Editor's Note: On June 26, 2015, the Supreme Court ruled in Obergefell v. Hodges that the 14th Amendment guarantees the right to same-sex marriage. The ruling, by a five-to-four decision, overturns all state-level laws against same-sex marriage and extends marriage equality to all 50 states. Writing in our Winter 2015 issue, below, Peter Montgomery explores the future of the gay rights movement in an era of marriage equality.
This article appears in the Winter 2015 issue of The American Prospect magazine. Subscribe here.
In the year and a half since the Supreme Court struck down a key section of the federal Defense of Marriage Act, federal and state courts have been overturning laws against marriage by same-sex couples at a dizzying pace, sometimes more than once in a single day. Giddy activists have joked about the challenge of keeping color-coded marriage equality maps up-to-date. News stories about gay couples marrying in places like Oklahoma, Utah, South Carolina, and Idaho are now so common they hardly seem surprising.
With the widely shared expectation that the Supreme Court will soon return to the issue of marriage and may strike down marriage bans nationwide, LGBT leaders find themselves asking a question that would have seemed improbable just a few years ago: What should be the priorities of the LGBT movement once legal marriage equality has been achieved?
The most likely candidate for the kind of coordinated, national- and state-level strategy that fueled the marriage equality campaign is a push to get all LGBT Americans covered by laws barring discrimination against them in employment, housing, health care, and public accommodations. Brutal persecution of LGBT people around the globe, often with the collusion or encouragement of American anti-gay activists, is another growing concern. Those issues are likely to draw support from across the ideological spectrum of LGBT organizations.
Some movement strategists also want to address the effects of economic inequality and institutionalized prejudice on the lives of LGBT people. Efforts to move those issues to the center of LGBT activism, however, may run up against another current: the well-funded effort to make LGBT equality more palatable to Republicans and other conservatives.
Of course, while marriage equality is a reality in 35 states and Washington, D.C., it is not yet a done deal nationally. Lawyers are still staying up all night writing and filing briefs. Equality advocates are still sparring rhetorically, legally, and politically with anti–marriage-equality religious and political leaders who are fighting to the bitter end. And even if the Supreme Court overturns remaining bans and all 50 states turn blue on marriage equality maps, Navajo equality activist Alray Nelson wants it to be known that people living in more than 500 tribal nations will still lack marriage rights.
Still, with those cautions noted, the end does seem to be in sight, and that has LGBT funders and leaders looking ahead, considering what lessons can be drawn from the marriage equality campaign, how to keep LGBT activists and supporters engaged in the movement, and where to direct the energies and resources that have poured into campaigns for marriage equality. “I believe it’s not about pivoting from marriage,” says Freedom to Marry’s Evan Wolfson. “It’s about harnessing the marriage work and success to getting success on other fronts.”
One important accomplishment of the national conversation about marriage is that it has had a humanizing impact on how many Americans view LGBT people, couples, and families. The marriage movement has been “a powerful vehicle to express the shared humanity of LGBT people,” says Janson Wu, executive director of Gay & Lesbian Advocates & Defenders (GLAD), a Boston-based legal group that has played a key role in both the marriage equality campaign and the broader LGBT equality movement. The resulting advances in overcoming prejudice should support progress on other issues facing LGBT people. “Marriage vocabulary is powerful, connective vocabulary that helps transform people’s understanding,” says Wolfson.
Kevin Jennings, executive director of the Arcus Foundation, agrees that marriage equality campaigns encouraged a humanizing dialogue about LGBT people. The downside, he says, is that marriage has so dominated public conversation that people who aren’t intimately familiar with the LGBT community may think it is the beginning, middle, and end of what the community needs. In reality, he says, “marriage equality will affect a fraction of the LGBT community, and a fraction of a fraction of that movement’s needs.”
The Philosophical and Political Divide
What are those community needs? In October, longtime LGBT strategist Urvashi Vaid received a Spirit of Justice award from GLAD. Vaid ran through a set of issues that are barriers to full-lived equality for many LGBT people, including poverty, racism, misogyny, violence, immigration policies, policing, and detention. While organizations have been working on all those fronts, she said, the LGBT movement lacks sufficient focus on many of these issues, despite the fact that women make up half the LGBT community and people of color a third of it. “The question that confronts the LGBT movement today,” she said, “is whether we are willing to retool our movement to push for the redistribution of economic resources and political power that is needed to change the lived experience of LGBT people in all parts of our very diverse communities.”
