Ending the "Gay Exception": The Marriage Ruling and a Fight to Make Ohio and America Whole

When the Supreme Court ruled June 26 that the right of same-sex couples to marry is protected by the Constitution's 14th Amendment, it did more than recognize a fundamental freedom and rebuff a bid for state-sponsored discrimination.

The court rejected a four-decade political crusade to mislabel as "special rights" the efforts by LGBT advocates, allies, and coalitions to extend the scope of civil-rights and anti-violence laws to our lives and families. It also reflected a shift toward equality claims and away from vilification, persecution, and political backlash that keep prejudice and discrimination alive. The ruling overcame part but not all of the "gay exception."

Never heard of the gay exception? As attorney Mary Bonauto, who argued the marriage case before the Supreme Court, told interviewer Terry Gross this month, it is the pervasive public sense that "moral objections to gay people and homosexuality long sanctioned by law" are "a permissible basis for treating gay people differently." Retired Ohio State University law professor Rhonda Rivera used the phrase to describe failures by judges to interpret policies or precedents in ways that protect the rights of LGBT people.

Recent history gave Rivera and many of us who worked to make Ohio a more welcoming place reasons to worry about the insidious staying power of the gay exception. The anti-LGBT crusade that sought to enshrine it in law and social practice has shown particular traction in the electoral swing state, even up to this year.

Ohio is where the anti-LGBT crusade achieved its national high-water mark in 1993 with passage of Issue 3 in Cincinnati. The measure prohibited "any claim of minority or protected status" by LGBT people. Citizens for Community Values, which sponsored Issue 3, peddled it with the help of two black ministers and videos featuring Senator Trent Lott. They argued any recognition of harassment or job and housing bias that covering LGBT people amounted to "granting special preferential treatment."

Mailers for the measure called gays alternately privileged and criminal, sick, and doomed to premature death. They featured the quack research of discredited anti-gay therapist Paul Cameron. The amendment to the city charter won approval by voters 62 to 38 percent. Gay attorney Scott Knox and the late Nancy Minson, a straight ally and no-nonsense liberal activist who ran the campaign against Issue 3, were soon pressed into service consoling friends who felt besieged and betrayed by co-workers, parents, relatives, and neighbors.

Brighter times were still a ways off for the state. In 1995, for instance, the College of Wooster, my own Ohio liberal-arts alma mater where Rivera had visited just a few years earlier, withdrew the job of president from a chosen candidate after some board members learned she was a lesbian.

In 1997, the federal Sixth Circuit Court of Appeals, based in Cincinnati, upheld Issue 3, the only pre-emptive anti-LGBT law of its kind in the country. Adding to the sting of the ruling was the fact the Supreme Court just one year earlier found a similar measure in the state of Colorado unconstitutional for turning LGBT people into "strangers to the law," as Justice Anthony Kennedy wrote.

The appeals court, however, breathed new life into the gay exception by holding that a city could do what a state could not in forbidding policies protecting the human rights of LGBT citizens, in part because it might save money. The Supreme Court added insult to injury one year later by refusing to review the renegade ruling or insist on application of its own precedent.

Fifteen years later, even broad-based enlightenment in public opinion about LGBT lives and relationships could not dispel the shadow of the gay exception in Ohio.

Jim Obergefell of Cincinnati lost his husband John Arthur to Lou Gehrig's disease in October 2013. Although the Ohio couple was legally married in Maryland, the state of Ohio would not issue a death certificate identifying Obergefell as Arthur's husband. Last November, two judges of the Cincinnati-based Sixth Circuit defied a trend in favor of the freedom to marry from all four states of the Sixth Circuit and other circuit courts in the country. They found for Ohio in denying Obergefell's status as surviving spouse.

Joining in the 2-1 ruling--which also turned back the claims of other same-sex couples, several raising multiple children--was Judge Deborah Cook, of Akron. Cook barely participated in lively oral arguments in the case last August. The ruling she signed seemed almost wistful for the era of Issue 3, holding that only majorities of voters, by referenda or candidate elections, could properly decide who was and was not included in state marriage laws. Cook chose to disregard the fact that it was judges, not voters, who discarded implacable anti-miscegenation laws still on the books in several states in 1967. Cook made short lists as a possible appointee to the Supreme Court by George W. Bush in 2005. Her name may resurface if a Republican wins the White House in 2016.

Among reasons for jubilation by LGBT activists and allies nationwide at the Supreme Court's ruling in Jim Obergefell's case is a powerful sense of relief. Adding fuel to celebrations is the hope that continued work by LGBT advocates and coalitions can overcome the gay exception, for good.

We scarcely have words for a massive conversion of human potential that is under way throughout America. For millions of people, young and old, single or in fulfilling relationships, immigrant and native born, across a wide range of income levels, and often caring for children or older adult family and sometimes both, the dread over detection, hostility, and reprisal at home, at school, at work, and in their communities is being replaced by something else: the capacity to connect and contribute openly. Any description of this dynamic is synonymous with liberation.

When I return to Ohio this fall, it will be to give the annual scholarship endowed at my alma mater eight years ago. It goes to a student who adds significantly to making Wooster a welcoming environment for LGBT people. The diverse young advocates who have earned the award so far have helped move the institution and the state toward a new standard of inclusion and human rights. Anti-LGBT bullying and job and housing bias persist in America's heartland, as do misguided drives by some extremists to give bigotry justified by religion the force of law. But even they see the writing on the wall. The days of the gay exception are numbered.