You’d never accuse the Supreme Court, led by Chief Justice John Roberts, of liberal activism. Not even now. This year’s decisions made it easier for states to discriminate in voting practices, harder for employees to sue their bosses for discrimination, and easier for property owners to resist government takings for public ends.
Faced with rising opposition to discrimination against gays and lesbians, though, the court struck down DOMA’s federal marriage ban in Windsor v. United States. The federal government will now treat legally married same-sex couples the same as straight couples. Same-sex couples in discrimination states like Florida face ambiguity and more litigation.
Apart from new rights for some and hope for others, Windsor reframes the public debate by conceding what anyone familiar with the Defense of Marriage Act (DOMA) knew: the statute was about irrational hostility towards a minority rather than the ludicrous argument that gay marriage could harm straight people.
Hostility is easy to spot with the Westboro Baptist Church — a small group in Kansas that seeks media attention by holding anti-gay protests at military funerals even when the dead soldiers are not gay. At least the Westboro group owns up to its hostility when it protests.
Legislators are wilier in their hostility. When demeaning a group, they weave their hostility into statutory provisions that impose stigma in the name of some authority. Courts call hostility through this kind of legal know-how “animus.” It is the dark side of democracy.
Discrimination advocates like our own Sen. Marco Rubio (he promoted marriage discrimination in immigration reform) avoid facing how their actions attack the dignity of gays and lesbians. The Windsor ruling makes it harder to pull this off. It shows the country how to recognize the illogical thinking in hostility against gays, especially when it is gussied up as something else by elected officials, Catholic cardinals, or Justice Antonin Scalia.
So it just became harder to act like a bigot without being called out as one. And it just became easier for the new silent majority to speak up for their gay and lesbian family, friends and co-workers. As a result, some are already wailing that — like Rodney Dangerfield — they don’t get any respect when they try to treat gays and lesbians as morally inferior.
What exactly have discrimination advocates lost?
Their churches can still praise straight superiority, tarring gays and lesbians as diabolical mistakes of an angry God. Parents can still compel their kids to be or act straight on pain of punishment. Many radio, television, and Internet programs talk about gays and lesbians as second-class citizens or worse. Politicians still trip over themselves to defend “traditional” marriage. In more than half the states, an employer can even fire any gay or lesbian staff, even if they are star employees.
If you want to discriminate against gays and lesbians, you’ve lost no right to do so. Just don’t expect others to approve. And it’s going to get worse. Expect more full-throated support for marriage equality.
Look at how the Ninth Circuit Court of Appeals implemented the Supreme Court’s other gay marriage case, Perry v. Schwarzenegger, the case about Prop. 8. Perry ordered the Ninth Circuit to lift its stay on a lower court case that had found the Prop. 8 marriage ban unconstitutional in California. The Ninth Circuit complied at once, even before Prop. 8 backers could request reconsideration.
Why the rush to equality? The appellate court was signaling that Prop. 8 — like DOMA — reeked of animus, unworthy of respect even an instant longer.
The discrimination states may hold out for years, but Windsor moves social stigma to where it belongs — in the category of irrational attacks on the equal dignity of gays and lesbians. Sexual minorities can’t recover their dignity alone, however. Some of us have gotten used to being treated as morally inferior by parents, teachers, bosses, judges, doctors and clerics. These folks have done such a magnificent job at stunting expectations that not everyone may snap out of it as quickly as the Ninth Circuit did.
Thankfully, Windsor and Perry have made it respectable for anyone to show their moral clarity on this question. Please do.
José Gabilondo is a professor at the College of Law, Florida International University.