(PHOTO: Chip Somodevilla/Getty Images, 2012 GETTY IMAGES)
Before their groundbreaking 1973 decision to reverse course, the American Psychiatric Association defined homosexuality as a mental disorder. At the time, many Americans agreed and they found the whole notion of homosexuality to be so outside of mainstream conventional behavior that polling showed that an overwhelming majority of the public did not even support hiring gays or lesbians as schoolteachers. Fast forward a quarter century later and though the public opinion on that question reversed by the late 1990s, public policy was still tilted towards denying equality. In a widely bipartisan vote, the Republican-controlled Congress overwhelmingly passed the discriminatory Defense of Marriage Act. A Democratic president who the gay rights movement had been hoping would be on their side in this case signed DOMA into law at 1 AM in the middle of his reelection campaign. Bill Clinton proceeded to brag about what he had done despite now saying the law should be repealed. At the time, just 27 percent of Americans backed same-sex marriage, a right that DOMA explicitly denied at the national level by stating that federal law defined marriage as a "union between a man and a woman."
Despite celebrating limited victories, the gay rights movement was seemingly going nowhere by the turn of the century. Don't Ask/Don't Tell, billed as a compromise, became an atrocious injustice and DOMA was now the law of the land. As America entered the new millennium, gay Americans found even less hope at the federal level with "moral values"-touting George W. Bush, famously supportive of a Federal Marriage Amendment, in the Oval Office. Bush, after all, was leading a party whose rise to power was fueled by the Religious Right. This was the same Religious Right whose stranglehold on another president they helped elect, Ronald Reagan, was so strong that he criticized the "alternative...[gay] lifestyle" in his 1980 campaign and would not acknowledge the existence of AIDS until 1987. In fact, the power of this movement in American politics was such that it stifled meaningful progress on gay rights for decades after the APA's decision to declassify homosexuality as a mental disorder. The demoralization was evident in the reaction of some of the LGBT community to Andrew Sullivan's 1989 call for gay marriage to be legalized; Sullivan was actually met with loud and vociferous protests from supporters of LGBT rights for such a radical suggestion. Much of the LGBT community, rationally, thought this idea could not possibly come to fruition after the Supreme Court ruled in Bowers v. Hardwick in 1986 that states could actually codify anti-sodomy laws.
Setbacks and regression ultimately began to run their course though. In 2003, the very first signs of true progress for gay Americans were evident. Massachusetts became the first state in the union to legalize same-sex marriage and the Supreme Court overturned Bowers in Lawrence v. Texas. Still though, the American public - in spite of things like Will and Grace opening their eyes up to the gay community - was not on board with the LGBT agenda. A year later, San Francisco Mayor Gavin Newsom permitted his city to conduct same-sex marriages, though ultimately annulled by California, in violation of state law and Vice President Dick Cheney endorsed gay marriage. Still, Americans were not on board. In 11 states, including the swing state of Ohio, Americans voted that November to ban same-sex marriage while the public at large also reelected President Bush. In Bush's second term though, gay rights activists found hope. For one, Bush, almost immediately, disappointed the Religious Right by forgoing the pursuit of a federal marriage amendment in favor of a (failed) Social Security reform effort. Secondly, as Bush grew increasingly unpopular, so too did his policies -- and America, ever so slightly, began moving left. In 2007, the major Democratic candidates for President all condemned DADT and pledged to repeal it while Barack Obama pledged to go a step further and push for full repeal of DOMA - something Hillary Clinton would not endorse. By the time President Obama was elected a year later, a majority of Americans backed the repeal of DADT and more Americans were in support of gay marriage than ever before, albeit not a majority. Not only was America becoming more progressive and not only had it elected a leader sympathetic to the LGBT cause but millions of gay and lesbian Americans were increasingly coming out of the closet. The collective coming out of millions over the course of the last several years undoubtedly furthered public support of this cause. Scores of anecdotal evidence cited in a recent Huffington Post article combined with public opinion polling, which shows people were moved to support gay rights because of gay family and friends, confirms this to be the case.
