Marriage Equality Was Never Enough

In the eight years since Obergefell v. Hodges, the rhetoric of “love is love” has done very little to further true justice for the queer community

I know you are all thinking about tonight’s debate, but today we have a great guest post while I gear up for the Republican clown car getting its show on the road. Tomorrow, there will be a special edition newsletter about the Republican clown car for all paying subscribers. Which would be a good reason to:

James Obergefell (left), the plaintiff in Obergefell vs. Hodges and his lawyer, Al Gerhardstein, at a rally in front of hte Supreme Court, June 26, 2023. Photo credit: Elvert Barnes/Wikimedia Commons

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When my wife and I married legally in December of 2020, we decided not to tell people. We had wanted a big wedding, but the pandemic made that impossible. We settled for a Zoom appointment with a representative from City Hall and a small ad hoc ceremony on a blustery pier facing the Statue of Liberty. We only removed our masks for the two minutes it took our friend Julia to pronounce us married. I wish I could say that I was filled with joy when she said those words.

But in truth, my feelings were equal parts happiness and terror. 

Nobody wants to get married on the coldest day of December in the middle of a state-mandated lockdown, but my wife and I felt we had no other choice. Amy Coney Barrett had just been nominated to the Supreme Court, and we weren’t sure marriage equality would survive a conservative majority. The pandemic was raging, especially in Brooklyn, where we had hunkered down, just trying to survive, for the past nine months. What if one of us became ill with Covid and needed to go to the hospital? What if my partner wasn’t recognized as part of my family, able to visit me, or communicate with my doctors about my care? What if one of us lost our job and needed health insurance? 

None of the worst-case scenarios we feared in 2020 came to pass. Two and a half years later, we are still legally married and, fortunately, in good health. We finally had our public wedding this summer, and it was a beautiful celebration of chosen family and queer love.  

And yet, despite this legal and social recognition of our union, our fear of being denied basic rights as queer women has persisted, if not worsened, since that day on the Brooklyn pier. 

Although marriage equality had a meaningful and direct impact on my own life, given the recent rise in anti-trans laws and state-sanctioned censorship of queer narratives, it hasn’t had the general effect“that many gay marriage advocates promised: acceptance, celebration, safety, belonging. Instead, gay marriage appears to have set the stage for a virulent brand of anti-LGBTQ sentiment to thrive on the right, a campaign that targets the most vulnerable among us.  

Some people have used the term “backlash” to describe the ongoing legislative attack on the queer community by conservative legislators. That term is inadequate and is perhaps even misleading. A backlash implies a questioning of preexisting rights and an attempt to dismantle those rights in favor of a prior model—and on the surface, that is the case. Yet, this coordinated attack on LGBTQ people has surpassed and transformed prior forms of sexual revanchism. It is now its own beast.  

Of course, the “backlash” narrative rings true in some cases. For instance when, in his separate decision in Dobbs last year, Associate Justice Clarence Thomas opened the question of whether other rights that, like Roe, presumed the right to privacy (marriage equality was one) were constitutional. However, gay marriage represented a specific political crisis that Obergefell v. Hodges, the case that established that right: conservative politicians have historically invested in homophobia and transphobia as an illiberal means of concentrating power and weakening American democracy.  

That this crisis has intensified since 2015 should, perhaps, not surprise us. It’s not as though Obergefell v. Hodges settled all preexisting questions of gender, sexual orientation, and the role of queer people in American society. Plenty of people, most of all trans, gender non-conforming, and non-monogamous people were left out of a legal compromise that seemed to declare marriage equality as equivalent to social and political equality. We are seeing the fruits of this compromise now. Aspects of queer life that were decriminalized at the end of the 20^th century, such as cross-dressing, the right to public gatherings, dancing, and access to healthcare, are now facing coordinated legislative attacks on both the state and federal levels. Some conservatives state at least one goal openly: to eliminate transgender people altogether.  