Just a couple of weeks later, after Republican victories in the midterm elections, Gregory Angelo, executive director of the Log Cabin Republicans, posed a very different question. “This is really a time of choosing for LGBT advocates on the left,” Angelo told the Washington Blade’s Chris Johnson. “Do you support the left agenda, or do you actually support equal rights for Americans? Those who fall in the latter category are going to be the ones who are going to be com[ing] to the table with Republicans and find[ing] solutions, ways to pass things, like employment protections for LGBT individuals, that also reach consensus among Republicans.”
The philosophical and political divide reflected in these two approaches, sometimes framed as assimilation versus liberation, is as old as the LGBT movement itself. “The tension between the equality frame and the liberation frame has been present since the moment of Stonewall, if not before,” says Andrew Lane, executive director of the Johnson Family Foundation and advisory board chair of the Movement Advancement Project. In recent years, as the movement has focused on gaining access to institutions such as marriage and the military, some progressive advocates have been frustrated about the lack of attention given to less conventional goals.
Doubts about the marriage equality campaign have been somewhat muted by its successes. But some advocates fear that rhetoric used in the marriage campaign could make it harder to ensure that people in less traditional, nonmarital relationships have legal protections. Nancy Polikoff, a professor at American University’s Washington College of Law and author of Beyond (Straight and Gay) Marriage, supports marriage equality but says marriage “doesn’t solve anything for people who aren’t married, people who don’t want to get married, or people who have their lives organized around relationships that don’t resemble marriage.” She worries that some of the campaign rhetoric about the unique nature and importance of marriage could make it harder, once marriage equality is achieved, to assert the need to protect all forms of family.
Wu and Vaid both say the movement can and must do both equality and liberation work, and identity politics and progressive organizing. But time and resources are always limited, and the pre-existing fault lines within the LGBT movement may become more visible once marriage is no longer dominating the conversation.
Will Money Talk?
These fault lines could be exacerbated by another characteristic of the marriage equality movement: the emergence of major conservative funders such as hedge fund billionaire Paul Singer and activists such as former Republican National Committee chair Ken Mehlman, who helped get the Republican votes necessary to pass marriage equality legislation in New York.
Jeff Cook-McCormac, senior adviser to Singer’s American Unity Fund, says the involvement of conservative funders and activists has had “a profoundly positive impact” by changing the perception among Republicans that LGBT equality is only an issue for those aligned with the left. He says that while more than 230 Republican state legislators have stood for the freedom to marry, only a small number have lost their seats. Center-right lawmakers no longer need to see support for LGBT equality as a death knell for their career.
But that’s just one piece of the picture. LGBT journalist Michelangelo Signorile has noted that Singer “backed some of the most anti-gay politicians—and defeated others committed to full LGBT equality—by pouring millions into superPACs and the Republican Governors Association.” Signorile worries that publicity focused on Singer’s support for a handful of pro-equality Republicans may be aimed at making moderate Republicans feel better about voting for the GOP. Meanwhile, he wrote in August, “Singer is undermining LGBT rights—and all progressive causes—by helping opponents of equality win more House races and helping Republicans win control of the Senate.”
Cook-McCormac says the involvement of center-right funders and activists “has fundamentally changed the way the gay rights movement does business.” He means helping achieve bipartisan cooperation on pro-equality legislation. But others worry about the potential that donors could push the movement’s broader agenda to the right. That’s a valid fear, says Get-EQUAL’s Heather Cronk, because money always comes with strings. Urvashi Vaid says of Singer that it is “outrageous to ignore the fact that he is virulently anti-choice and raised millions to oppose the most LGBT-supportive president we have ever had.” She acknowledges that coalition politics is partly about tactical relationships and opportunistic work but is clear that she does not view these conservatives as spokespeople for her or the broader movement.
From Legal to Lived Equality
Paradoxically, many movement leaders are focused on achieving full legal equality while thinking deeply about the limits of legal equality in improving the conditions that many LGBT people face every day. GLAD’s Wu says the movement’s unfinished business is to ensure that progress extends to the most vulnerable, which would include youth, elders, transgender people, people of color, and people with HIV. “Our movement isn’t over until everyone in our movement is protected,” he says.
