One of the long standing debates in the gay civil rights movement – like all civil rights movements – has been a question of priorities. What’s more important: marriage equality or employment non-discrimination? Military service or hate crime laws? And the answers to those questions are usually complex, dependent on circumstances, events, opportunities and political philosophies. My own position was a pretty libertarian (or constitutional conservative) one from the get-go: it was far worse in principle and practice, I argued, for your own government to be discriminating against you than your fellow citizens in private enterprise. Only when the government is brought to heel should other actors even be looked at. In Virtually Normal, I even tried to lay out a strategy that would only target government discrimination – and then see if more general discrimination withered without government action.
I was – am – a lonely voice in the gay community. Back in the 1980s, the consensus was first that we should push for a broad civil rights act along the lines of African-Americans; and then, as that seemed like a pipe-dream, the strategy was to single out the one provision that commanded the most support – curtailing employment discrimination. Marriage and military service were seen as far too quixotic to be pursued with any vigor for the foreseeable future.
The argument that Evan Wolfson and I marshaled was that the movement was missing something important. My view was that the campaign for marriage and military service would more powerfully redefine the movement on the lines of love and service, as opposed to merely sex and victimhood. I thought the debate itself would reveal who gay people really were beyond the defensive stereotypes and easy dismissals. And I thought this would lead to a shift in collective consciousness, even if we fought these battles and lost, that would help us across the board.
A quarter century later and there is still no federal employment non-discrimination law, but we have openly gay military service and now half the country’s gays living in states with access to civil marriage – including federal recognition. But more to the point, the legal and constitutional arguments about marriage have ineluctably changed core premises about sexual orientation in our collective consciousness – and made the case for basic legal and human equality for gay people far more robust.
And so it does not surprise me to see, in a fascinating case about jury selection just decided (pdf), that the Windsor case is already elevating the legal status of homosexuals far beyond marriage equality itself. Somehow, this has flown below the radar this week, but it could be the biggest breakthrough of the year.
A three-judge panel of the 9th Circuit found that Abbott Laboratories improperly excluded a gay man from serving on the jury in a trial of GlaxoSmithKline’s claims that Abbott improperly jacked up the price of certain HIV medications. In an opinion written by Judge Stephen Reinhardt, the appeals court held that under the Supreme Court’s ruling in Batson v. Kentucky, jurors may not be struck for discriminatory reasons – and that under Windsor, claims of discrimination against gays and lesbians must receive the same heightened scrutiny as those against other protected minorities. That might sound technical, but if the panel’s decision is upheld, it will be extremely difficult for any law in the 9th Circuit’s jurisdiction that discriminates against gays and lesbians – including same-sex marriage restrictions – to survive an equal rights challenge.
“We now have a holding in clear terms that any law that treats gay people differently is subject to heightened scrutiny,” said Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, who won the Windsor case at the Supreme Court. “That’s Game Over…. If Windsor was the Battle of Normandy, this decision is the liberation of Paris.”
The dissent in the case echoes Robbie’s assessment. Frankel:
If you want to know just how monumental a gay-rights ruling the 9th U.S. Circuit Court of Appeals issued Tuesday, just two days short of Windsor’s one-year anniversary, take a look at the dissent written by Judge Diarmuid O’Scannlain and joined by Judges Jay Bybee and Carlos Bea. O’Scannlain posits that his colleagues’ decision in the case, GlaxoSmithKline v. Abbott Laboratories, “precludes the survival under the federal Constitution of long-standing laws treating marriage as the conjugal union between a man and a woman.” But it’s even more drastic than that, according to the dissent: The appellate decision has changed the standard for evaluating all laws targeting gays and lesbians, the dissent said, “with far-reaching — and mischievous — consequences.”
If the 9th Circuit dissenters turn out to be as good at fortune-telling as Scalia, states in the Western swath of this country — California, Oregon, Washington, Montana, Idaho, Nevada, Arizona, Hawaii and Alaska — won’t be able to curtail equal rights based on sexual orientation, even if the states think they have a rational basis for doing so. That’s a much farther-reaching holding even than the 10th Circuit’s decision Wednesday that Utah’s ban on same-sex marriage is unconstitutional — and for gay rights proponents, it’s quite an anniversary present.
It sure is. Heightened scrutiny for gays as a class is indeed game over for gay equality. And if it sticks, we will have the crazy, quixotic, impossible dream of marriage equality to thank for it.
Happy Pride, y’all!
(Photo: Same-sex marriage supporters wave a rainbow flag in front of the US Supreme Court on March 26, 2013 in Washington, DC. By Jewel Samad/AFP/Getty Images. Edie Windsor and Robbie Kaplan on the day Windsor was decided. By Getty Images.)