimately failed, but for decades it maintained de facto segregated schools and imposed second-class citizenship on millions of students of color. And in a way they succeeded. The root and branch of slavery and Jim Crow have never been eradicated and still poison America.

In 1980, my law partner Wendy Sibbison and I won, at the Massachusetts Supreme Judicial Court, the first gay custody case to be decided by any state’s highest court. We did not imagine then that less than a generation later, in 2003, gays and lesbians in Massachusetts would win the right to marry under our state constitution.

And in 2003, after that victory, we certainly did not predict that within a dozen years — or within our lifetimes for that matter — the U.S. Supreme Court would rule marriage equality to be a fundamental federal constitutional right.

The country in a relatively short time has come a long way toward recognizing LGBT rights. The Supreme Court’s decision gives us a moment to grandly celebrate. Gays and lesbians gaining the constitutionally protected right to marry is an important step towards equality.

That said, we need to appreciate how much more work needs to be done with our laws and within ourselves. Now is the time to rededicate ourselves to the struggle, to keep on keeping on.


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