For the first time since an ancient spate of cases in the early 1970s, lesbians and gay men today are in court challenging the denial of our equal right to marry. For the first time ever, with the Hawaii Supreme Court’s recent ruling in Baehr v. Lewin, we stand on the verge of victory, with all its implications. Those opposing our efforts fall into two camps: presumptively non-gay and gay. As Senior Staff Attorney for Lambda Legal Defense and Education Fund, and as co-counsel in Baehr v. Lewin, the pending marriage case in Hawaii, I have ample opportunity to address the standard non-gay arguments against equal marriage rights. Throughout our litigation, the state has proferred these arguments to justify its imposition of a “different-sex restriction” on marital choice.’ Accordingly, in this article, I will not dwell at any length on the response to the official, “non-gay,” or anti-gay opposition to our equal rights. I invite those interested in hearing our response to the state attorneys to read our briefs.
Instead, I would like to address here some of the opposition by my lesbian and gay colleagues to our fight for the right to marry. It may surprise non-gay readers, as well as many gay readers, that a small but influential group of lesbian and gay activists urges that the gay movement not seek equal marriage rights, and is not moved by the victory in Baehr, a break-through case that most might see as gay people’s Loving v. Virginia. Others might expect a difference of views and tactics in a community as varied and diffused as the gay community. And, of course, just a few years ago, whatever one’s views, few expected that we could persuade courts and society to take this demand for justice and equality seriously, that we could “mainstream” social consideration of same-sex couples’ marriages, or that equal marriage rights for gay people would be close to realization so soon.
Nevertheless, there is still some intra-community opposition and resistance to fully committing to the work at hand. I will frame much of this essay as a response to a piece by Professor Nancy D. Polikoff, a lesbian academic and advocate whose work on a range of issues I much respect.” A colleague in the gay rights movement, Professor Polikoff has been per-haps the most consistent intra-community critic of my views in favor of marriage challenges. Her intellectual opposition has continued despite the victory in Baehr.
I believe an examination of the intra-community debate over gay people’s marriage rights may contribute to an understanding of how social change occurs and of the roles played by the law, the courts, and impact litigation as compared to other engines of social change. Such understanding, of course, is of importance to gay and non-gay activists and legal theorists alike. Most important, I hope that participating in intracommunity discussion here will make it easier for lesbians, gay men, and our allies to overcome inevitable tactical differences, enabling us to do the historic work at hand nationwide to win and keep our equal marriage rights.
I join here in this intra-community discussion despite my belief that the time for a debate over whether lesbians and gay men should seek our equal marriage rights has passed. Because lesbians and gay men are on the verge of winning our equal marriage rights, it seems to me that we must now unite in preparing to protect and build on that victory.
We know there will be a backlash against us following a final win in Hawaii. As Martin Luther King, Jr. wrote in Why We Can’t Wait, “We must use time creatively, in the knowledge that the time is always ripe todo right.” Since, as King put it, “[i]n this Revolution, no plans have been written for retreat,” we must ready ourselves to defend our victory and advance toward other goals.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.