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Decade in review: Same-sex marriage was the decade's top story

by Lisa Keen

Proposition 8 plaintiffs Sandy Stier, left, and Kris Perry rode in San Francisco's Pride parade June 30, 2013, just days after they were married by then-state Attorney General Kamala Harris. Photo: Rick Gerharter
Proposition 8 plaintiffs Sandy Stier, left, and Kris Perry rode in San Francisco's Pride parade June 30, 2013, just days after they were married by then-state Attorney General Kamala Harris. Photo: Rick Gerharter  

Same-sex marriage was the decade's top LGBT story. It embodied twists and turns and went on for years — in the courts and in the streets — as the issue finally broke through the mainstream in ways that many LGBT people thought they would never see in their lifetimes.

In some ways, the classics of Charles Dickens come to mind. Like in the infamous passage from "A Tale of Two Cities," the past decade for LGBT people carried "the best of times" and the worst. It was an "age of wisdom" and of foolishness; "an epoch of belief" and incredulity; "a season of light" and then darkness. It was "the spring of hope," followed by the "winter of despair."

The question that looms over the start of the new decade is whether hope and light, wisdom and belief — in American democracy and in the hearts of American people — will prevail.

In a letter to House Speaker Nancy Pelosi (D-San Francisco) December 17, President Donald Trump warned that the House impeachment proceedings against him constituted "open war" and an "attempted coup." He likened the investigation into his request that Ukraine announce an inquiry of the top-polling Democratic presidential candidate for 2020 to the Salem witch trials. In a widely viewed on-the-spot interview following a Trump campaign rally in Pennsylvania, a supporter of the president speculated that, if the Congress removes Trump from office, Trump supporters would react with "physical violence in this country that we haven't seen since the first Civil War." (The House impeached Trump December 18 on two articles for abuse of power and obstruction of Congress.)

This was not one aberrant view. In August, an ABC News survey documented 36 incidents of violence in which the perpetrator said he was inspired to act because of Trump — seven by people who opposed Trump, 29 by people who supported him.

"The perpetrators and suspects identified in the 36 cases are mostly white men ... while the victims largely represent an array of minority groups — African-Americans, Latinos, Muslims, and gay men," said ABC.

"ABC News could not find a single criminal case filed in federal or state court where an act of violence or threat was made in the name of President Barack Obama or President George W. Bush," said the network.

The best and the worst
During the Obama administration, the federal Defense of Marriage Act was eradicated, the long-sought right to marriage equality was realized, and Congress repealed the ban on gays in the military — the Obama administration said transgender people could serve, too.

LGBT people working for the federal government could file employment discrimination claims under Title VII of the Civil Rights Act of 1964. Those working for companies that contracted with the federal government also had protection under a presidential executive order. And Obama made clear, through actions and words, that he would stand up for the civil rights of LGBT people.

During the Trump administration, many of those gains were lost. Trump announced a ban on transgender service members within months of taking office. He signed an executive order reversing Obama-era protections for LGBT federal employees and contractor employees. Under Trump, the Department of Education withdrew an advice letter to schools that had suggested transgender students were protected by Title IX.

The Department of Health and Human Services announced it would no longer interpret the Affordable Care Act to prohibit discrimination based on gender identity and it removed questions from at least two federal surveys that would have identified data specific to LGBT people.

The Department of Housing and Urban Development canceled a survey to determine the prevalence of homelessness among LGBT people and removed from its website a link that instructed emergency shelter personnel on sensitivity to transgender people seeking help.

Beyond this contrast between the administrations of Obama and Trump, there were these other major moments of light and darkness.

Deputy City Attorney Therese Stewart held a copy of the Supreme Court's positive decisions about DOMA and Proposition 8 during the official city reaction to the rulings June 26, 2013. Stewart is now a state appeal court justice. Photo: Rick Gerharter  

Same-sex marriage
Even before the decade started, marriage equality was an issue in California. The past decade saw the passage of Proposition 8, which banned same-sex marriage. In 2010, gay federal Judge Vaughn Walker presided over a trial in San Francisco and that August overturned Prop 8 in Hollingsworth v. Perry. The case was appealed but a 9th U.S. Circuit Court of Appeals panel ruled in favor of the plaintiffs. Prop 8 proponents appealed the case to the U.S. Supreme Court, which in June 2013 declined to revisit the 9th Circuit's decision, effectively legalizing same-sex marriage in the Golden State.

Months later, IRS officials to state that summer that they had decided to allow same-sex couples in marriages recognized by their state to file jointly — the same as heterosexual couples.

