Victory for same-sex marriage must lead to broader focus on LGBTQ discrimination
Korean American Ryan Garner-Carpenter, 27, walked down Market Street at SF Pride, a new man of options.
Ask him what he’s into and he’ll say leather and whips.
But if he was into all things bondage before last week, now he can add something new–the right to marry.
For gay Asian Americans like Ryan, this right is now protected by the Constitution.
And he has this man to thank.
Jim Obergefell, the lead plaintiff in the historic case that made same-sex marriage legal in all 50 states, was riding high as the honored guest at Sunday’s San Francisco Pride parade.
The celebratory weekend began early for Obergefell on Friday when the Supreme Court delivered its historic 5-4 decision. It was punctuated by a congratulatory call from President Obama.
“Not only have you been a great example for people,” the president said to Obergefell, “but you also brought about a lasting change in this country, and that’s pretty rare when that happens.”
Let’s hope it lasts.
Obergefell challenged Ohio’s same-sex marriage ban and went to Maryland to get married. But when he returned to his home state, Ohio still didn’t honor his marriage.
The Supreme Court fixed that by saying that the right to marry applies everywhere in the U.S.
Justice Anthony Kennedy’s ruling on same-sex marriage made reference to Loving v. Virginia—the 1967 ruling that lifted all bans on interracial marriage. It played a key part in his decision.
“A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy,” Kennedy said. “This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause.”
The other half of the argument was based on the equal protection clause of the 14th Amendment.
But it was the liberty argument that sealed the deal.
NYU Law professor Kenji Yoshino called it one of the things that was really clever about the Kennedy opinion.
“He could have gone on equality grounds, but he primarily rested on liberty grounds,” said Yoshino to CNN’s Anderson Cooper. “If you go on equality grounds, you can either level up or level down. You can say we’re not issuing marriage licenses to anyone, or we’re issuing them to everyone. Once you say there’s a fundamental right, as Kennedy did in his majority opinion, you can’t level down anymore.”
Yoshino said challenges to the ruling were unlikely to prevail, and that calls for constitutional amendments were “utopian arguments.” He also said that proposed statutes to protect religion from its conflicts with gay marriage won’t work either, given the precedent established by Kennedy’s decision.
In many ways, the plight of Obergefell was not much different from that of Asian Americans at the turn of the 20th century, when anti-miscegenation laws were bigoted responses to prevent marriage to whites. These laws forced many Asian Americans to cross state lines to marry. It wasn’t until 1967 that the Loving case made interracial marriage legal in all 50 states.
Just as the old laws on race and marriage wreaked havoc on the personal histories of my extended Filipino family, my cousin Pauline experienced the history of same-sex marriage firsthand.
In 2003, Pauline “married” her spouse, Jill Togawa, in San Francisco, when civil unions were seen as the solution of the day. Was it a wedding? It sure looked like it to me.
It was the height of the really bigoted rhetoric about same-sex marriage.
As a public service, I suggested that people go to a gay or lesbian wedding to understand what it was all about.
In 2003, I wrote in the San Francisco Chronicle: “If you’re blessed to experience one, as I was to attend my cousin Pauline’s, all you notice is the love. And then you can see for yourself how hateful, intolerant and discriminatory this madness over marriage really is.”
But Pauline wasn’t done.
In 2004 in San Francisco, then-Mayor Gavin Newsom took a stand, and despite little support from national political groups–gay or straight–the city allowed legal marriages to take place. Pauline and Jill got married again.
In 2008, when California recognized the right to marry, Pauline and Jill married a third time.
But then they moved to Hawaii, where marriage was illegal.
In 2010, Pauline and Jill decided to become one of the plaintiffs to challenge Hawaii’s law. But that was derailed when the legislature acted and same-sex marriage was ultimately made legal in 2013.
When the Supreme Court decided the Obergefell case, it was still early in the morning.
“I just felt a sense of peace,” she told me from Honolulu when I called her.
The San Francisco parade was a slightly more raucous.
Whenever news coincides with Pride as it did in 2013, when the appeal of Prop. 8 failed and weddings resumed in California, it’s always a bit more electric.
This year, there were more than 200 marching units, with Asian Americans well represented, especially among employee groups of the biggest high-tech firms in the world, such as Google, Yahoo, and Facebook.
Most of the marchers were young, and considering how millennials are less likely to be married these days, it’s hard to imagine if the marriage fight really resonated.
But they shouldn’t confuse marriage rights with full equality. The fight for same-sex marriage was just one small part of a more comprehensive fight for equal rights for the LGBTQ community.
In states like Tennessee, discrimination in jobs and housing can still occur against LGBTQ people. While at least 22 states have some laws that protect against discrimination, the vast majority of states do not.
And so the party ends.
But the fight for justice never does.
All photos by Emil Guillermo.