Overturning Same-Sex Marriage Bans: An End to ‘Segregation’?

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Virginia’s Attorney General Mark Herring (Photo Credit: Jay Paul/Getty Images)

“We recognize that same-sex marriage makes some people deeply uncomfortable,” writes Circuit Judge Henry F. Floyd in the Federal Court of Appeals 4th Circuits ruling on Virginia Voters ban on same-sex marriage. “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.” In overturning the ban and upholding the lower court’s ruling, Floyd next used language that’s becoming more and more common with the LGBTQ rights movement. “The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.”

The ruling emphasizes the “right to marry” as shown to be a legitimate historical precedence in U.S. court cases through references including cases dealing with prison inmates, those owing child support, and finally, interracial marriage. This comparison between the LGBTQ rights movement and the fight for equal rights for African Americans in the Civil Rights movement is hardly the first.

Back when Attorney General Eric H. Holder told state attorney generals that they need not defend their state’s same-sex marriage ban, he made the same comparison. “If I were attorney general in Kansas in 1953, I would not have defended a Kansas statute that put in place separate-but-equal facilities,” he said, according to The New York Times, calling gay rights “the defining civil rights challenges of our time.”

The comparison is a valid one. People will understandably point out that the LGBTQ population makes up a smaller percentage of the population, that gay, lesbian, transgender, bisexual, and questioning individuals have hardly been enslaved for centuries, but bigotry, hate crimes, violence, and persecution have certainly been the experience of many in the LGBTQ community over a long history of mistreatment. Institutionalization, rape, willful neglect of targeted health issues (AIDS), and other such crimes make the LGBTQ population deserving of a civil rights spotlight of historic focus.

As for the ruling on Virginia’s ban, it had effects beyond its state borders. The fourth district ruling extends its relevancy to North Carolina as well — a state currently dealing with its own legal battle over the ban. Attorney General to N.C. Roy Cooper said, according to The Washington Post, “It’s time to stop making arguments we will lose and instead move forward.”

The case of North Carolina draws our attention to a whole other side of the same-sex marriage and LGBTQ rights fight: politics. Yes, it may be fair to compare the nationwide same-sex marriage trials to interracial marriage and racial bigotry with Arizona’s near crisis of equality via SB 1062 — which would have made it legal to refuse service to members of the LGBTQ community on the basis of religious freedom — but even during the Civil Rights movement, black rights were political. The issue made and broke careers, stances skewed along party longs, and so on.

The same is certainly the case with gay rights. For example, in the North Carolina Senate race, both candidates are on opposite sides of the issue; Senator Kay Hagan (D) pro-same-sex marriage, and Thom Tillis, presently the Republican House speaker for the state legislature, against it. But even Tillis admitted public opinion was changing in his state enough to make the law unlikely to hold up in the long-term — according to The Washington Post.

The Republican party has made some notable efforts to push change onto their party; Young Conservatives for the Freeom to Marry is working on support among the right for same-sex marriage; the GOP’s Growth and Opportunity report lists being more “welcoming and inclusive” as a goal to bring in more young voters who care about “the treatment and the rights of gays.” Yet while change has been pushed, as with historical social changes, politicians often follow just behind where the voters are headed. “The issue is losing its toxicity, from a Republican perspective,” said GOP lobbyist Kathryn Lehman, of same-sex marriage, according to The Hill, which lists a growing, if still quite small number of same-sex marriage supporters in the Republican Congress.

A recent poll from Gallup shows that as with many non-white or non-male voters, gay, lesbian, transgender, and bisexual voters tend to lean more to the left. LGBTQ individuals told Gallup between January and June of this year that they were Democrats or leaned Democratic 63 percent of the time, compared to 21 percent for the GOP. Non-LGBTQ members were far more evenly split, 44 percent to the left and 42 percent to the right. Clearly there’s a statistically significant voter loss. While actual members of the LGBTQ community may not add up to a substantial population of voters, family, friends, and other supporters certainly add up to a much larger number.

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