Landmark Decisions on Same Sex Marriage...The Struggle Must Continue

July 7, 2013 | Revolution Newspaper |


On June 26, the Supreme Court ruled against the Defense of Marriage Act (DOMA), and upheld the overturning of Proposition 8, which banned same-sex marriage in California. Both rulings have far-reaching implications for the basic rights of same-sex couples, and people across the country celebrated!

June 27, 2013. People celebrate Marriage Equality in downtown Orlando, Florida. Photo: AP

From the more than 30 rallies held in California alone, to more than 150 other "Decision Day" and "Marriage Equality" events across the country, people from all backgrounds stood together to celebrate these landmark decisions, which represented the legal recognition of same-sex love—after centuries of torment, humiliation, shame, and cruelty against LGBT people. This was evidenced in the bright smiles and defiant spirit of thousands of couples filling the streets across the nation in jubilant and triumphant crowds, carrying giant rainbow flags, t-shirts and signs, celebrating the decision.

This ruling in large part came about due to decades of struggle by LBGT people for equal rights and against the whole way they are discriminated against in society. But at the same time, there are stark limits to what was actually won in the Supreme Court decisions. This reflects the limits of what this oppressive system can and will offer when it comes to actually liberating social and gender relations. These rulings were very narrow, significantly rooted in "states' rights" logic, which leaves us with a situation where same-sex marriage is still illegal in the great majority of states.

"Defending Marriage"

DOMA is a bill that was first signed into law by Bill Clinton in 1996. This is a reactionary law, which came at a time when the acceptance of gay, lesbian, transgender, and other non-traditional sexualities was spreading and growing throughout society. The signing of this bill into law represented a real backlash against increasing acceptance of LBGT people and widespread acknowledgement of the legitimacy of same-sex love and relationships. For over a decade, this law—supported in full force by the Vatican and the most conservative Republican legislators—has ensured that same-sex couples (even in the states that have legalized same-sex marriage) find themselves in many situations unable to be recognized as parents of their children, inherit wealth from deceased partners, sponsor foreign-born spouses for green cards in the U.S., or have access to visit their partners in hospitals in emergency situations, and it has effectively locked millions out of over a thousand other institutionalized benefits of marriage.

Declaring DOMA unconstitutional does represent a big change in U.S. law. Justice Anthony M. Kennedy, who wrote the majority opinion in the case, stated a sweeping principle: that DOMA was an affront to "the equal dignity of same-sex marriages." He went on to say that DOMA was unconstitutional because it was intended to "disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity."

Kennedy points to something real and important when he refers to equal dignity and critiques the odious intentions and effects of DOMA. However, through these rulings, the Supreme Court actually sidestepped this essential question—because apparently, for the Court, the equal dignity of people is still an issue that should be left up to states to decide! So DOMA was struck down, but in its decision with regard to Proposition 8, the question of whether or not same-sex couples can receive the same rights as heterosexual couples was left to the states to decide. And in 37 of the 50 states, same-sex marriage is thus still illegal. Whether same-sex couples actually have basic rights has been left to the mercies of the political process in conservative states like Utah, Texas, and Alabama.

Proposition 8 and "States' Rights"

Proposition 8, banning same-sex marriage in California, passed with a 52 percent vote in 2008. In 2010, a ruling by Chief U.S. District Judge Vaughn Walker overturned that law, in a decision that was celebrated from California to New York.

The June 26 Supreme Court decision upheld Walker's ruling and legalizes same sex marriage in California along with all that comes with that.

But the ruling leaves in place all other state laws banning same sex marriage, and the court refused to say whether there was a constitutional right to such unions, in what is rightly being called a "cowardly move." Evading this issue means failing to declare that LGBT people are human beings, and leaves millions across the vast majority of this country without these basic rights. This amounts to implicitly institutionalizing the "right" of states to outlaw same-sex marriage.

We analyzed the fuller meaning of this kind of ruling in "Same-Sex Marriage: A Basic Right, A Just Demand" (Revolution #300, April 7, 2013): "Such a ruling would potentially create a situation similar to the U.S. before the Civil War, when there were 'free states' and 'slave states,' except that this time there would be states where same-sex couples could marry and states where they could not. The rights of same-sex couples would not be recognized under state law in states that banned same-sex marriage. And 'states' rights' was the rallying cry of the segregationists during the civil rights movement. This is not a logic that anyone opposed to prejudice, discrimination, and the violent enforcement of those things should want to have anything to do with!"

Jeb Bush, former governor of Florida, recently said, "....traditional families are what are going to end up leading our renewal, that moms and dads or husbands and wives that love their children with all their heart and soul is going to be the path to restoration for our country." (interview with the Christian Broadcasting Network, June 14, 2013) According to this quote from Bush, there is something wrong with the love that same-sex couples show to their children—and the domination of this kind of thinking, in big sections of the country, inscribed in law at the state level, is exactly what the the "states' rights" logic of the Supreme Court decisions enshrines. Basic human rights should never be up to the states, especially reactionary states, to decide!