In 2015, the Supreme Court ruled that state bans on marriage for same-sex couples are unconstitutional and that states must recognize marriage licenses issued to same-sex couples from other states. The 5-4 decision, in Obergefell v. Hodges, came 43 years after the first same-sex couple brought a case before the Supreme Court seeking marriage equality. The court dismissed that appeal, Baker v. Nelson, in 1972, but efforts to achieve marriage equality continued through the four decades. There were battles in the courts and on the ballot. Finally, the legal challenge reached the Supreme Court again and Justice Anthony Kennedy, writing for the majority, stated "the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. ... The court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them."

Kennedy retires
Kennedy did not have the best LGBT voting record on the high court (that honor goes to Justice Ruth Bader Ginsburg), but he did provide the crucial fifth vote for, and led that majority in writing eloquently, the most historic and significant decisions in support of equal rights for LGBT people. In this decade alone, he led the decision (U.S. v. Windsor in 2013) that struck down a key section of DOMA that had denied recognition of marriage licenses for same-sex couples for any federal purpose. He led the majority again in writing the aforementioned Obergefell v. Hodges, striking down state bans against recognizing or issuing marriage licenses to same-sex couples.

But the season of light was followed by darkness. In 2017, he voted with a majority, in Trinity Lutheran v. Comer, to say that church schools should receive state grants the same as non-church schools. Lambda Legal Defense and Education Fund said the ruling amounted to state support for discrimination based on sexual orientation. In 2018, Kennedy led a majority in Masterpiece Cakeshop v. Colorado that enabled a baker to discriminate against same-sex couples to evade a state law barring sexual orientation discrimination in public accommodations by claiming a religious right to do so.

And then, after the 2018 term, he suddenly retired. That not only meant the loss of Kennedy, it resulted in turning his seat over to an ultraconservative replacement (Brett Kavanaugh) and tipping the balance decidedly away from the trend of progressive rulings toward LGBT people as equal citizens.

President Barack Obama signed the "Don't Ask, Don't Tell" repeal December 22, 2010. Photo: Patsy Lynch  

DADT repealed
In another long-standing battle for the LGBT movement, Congress, in 2010, repealed a law enacted in 1993 that banned openly gay or lesbian people from serving in the military.

Obama helped drive through passage of the repeal of the ban signed into law by a previous Democratic president, Bill Clinton. When Clinton signed the ban, most Americans supported it (56%), but by the time of the repeal, only 21% favored a ban.

In 2010, a Williams Institute study estimated there were 48,500 lesbians, gay men, and bisexuals serving on active duty.

Since the repeal, the Defense Department has participated in Pride celebrations, Eric Fanning, a gay man, served as the secretary of the army (in the Obama administration), and lesbians, gay men, and bisexuals can be honest about their sexual orientation without being discharged. A Defense Department survey in 2015 estimated about 80,000 service members were LGB.

But the fight goes on, as the Trump administration attempts to defend its ban on transgender service members. As the decade closed, efforts to thwart the ban through language in a bill in Congress authorizing defense spending failed, but legal challenges are still proceeding through the courts.

GOP controls Senate
In the November 2014 midterm elections, Republicans won control of the Senate, giving the party dominance in both chambers of Congress (until Democrats took control of the House two years later) and making the prospects for passage of any pro-LGBT legislation — including the Equality Act (formerly the Employment Non-Discrimination Act) — virtually nil.

With Republicans in control of the Senate, it also gave right-wing conservatives complete control over filling Supreme Court seats, which they exercised — some say overreached — to obstruct the confirmation of Obama appointees — including Supreme Court nominee Merrick Garland — and give Trump two appointments to the high court (Kavanaugh and Neil Gorsuch), creating a new conservative majority.

It also enabled conservatives to mount an aggressive campaign to confirm young, conservative judges to federal appeals (47 so far) and district courts (112). The effects of their confirmations will be felt for decades to come.

Edie Windsor's court case, in which the U.S. Supreme Court threw out a key provision of the Defense of Marriage Act, helped usher in equal rights for same-sex couples. Photo: Bill Wilson  

DOMA dies
With Kennedy writing for the 5-4 majority, the Supreme Court declared in 2013 that the key provision of DOMA was unconstitutional. The law, signed by Clinton in 1996, had barred any federal entity from recognizing for the purpose of any benefit the valid marriage license of a same-sex couple. The majority opinion in U.S. v. Windsor, said DOMA Section 3 violated the constitutional guarantees of equal protection and due process.

The decision struck like the first domino to fall against same-sex marriage prohibitions. State legislators cited it during debates over marriage equality bills; state and federal courts cited it to strike down other DOMA-like laws and regulations.

On the perch of a new year and a new decade, the presidency, the control of Congress, and the Supreme Court stand once more as pivotal determinants in the "futurity," as Dickens called it in "Hard Times."

"Do the wise thing and the kind thing," he offered that troubled world, "and make the best of us and not the worst."