As a result, since Obergefell, the lives of many queer people in America have arguably gotten worse. Our increased visibility in media and politics may have helped to empower us politically and sometimes even socially, but it has also triggered a wave of laws from Republican-dominated states that aim to eliminate, incarcerate, and impoverish queer folk based on our gender identities and sexual orientations. Increased violence has accompanied these developments: in the last month alone, queer dancer O’Shae Sibley was murdered for dancing to Beyoncé’s Renaissance in a gas station parking lot. Shop owner Laura Ann Carleton was murdered for displaying a Pride flag outside of her store in California.

America is not a safe or even kind place to be queer in the twenty-first century. Our silver bullet—marriage equality—turned out to be a drop in the bucket in terms of queer liberation, something that lesbian legal scholar Katherine Franke predicted back in 2011 when a favorable Supreme Court decision on marriage still seemed like a far-off dream. 

At the same time, visibility, long believed to be a precursor to acceptance, has, in fact, been a mixed blessing, particularly for those who are impatient with society as it is. The frenetic adoption of the acronym “LGBTQIA+” in recent years by mainstream corporations, media outlets, DEI consultants, and marketing has only further entrenched the idea that queer people are a discreet minority deserving of “rights”— but only within existing social and political frameworks. This chronic over-emphasis on identity, alongside milquetoast calls for “inclusion” from progressives, has given liberal politicians and pundits a convenient pedestal from which to preach acceptance while eliding the actual needs of queer people who are poor, unhoused and with limited access to education and well-paid work. It has also produced rifts within queer movements, pitting certain identities against others, especially cis people against trans and nonbinary people.  

The questions and contradictions that accompanied my wife and me to that Brooklyn pier in 2020 were not so different from those that our queer elders wrestled with when the fight for marriage equality first started before the 1980s. Before then, except for the occasional rogue attempt to wed under a state ERA law, marriage hadn’t been a major demand for the gay and lesbian movement. Visibility was not safe. Though many same-sex couples were in committed life partnerships, the idea of marriage equality seemed not only far-fetched but woefully inadequate in the face of widespread violence and repression. Lesbian mothers, whose children were often taken away when they entered committed partnerships, often preferred to fly under the radar. All over the country, there were laws on the books criminalizing sodomy, cross-dressing, and various forms of queer socializing. People lost their jobs, housing, families, and reputations because of legal, political, and social stigma.  

By the mid-1980s, however, LGBT people were faced with a new and different threat. The AIDS epidemic was ravaging the gay male, sex workers, and trans communities. As lovers, friends, and elders died in droves, at best, the government looked away; at worst, conservatives advocated for quarantining and tattooing HIV+ people. As a result, the ability of unmarried couples to access each other’s healthcare, visit loved ones in the hospital, and share property and finances became not just a wish but an urgent need: it was literally life or death.  

For many survivors of the AIDS epidemic, marriage equality is (and ought to be) seen as an important victory. But these survivors also carry with them a radical knowledge of what is lost when society emphasizes marriage and nuclear family at the expense of social solidarity and community care. AIDS activists fought for the dignity to care for their loved ones and to share and inherit from them, as married couples would. But they also fought for a society in which their complex lives and vibrant kinship networks would be valued and supported on their own terms.  

That didn’t happen. Today, as conservatives use the state to pursue an all-out war on trans people (especially trans children and teens) and severely limit K-12 students’ access to queer language, history, and literature, some liberals continue to pair empty slogans about LGBTQ rights with harmful hedging. How far should these rights go? they ask. What is a fair compromise?  

The New York Times has spent considerable energy championing this troubling middle ground. In February of this year, hundreds of their own contributors and thousands of media workers and Times readers signed a letter urging them to responsibly and accurately cover trans issues and include more trans voices on their staff. They were rebuffed. The Times not only ran an opinion essay by Pamela Paul defending the right to transphobic speech entitled “In Defense of J.K. Rowling,” but also issued a letter warning contributors that the editors “do not welcome, and will not tolerate, participation by Times journalists in protest organized by advocacy groups or attacks on colleagues on social media and other public forums.” Publisher A.G. Sulzberger, in a New Yorker interview, defended the Times’s coverage, claiming that accusations the paper was anti-trans are “just demonstrably untrue.” He also asserted that some trans people have written to the editors “begging us not to stop this reporting.” 