The fact that the Supreme Court has in this instance actually recognized same-sex marriage, even in this truncated and narrow way, reinforces wrong views that this system is "self-correcting," is somehow "slowly moving towards equality," and that the way to end inequality and oppression is to work through the political structures, the courts, the legislatures, elections, etc.

Two key points here: One, these courts, legislatures, elected officials and the whole process of elections were forged from the beginning and have developed over the years as a way to enforce the basic oppressive relations of capitalism. The whole process by which Prop 8 was passed in California is a concentrated example of this—and it is being spread across the country. It has been a way to pass reactionary and fascist measures while saying, "This is the will of the people." In actuality, putting these rights up for a vote continues "an outrageous precedent [that has been] set: that any right of any group of people can be put 'up for a vote,' at the mercy of religious lunatics, people locked in the grip of ignorance, and fascist manipulators." [Revolution #300]

Secondly, it is a basic and crucial point that any movement for any significant and important social change has to go outside the political framework of elections and the system to make any real progress at all. And none of the changes happening in society toward achieving equality for same-sex couples would have ever come about without tremendous struggle waged by LGBT people and others against the widespread discrimination and persecution faced by LGBT people and to change the whole climate and attitude in society toward same-sex couples.

 "A Massive Disruption of the Current Social Order"

In his dissent to a the 2003 Supreme Court decision on Lawrence vs. Texas,which struck down the sodomy law in Texas Scalia bemoaned, "What a massive disruption of the current social order." To the extent this is true now, this is a fine thing—and what is urgently needed is further, deeper, and outside-the-system disruption!

Bob Avakian, Chairman of the Revolutionary Communist Party, has said, about the struggle for the rights of same-sex couples, " its principal aspect this has, and can to an even greater degree have, a very positive, 'subversive of the system' effect. This is a contradiction which, in the society overall, is 'out of the closet.' It could be forced back into the closet, and underground, with not only the stronger assertion of the kind of fascist movement that is being supported and fostered by powerful ruling class forces in this period, but with the actual assumption of a fascist form of bourgeois dictatorship. But the struggle against the oppression of gay people is not going to be easily suppressed." (BAsics 3:25)

These cases have come before the Supreme Court in a situation in which there have been rapidly changing attitudes in this society toward LGBT people, coming into collision with reactionary laws that starkly repress LGBT people. Gay and lesbian sexuality is a broad societal phenomenon that affects society and expresses itself in every sphere—from the military, to business, to the government and social and cultural life. And there are conflicts within the ruling class over how to respond to this.

The Scalias of the world, including most of the Republican Party and religious forces including the Mormons and the Catholic Church, insist on state enforcement of traditional values, very much including denial of same-sex marriage, as crucial for preserving the system in times of great turmoil.

Others in the ruling class, including the position taken in this case by Justice Kennedy and the majority of the Supreme Court, see a need to accommodate this aspect of diversity and expression in order for society to function. And they also recognize the need for the U.S. to project an "enlightened" image on this internationally and that the U.S. is even somewhat "coming from behind" on this, with many other countries already allowing same-sex marriage.

At the same time, this is a very dicey and potentially explosive contradiction for the system, exactly because this runs counter to the patriarchy and "traditional family values." And even as there are forces within the ruling class who see the need to recognize LGBT relations in society, they are trying to normalize this within the framework of patriarchy, patriotism, and the overall relations of inequality and oppression in this society.

The Supreme Court decisions, while ending the oppressive legislation in DOMA, essentially leave intact the prevailing oppressive system of gender relations—including a culture where throughout society people who do not conform to rigid gender roles are not seen or treated as fully human; an oppressive, hateful, dehumanizing culture of bullying, harassment, alienation, and violence continues to target those who do not fit neatly into the rigid definitions presented by archaic tradition.

One sharp example of this reality is New York City, which has the highest reported gay population in the country (nearly 300,000 people). Look at Mark Carson, 32 years old, who just last month was murdered in cold blood in Greenwich Village by a man who followed him down the street, taunting him with anti-gay slurs and yelling, "Do you want to die tonight?" before shooting him down in the street. Look at the five other anti-gay hate crimes that were committed within TWELVE DAYS of Carson's murder, in New York City alone!! Look at the TWENTY-ONE anti-gay hate crimes that have been committed in New York City so far in 2013.

We are at a moment when the outrages of this system stand raw and angry before us. Villages targeted by drones, U.S. kill lists drawn up in secret, mass incarceration and the torture of solitary confinement, widespread government surveillance. The list of outrages goes on and on. To even discuss that there is a problem with this system in a serious and real way is almost completely banned by the system's media watchdogs and gatekeepers. Yet seething beneath the surface is profound anger and discontent, surfacing now here, now there.

This is the situation in which the Supreme Court has issued its rulings upholding same-sex marriage, seeking to shore up the legitimacy of a system that is in trouble and which has treated LGBT people in a vicious and savage way for centuries—and which is now offering same-sex marriage only in a limited way. What the Supreme Court decisions, the real history of LGBT people in this society, and most fundamentally what the real nature of this system actually show is that we need a revolution and a radically new and different socialist system as part of a transition to a communist world. We have a chance to be part of a revolution to overturn ALL oppression and injustice—who would want to settle for anything less?

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