Like millions of other gay Americans, I celebrated the recent landmark U.S. Supreme Court decisions overturning key sections of the Defense of Marriage Act and allowing a lower court ruling to stand, effectively overturning California’s notorious Proposition 8 and clearing the way for marriage equality to resume in California. These rulings will affect the lives of tens of thousands of gay and lesbian citizens both materially and emotionally, for there is nothing more liberating than the freedom to grasp the ring of equality when it comes within your reach.
But not all of us get to grasp the ring, at least not right now. For the rest of us gay Americans in the currently conservative states, like North Carolina, which only recently wrote marriage inequality into its constitution, we have become a country of the have and the have-nots, where marriage equality is law in some states and prohibited in others.
Most of us who would like to do so do not have the material means to move to California and bask in the sunshine of marriage equality; we have jobs, families, friends, roots, that have caused western transplants like myself to call this state our home, even as we watch it become more regressively conservative in the ten years I have lived and worked here. As the sugar high of these rulings dissipates, what is left is the stark realization that we, the members of the GLBT community in North Carolina, are second class citizens in a country where equality before the law is supposed to be a constitutional right.
Such inequality cannot stand for long before the law, even in these times in which a conservative block of Supreme Court justices generally serves as the legal enablers of a new gilded age that serves the interest of the few as opposed to the many.
There has been much debate within the gay community whether the five who overturned DOMA should have gone farther and offered a sweeping ruling that would have invalidated all marriage inequality laws and amendments in the same fashion as the Court did in Loving v. Virginia (1967) which invalidated all state laws prohibiting inter-racial marriage, or Lawrence v. Texas (2003) which invalidated all state sodomy laws, such as North Carolina’s.
To have done so would have resulted in a legal shift as historic as Brown v. Board of Education (1954) which effectively outlawed government regulated segregation.
The difference in 1954 was that all nine justices stood behind the decision, a feat beyond the grasp of the ideologically fractured court of today. But while the five who overturned DOMA may think that they at least opened the door for marriage equality, they have in fact opened a Pandora’s Box.
By recognizing marriage equality as a constitutional right, the court has created the legal framework for a host of legal challenges in all those states that prohibit marriage equality. For instance, if the court had only narrowly ruled in Loving or Lawrence, but still recognized a constitutional right for any man and woman to marry and enjoy a sex life away from the prying eyes of the state, challenges to miscegenation and sodomy laws would have mushroomed in all those states with such laws on their books. The June 26th rulings are not so much the opening of a door but the first banner of a parade that will not be over until the march to full marriage equality is achieved in all fifty states.
Dr. Charles Beem is an Associate Professor of History at the University of North Carolina at Pembroke.