Somehow transgender people have become a carve-out when it comes to human dignity—and increasingly, lesbian, gay, and other sexual minorities have too. Skepticism about a person’s right to exist with dignity is the kind of battle marriage equality, or equality movements period, can never usefully address. Marriage equality may have seemed like a watershed victory when it first became a federal right in 2015, but in the eight years since Obergefell v. Hodges, the rhetoric of “love is love” has done very little to further true justice for queer Americans.

Giving queer people the right to enter institutions designed for cis-straight people is not the same thing as investing in our existence as human beings. Once again, as they did during the AIDS crisis, queer people will have to commit not just to civil rights but to the large-scale structural change that makes those rights permanent and meaningful.  

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What I’m watching:

• “Heartstopper,” the Netflix series about a romance between two boys at an English public school based on the series of the same name by Alice Oseman. Who should watch it? Any adults who want a sweet, well-written, well-acted story where the violence mostly begins and ends on the rugby pitch. This means that if you are a parent of middle or high school kids, you can watch it with them and know you will enjoy it. In addition to its focus on the difficulties of coming out, the show is about bullying, stigma, uncertainty, and the ethics of all romantic encounters. There are sweet kisses and erotic tension but no sex scenes to navigate (at least by Season 1, Episode 6, which is where we are), so any questions about what gay boys and lesbians “do” in bed are left to you to answer in an age-appropriate way. Season 2 just dropped.

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Short takes:

• Jill Filipovic writes a Substack post about girls 14 and younger (one as young as nine) in the Americas who were impregnated by rapists and refused abortions. Countries where a traumatized child can be forced into bearing children (let’s not call it “motherhood,” shall we?) now include the United States. “Most of the time, these stories go untold; the ones we hear about are grains of sand atop a dune of suffering,” Filipovic writes. “By definition, these pregnant children are rape victims. By definition, their health and lives are imperiled: Pregnancy is the leading killer of adolescent girls worldwide.” This post is searing and not for the faint-hearted, but if you want to know how some little girls are affected by total abortion bans, you should read it.” August 21, 2023)

• Journalist and Substacker Nina Burleigh notes that you can go home again, but depending on where home is, you might find it changed by Christian nationalism. “Ottawa County has been taken over by county commissioners who, nostalgically, see commies under every bed like grandpa did,” Burleigh writes about a cherished rural retreat in Michigan whose government has been taken over by the extreme right. “In 2022 a political movement calling itself Ottawa Impact won the county government on a platform stating that `The Democratic Party is currently led by radical progressive Marxists who seek to divide the American people, rapidly bringing our nation to a state of decline which is nearing socialism and communism.’” The story gets more dismal from there. (August 20, 2023) 

• According to analyst Jessica Taylor at The Cook Political Report with Amy Walter, defeating Issue 1 in Ohio (which would have raised the threshold for a referendum to 60%) will boost Democratic fortunes in this now very Red state. It mobilized urban constituencies well beyond expectations as Democrat Sherrod Brown prepares to defend a vulnerable Senate seat in 2024. Republican Secretary of State Frank LaRose was a leading contender for the GOP nomination, but his decision to float Issue 1 calls his political common sense into question. But there’s more: With Issue 1, “lawmakers were asking voters to give up their rights to support a state constitutional amendment by a simple majority,” Taylor writes. “And for most voters, giving up any power at all isn't a convincing argument. Some voters may have simply opposed the measure for that reason alone regardless of abortion, so it's not a perfect correlation either between `No’ voters and being Brown voters next year either.” (August 17, 2023)