Further facilitating the elevation of gay rights into the national discourse was the work of the Human Rights Campaign, People for the American Way, the American Foundation for Equal Rights, and scores of other grassroots organizations, that started from the bottom and got lucky (in some cases) with the financial support of wealthy donors and political figures. Their fundraising, phone banking, door-to-door canvassing, and advocacy efforts shed a public light on the gay rights movement - identifiable as both middle-class Americans and popular celebrities like Ellen DeGeneres and Neil Patrick Harris - and led to the legalization of gay marriage in several states. The public quickly warmed up to idea of full repeal of Don't Ask/Don't Tell as well as they saw their fellow Americans denied the opportunity to serve their country as it fought two wars abroad simply because of their sexual orientation. The presence of the wars undeniably helped highlight this injustice and by 2010, 70 percent of Americans, including millions of Republican voters, backed DADT repeal. Obama helped bolster this public support by enlisting the backing of military commanders, leading officers, and generals for his efforts and by December 2010, he was able to say "this is done" when he signed into law the repeal. That wasn't the only piece of legislation that Obama signed that gay rights groups had wanted. Thanks to significant public pressure exerted on the President by the LGBT movement, Obama was compelled to order his Justice Department to refuse to defend DOMA in federal courts, sign the Matthew Shephard Hate Crimes Act, extend hospital visitation benefits to gay couples, and guarantee equal benefits for same-sex federal employees. As Obama led on the issue, thanks in no small part to a concerted effort to keep him at his word, millions of Americans quickly changed their minds on gay rights. By 2011, Gallup found that a majority of the public, 53 percent, supported same-sex marriage for the first time ever. A year later, Barack Obama became the first sitting president to publicly back gay marriage -- a significant turning point for a movement which had been continually disappointed by a string of presidents who ignored their cause. Obama's, and Joe Biden's, backing of gay marriage led to an almost immediate boost in public support for marriage equality - nationally, in swing states, and among constituents with which he had great sway: registered Democrats and African-Americans. Within time, the issue became seemingly no longer controversial as it was not mentioned once in any of the presidential debates and Mitt Romney largely remained quiet, despite opposing marriage equality. The Democratic Party quickly adopted support for gay marriage into its national platform and that November, Obama was reelected while Washingtonians, Maine residents, and Marylanders all made gay marriage legal in their states. Fast forward to the last few weeks and the gay rights movement saw yet more impressive victories: an American President used the word "gay," referencing the Stonewall riots, in an Inaugural address and that same president filed two briefs in the Supreme Court asking the Court to side for marriage equality in both the Prop 8 and DOMA cases.
Today, 58 percent of Americans support gay marriage; it is backed by all living Democratic Presidents and Vice Presidents, a former Republican Vice President, two former Secretaries of State of different parties, a majority of congressional Democrats, at least 76 prominent Republicans including an Ohio Senator and former U.S. Ambassador, and, for the first time ever, the highest court in the land is hearing a case on this specific issue. Political scientists, journalists, and assorted analysts of media and politics have been left collectively amazed by how vast, quick, and stunning the sea change in public attitudes towards gay rights has been. For a country founded on the notion that "life, liberty, and the pursuit of happiness" were necessary tenants of our republic, this dramatic shift is one of which we ought to be proud. This is what American exceptionalism looks like. The success of the gay rights movement is part of the great history of the American people -- a people with a history of continual social progress fueled by mass movements of Americans rising up and demanding successfully that we live up to our core creed of "all men are created equal." In seeing their quest for full equality come to fruition, the LGBT movement joins, in the annals of history, the movements of abolitionists, women's suffragists, and civil rights marchers in being part of that great American journey of continually aiming to be a "more perfect union." Like those movements that preceded them, the gay rights movement can claim that they used all levers of power, from the bottom up with the help of millions of their fellow countrymen, to advance their cause and see to it that the American ideals of "liberty and justice for all" were protected.
It is likely that the Supreme Court will repeal the Defense of Marriage Act and Prop 8, at the very least extending federal benefits to legally married same sex couples and ruling that gay marriage is legalized in California. However, in my opinion, I am optimistic and ready to go out on a limb. I believe that the Court will not only make that ruling but that it will further find that denying same-sex couples the right of marriage violates the 5th Amendment guarantee of not depriving one of "liberty" without due process of law and violates the 14th Amendment pledge of not denying one "equal protection under the law." In going this far, the Court will find that it contradicts the precedent set in Loving v. Virginia that marriage is a federal "fundamental right" --- thus issuing one single ruling that gay marriage is legal in all 50 states. I am confident in this opinion because the country appears ready for it, as the polling indicates and as the sentiment of the nation indicates. The Court is known to closely follow public opinion and it could not be clearer in this case. The two Justices to watch are Anthony Kennedy, the "swing" justice who wrote the pro-gay majority opinion in Lawrence v. Texas, and Chief Justice John Roberts, a legacy-oriented justice whose lesbian cousin will attend Tuesday's hearing and who already bucked his conservative bloc in voting to uphold Obamacare in 2012. Regardless though of what happens at the Court, the gay rights movement has already won. "The political debate on gay marriage is over," read a Washington Post headline last week, while Jeffrey Toobin, the famed legal analyst, declared that there is no question that the "country will never go back to where it was" on these issues. Less than a decade ago, such statements would have been unthinkable for the LGBT community. Their devotion to this effort and the dramatic change in public thinking that that push for equality caused - marked by the evolution of millions of Americans and the President who leads them - is no small feat. For decades, the gay rights movement has yearned for "equal protection under the law." In advancing this cause and succeeding, they've forged a commendable journey worthy of a great nation and its promise of liberty for all.
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