How We Got to the Supreme Court

What took the LGBT rights movement to this moment, and indeed what has taken us to moments of truth and potential victory more often than not, are those who went against the established leaders and groups and ultimately pushed an agenda from the grassroots.
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the united states supreme court ...
the united states supreme court ...

Twenty years ago this July, I went to Hawaii to cover the lawsuit that launched the first salvo in the current war over marriage equality, ultimately leading to the Defense of Marriage Act (DOMA), Proposition 8 and, this week, arguments before the Supreme Court: Several gay and lesbian couples took the then-extraordinary step of suing the state of Hawaii, claiming gender discrimination because they were denied marriage licenses. The case crashed like a tsunami across the mainland. Anti-gay zealots rode the wave of homophobia while gay advocates in Washington gasped for air, drowning in anxiety.

The article I wrote, which appeared in the December 1993 issue of Out, focused on Hawaii's history, politics and culture and how it had ultimately led to that moment, as well as on the strains that the couples' actions caused among gay activists on the mainland. Incidentally, four out-of-context sentences from my 11,000-word article have been used by anti-gay crusaders to attack gay marriage over and over again for two decades and were even read just this past fall on the floor of the Colombian Senate by an anti-gay politician when that country debated same-sex marriage.

More on that deceptive, pathetic action by the anti-gay crusaders later. What I want to say first is that the path to the Supreme Court by gay marriage advocates is a lesson for every movement. What took the LGBT rights movement to this moment, and indeed what has taken us to moments of truth and potential victory more often than not, are those who went against the established leaders and groups and ultimately pushed an agenda from the grassroots.

The couples in Hawaii in the early '90s, who ultimately received the support of LGBT people across the U.S., did something that had the major gay groups in Washington of the time up in arms. The groups were focused on making incremental change, mostly on getting a hate crimes bill and a watered-down employment nondiscrimination bill passed as the first major pieces of legislation to protect gay people. (That employment bill, now the Employment Non-Discrimination Act [ENDA], still has not passed). The idea of fighting for marriage seemed just crazy and, to them, bound to cause a backlash that would distract them and immerse them in something they didn't plan on.

Only Evan Wolfson, then an attorney with Lambda Legal (who would lead the way on gay marriage in years following, creating the group Freedom to Marry), took the Hawaii couples seriously and helped them organize. Others tried to do everything they could to stop the lawsuit, fretting about how conservatives would respond and what a terrible bind it would put Democrats in. The gay establishment, like every establishment, worries about moving forward and ruffling the feathers of those political leaders with whom they've made relationships. They're often so fearful of moving that they go nowhere, and it takes others to break the logjam.

The actions of the Hawaii couples did indeed create a backlash. But we needed to have this fight. It is in fact the fight itself, standing up against the hate because we dare to demand our rights, that changes public opinion dramatically.

Even taking Prop 8 to the federal courts was something to which the established leadership, including groups like the Human Rights Campaign and the ACLU, was opposed just a few short years ago (and ironically, that opposition included Evan Wolfson, who by then was very much a part of that establishment as head of Freedom to Marry). They're all fully on board now, emboldened by the big wins in the courts, so this is not to call anyone out. But it is important to remind people where change comes from.

Whether it was ACT UP organizing civil disobedience at the height of the government's ignorance of the AIDS epidemic in the late '80s, or Get Equal members chaining themselves to the White House fence to push the president on "don't ask, don't tell" (DADT), it took brave people who put their reputations, their privacy, their futures, their jobs, their families and sometimes literally their own bodies on the line to push things forward. They withstood attacks not just from anti-gay zealots, the police and the media but from the gay establishment, telling them to just be good little boys and girls.

Sometimes these champions weren't even gay themselves but were allies of gay rights: When San Francisco Mayor Gavin Newsom began marrying couples in San Francisco in 2004, the Democratic establishment, and the gay establishment that is very much a part of it, went ballistic. It affected Newsom's political career, but there's no doubt that Newsom is a hero of marriage equality whose action was pivotal.

If not for grassroots activists pressuring President Obama, gay leaders seemed likely to have given him a pass on DADT repeal in his first term, and on defending DOMA in court, not to mention moving forward on marriage equality. So let's not forget these brave people as we watch all the talk shows and read the media interviews that highlight the very gay leaders who were often opposed to the exact strategy they're now embracing.

Now, about that 11,000-word article I wrote about Hawaii 20 years ago, which is even cited in the Prop 8 proponents' written arguments to the Supreme Court: The four sentences that have been used by anti-gay crusaders over and over as they argue against gay marriage weren't even my opinion but a hypothetical "middle ground" I suggested between gay assimilationists who saw marriage as a panacea and gay liberationists who saw it as a confining, heterosexual institution:

A middle ground might be to fight for same-sex marriage and its benefits and then, once granted, redefine the institution of marriage completely, to demand the right to marry not as a way of adhering to society's moral codes but rather to ... radically alter an archaic institution. [Legalizing "same-sex marriage"] is also a chance to wholly transform the definition of family in American culture. It is the final tool with which to dismantle all sodomy statutes, get education about homosexuality and AIDS into public schools, and, in short, usher in a sea change in how society views and treats us.

In retrospect it seems like a fairly tame suggestion (and again, it was only a suggestion of a middle ground between two opposing views and wasn't even my opinion), but because I'd used the dreaded "redefine" word, the zealots latched onto it. Yet the fact that an article by a gay journalist that includes a mere hypothetical would be cited in the Prop 8 proponents' Supreme Court brief shows how weak and desperate the arguments against gay marriage really are. Neither the anti-gay extremists nor the Supreme Court itself, whatever it does, can keep back what has truly been a grassroots, people-driven movement for equality.

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