The battle for gay rights in black and white

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On March 25, 1965, after completing his march to Montgomery, Alabama – the city which would become the birthplace of the 20th Century’s Civil Rights Movement, Dr Martin Luther King, Jr. spoke these words: “I know you are asking today, ‘How long will it take?’. I come to say to you this afternoon, however difficult the moment, however frustrating the hour, it will not be long, because truth crushed to earth will rise again…because no lie can live forever…because the arc of the moral universe is long, but it bends toward justice.”

Yesterday, Federal Court Judge Vaughan Walker declared California’s Proposition 8 unconstitutional, in Perry v. Schwarzenegger. Prop 8 is the controversial ballot measure which narrowly passed in November 2008 and denied gay and lesbian couples the right to marry. The unprecedented lawsuit challenged Prop 8 on the basis that the ballot measure was a direct violation of the constitutional rights of gay Americans under the 14th Amendment’s Equal Protection Clause.

The clause provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws”. The Due Process and Equal Protection Clauses can be seen as an attempt to secure the promise of the United States’ professed commitment to the proposition: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.” This proposition, originally outlined in the Declaration of Independence, has now empowered the judiciary to enforce that principle against the states and the federal government.

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Many gay rights activists see the yesterday’s decision as a direct extension of the landmark 1967 Supreme Court case Loving v. Virginia, in which the court declared anti-miscegenation laws unconstitutional: allowing for interracial marriage, and ending all race-based legal restrictions on marriage in the United States. In Loving the Court declared:

Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival…To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law…Under our Constitution, the freedom to marry, or not marry, a person…resides with the individual and cannot be infringed by the State.

It has now long been accepted that African-Americans and whites are equal, that women are deserving of their full emancipation: right to vote, right to choose and right to equal pay for equal work, yet gay rights – particularly the right to marry – remains an unsettled question in the halls of our legal establishment.

The federal lawsuit can be understood in laymen’s terms to answer the simple question of whether the civil rights protections of the United States extend to protect gay and lesbian men and women in their personal, individual and familial pursuits of life, liberty and the pursuit of happiness. Of course, the 14th Amendment was originally designed in 1868 to protect the freed African-American slaves and their offspring.

As the law developed, it has been expanded to include all minorities: women, Native Americans, Latinos, Asians and the disabled. Ironically, the federal challenge in support of gay rights was fought by an unlikely dream team of Ted Olson and David Boies – former adversaries in the notorious Bush v. Gore Supreme Court decision of 2000. The two came together on equal ideological ground to protect what they, and the majority of Americans believe, to be civil rights which are self-evident.

The opponents of gay marriage have largely based their opposition on religious grounds, which is fundamentally unconstitutional due to the provisions of the First Amendment. The majority rule over minority interests was considered central to this principle. Likewise, the majority of California’s electorate were able to deny the minority of gay and lesbians their rights, which makes the legal decision to challenge the ruling fundamentally a Constitutional question, not a religious one, nor one of state rights versus federal rights. Herein lies the genius of this legal challenge. Unlike the cases which came before it on the state level, this will inevitably be decided by the United States Supreme Court and answer the fundamental question once and for all: of what is our Constitution made, if not to protect individual freedom?

The Founding Fathers were clear in their aim to guard the citizenry against the tyranny of government. Many far-right conservatives, and even liberals who are religious, have tried to support their arguments against gay marriage by using moral and religious justifications which are devoid of any legal tender. What is sad and misguided is that those supporters who are Catholic or Christian, Muslim, Mormon or Jewish could well face similar persecution if our constitutional equal protections are not upheld. It is incumbent upon the electorate to consider all these things. Equally, the debate currently underway to revise the 14th Amendment in order to deny the newborn children of illegal immigrants the right to citizenship, echoes the ancient challenges in the Dred Scott decision of 1857, which denied African -Americans, slave or free, the right of citizenship as an effort to deny them all subsequent civil rights.

It is clear that the decision will be appealed by the opponents to gay marriage. The journey to the Supreme Court could take as long as two years. But what is certain, is that the arc of the moral universe is still bending. And in the words of President Obama, spoken on the 40th anniversary of Dr. King’s assassination: “it does not bend towards justice on its own. It bends because each of us in our own ways put our hand on that arc and we bend it in the direction of justice.” Judge Vaughan Walker concluded, on the merits of this case, that “children raised by gay or lesbian parents are as likely as children raised by heterosexual parents, to be healthy, successful and well-adjusted.”

Perhaps the arc of the universe bends more and more with each passing generation. Our great-grandparents saw the benefit of Brown v. Board and Loving v. Virginia. Our mothers lives and ours were shaped by Roe v. Wade. And perhaps one day, many years from now, our children will discuss Perry v. Schwarzenegger as a bygone conclusion and wonder what all the fuss was ever about.