Demeaning Democracy at the Supreme Court

Friday was an historic day for the LGBT rights movement. Marriage equality has finally been achieved. The U.S. Supreme Court's opinion in Obergefell v. Hodges is filled with sweeping rhetoric that is humanized and personalized with the stories of the real hardships encountered by the same-sex couples who brought this constitutional question to the Court for its decision.

Much of the focus now is rightly on celebrating this important victory. But it is worth pausing to consider what the dissenting Supreme Court justices had to say Friday because it presages what we can expect in the coming LGBT rights battles -- battles that will not be for marriage equality but for equality, period.

If the conservative dissenters are any type of barometer, these are going to be tough battles. Friday's decision may only harden the resolve and resentment of those who stand against the LGBT community and its allies.

Chief Justice Roberts, like all of the dissenters, devoted his dissenting opinion to deploring the fact that five "unaccountable and unelected judges" had decided whether to extend marriage to same-sex couples rather than leaving that question of "social policy" to the "people."

Hurling slings at "activist" judges is nothing new. And neither is the conservative meme that being gay or lesbian is a "lifestyle" rather than just part of one's life, as the Chief Justice's reference to this being a question of "social policy" seems to imply. And putting the question to a vote sounds like the democratic way of doing things--and is something that opponents of same-sex marriage have called for in the past.

Yet, it is disturbing to see all of this in a U.S. Supreme Court opinion. This entire line of argument is fundamentally demeaning and denigrating to the LGBT community. The fact is that when we are talking about excluding a group that has suffered a long history of discrimination from a civil institution such as marriage, we are not talking about mere social policy, as the Chief Justice suggests, but about a question of citizenship. Are members of the LGBT community truly full American citizens?

Put differently, when do we all get to vote on the extent of the civil rights of the "majority"--those who have traditionally had power and/or privilege in American society? The answer is that we don't because it is just assumed that they have full citizenship rights. Putting to a majority vote whether a group of people labeled "different," "other," or "nontraditional" deserve full citizenship only reinforces their marginalization and treatment as outsiders. That is not a victory for a democracy; instead, it undermines the very foundations of our democracy by balkanizing American society and dividing us into citizenship "haves" and "have-nots."

As disturbing as I find all of this, the Chief Justice takes things even further in his dissent and says: "Closing debates tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide." This sounds dangerously close to advocating resistance to the Court's majority opinion. And it certainly sounds like a veiled threat of future attempts to slow the advance of the LGBT rights movement on other fronts, such as obtaining protections against discrimination in employment, housing, and public accommodations. These are protections that we have no choice but to obtain through the democratic process.

This is a time to celebrate, but we should be cautious about letting down our guard once the celebrations have subsided. The battle for LGBT rights is not over--it seems that things are just getting ready to heat up.