By Marc Paige
As a fifty-seven year old gay man, I’ve seen devastating losses, and glorious victories in our march towards equality. With our new marriage rights, and a federal LGBT non-discrimination law yet to be enacted, we must maintain our forward momentum. But among those running for President are candidates intent on reversing our progress. With the balance of the Supreme Court at stake, these threats are serious.
It’s hard to believe it was only thirty years ago that the Supreme Court ruled it legal to criminalize homosexuality. In Bowers v. Hardwick, a 5 – 4 majority upheld the constitutionality of a Georgia sodomy law criminalizing oral and anal sex between consenting gay adults. In Georgia and a number of other states, gays and lesbians could be arrested for having sex in their own homes!
The timing of the 1986 Bowers ruling was particularly cruel, coming as the horror of the AIDS crisis was unfolding. On the night of the Court’s decision, I was among hundreds of activists blocking traffic on New York’s Sixth Avenue. We were angry, but we also felt scared, exhausted, and betrayed by our nation.
Seventeen years later, on June 26, 2003, sanity returned to the Supreme Court. The Bowers ruling was overruled by Lawrence v. Texas, striking down all remaining sodomy laws nationwide, and affirming the fundamental rights of equality and liberty guaranteed to all citizens.
Ten years to the day after that, on June 26, 2013, an even more enlightened Supreme Court changed my life. In Windsor v. United States, the Court ruled 5 – 4 that married gay couples were entitled to the identical federal benefits as married straight couples. Three weeks later, my husband and I were married in Provincetown, MA.
It took another case to bring marriage equality to every state. But on June 26, 2015, the Supreme Court’s 5 – 4 decision in Obergefell v. Hodges held that the fundamental right to marry is guaranteed to same-sex couples nationwide.
Had Barack Obama lost the election to John McCain in 2008, I would not be married. Senator McCain had campaigned that, if elected, his models for judicial nominations would be the anti-gay Justice Samuel Alito and Chief Justice John Roberts. Instead, President Obama appointed two sensible jurists, Sonia Sotomayor and Elena Kagan, to fill vacancies on the Supreme Court in 2009 and 2010, and they became key votes in the narrow 5 – 4 decisions that secured full, national marriage equality.
We now face an election where all our past and future victories are threatened, in varying degrees, from every single Republican presidential candidate.
Although Marco Rubio claims “this campaign is about the future, not the past,” he has pledged to take the LGBT movement backwards. Rubio opposes ENDA, calls gay adoptions “a social experiment,” and says of the marriage equality ruling, “I don’t believe any case law is settled law. Any future Supreme Court can change it.”
Ted Cruz is worse. He’s called the Court’s ruling on marriage equality among the “darkest 24 hours in our nation’s history.” Cruz is “appalled” that Houston has a lesbian mayor, and in November he appeared at a rally organized by an evangelical pastor who routinely calls for the death penalty for gay men and women.
Donald Trump is also “not in favor of gay marriage.” In a response to a Fox News question whether he would appoint justices to overrule the ruling, Trump said, “I would strongly consider that, yes.”
Supreme Court decisions have been overruled in the past. Thankfully, in 2003 the Lawrence decision invalidated Bowers. But solid, progressive rulings can also be reversed.
When President George W. Bush replaced Justice Sandra Day O’Connor with the more conservative Justice Alito, American law moved so far to the right, and so many legal precedents were reversed, that liberal-leaning Justice Stephen Breyer declared from the bench, “It is not often in the law that so few have so quickly changed so much.”
Four of the nine justices on the Supreme Court are over or near the age of 80. Just one vacancy filled by a President Rubio, or even a Kasich or Bush, could tilt the Court disastrously to the right. Two or three would change the Court for a generation.
Our enemies are giddy with the prospect of conservative appointments. Tony Perkins, president of the anti-gay hate group Family Research Council, said this in his endorsement of Ted Cruz: “The next president will likely appoint two or three justices to the U.S. Supreme Court, which will impact our nation for decades to come.”
In an editorial entitled “Why the Supreme Court’s marriage ruling is not ‘The End’,” Perkins writes, “This is a moment of opportunity…Every Justice of the Supreme Court has been appointed by a president of the United States. We must have a leader…who will not only stop what’s happening and change course, but undo the damage.”
The “damage” Perkins wants undone includes our right to marry. Both Hillary Clinton and Bernie Sanders would both appoint Supreme Court justices who value the right to equality for all LGBT citizens. The Republicans will not. That’s what’s at stake in this election.
Marc Paige is a writer and speaker on LGBT and HIV/AIDS issues.