Disparities between states where LGBT people have won many legal protections and those with few or none have led some movement funders and organizations to focus on “low equality” states such as those in the South. But that doesn’t mean the movement is “done” anywhere, says Kevin Jennings at Arcus. Even in places that are “paradises on paper” with marriage equality and nondiscrimination laws, Jennings points out, LGBT teens are still living on the street. Arcus, he says, has started asking, “Who is least likely to benefit from legal equality?” and has shifted its grantmaking to supporting people of color, young people, and trans people.
In Massachusetts, the first state to achieve marriage equality, the post-marriage agenda for MassEquality has focused on some of these same areas. Executive Director Kara Coredini says the organization has leveraged its activist base and lobbying and electoral presence to advance priorities shared with its partner groups, working successfully for a trans-inclusive nondiscrimination bill, a commission on LGBT aging, and LGBT representatives on the first statewide commission on homeless youth.
The central issue is legal versus lived equality, according to Rebecca Isaacs, executive director of Equality Federation, which provides expertise and support to a network of state-based organizations. In an op-ed last June, Isaacs highlighted the limits of the push for same-sex marriage:
Marriage equality will not keep LGBT young people in their homes and loved by their families. It will not keep them in school and out of the criminal justice system. It will not ensure transgender people access to accurate identity documents or critical healthcare services. It will not make our streets and our communities safe and free from violence. It will not make our military, our prisons, our immigration system, or our healthcare inclusive and just. It will not erase the vulnerability our community feels as we age in a world without an adequate safety net.
Terrance Laney, national public policy chair for Black Youth Project 100, questions the decision to prioritize a push for marriage equality in southern states where HIV is raging among people of color and where state officials rejected the expansion of Medicaid. He says he worries that when the marriage equality fight is over, LGBT people of color will be left “fighting for our lives” without the benefit of a lot of major donors and attention.
LGBT activists concerned with immigrants’ rights are working to broaden support for the idea that immigration is an LGBT issue. Diego Ortiz, communications director for Immigration Equality, says that while marriage equality benefits some people who have been living in exile or separated from their loved ones, LGBT immigrants have other concerns, such as violence in incarceration centers, where trans women are often housed with men or placed in extended isolation. “Asylum saves lives,” says Ortiz. “Sadly, for many people, the road to asylum goes through a detention center.”
Pursuing both legal equality and lived equality requires work on cultural fronts as well as legal and political ones. Changing the law can certainly have a cultural impact—achieving marriage equality in a state often appears to accelerate support for it. But it is still true, in the words of GLAAD President Sarah Kate Ellis, that “you cannot legislate acceptance.” The passage of civil rights legislation 50 years ago has not done away with all the unspoken prejudices and systematic institutional inequities that still limit the lives and opportunities of African Americans. Legislative victories on behalf of women and people with disabilities have not eliminated all the barriers they face. Ellis worries that with recent marriage rulings in conservative states, “hearts and minds are lagging policy,” making it imperative to “close the cultural gap.” That is the kind of work being done via the media and by LGBT activists and organizations working in religious communities with the aim of changing attitudes and even theology.
On November 20, 2014, people around the United States and the world commemorated Transgender Day of Remembrance, holding vigils and services in memory of hundreds of transgender people who have been killed, disproportionately trans women of color. Marriage equality, says transgender writer and public health advocate Willy Wilkinson, has not done as much to humanize transgender and gender nonconforming people. “People are dying in the streets and it has nothing to do with putting a ring on it.” Janson Wu affirms that this is an arena where something more than policy change is needed. It is not sufficient to pass hate crime legislation, he says. Cultural change is needed to deepen understanding and acceptance “so we’re not talking about trans women being murdered but about trans women becoming government officials and CEOs and cops.”
Another example of change needed at both policy and cultural levels involves LGBT youth. A 2012 survey of service providers by the Williams Institute at the UCLA School of Law estimated that 40 percent of the homeless youth served are LGBT. Advocacy organizations are pushing Congress to reauthorize the Runaway and Homeless Youth Act with provisions preventing fund recipients from discriminating against LGBT youth. But Ellis worries that legal victories and celebrity coming-out stories can create a false sense of security among young people, who when coming out may be vulnerable to bullying, violence, or family rejection. The Williams Institute study found that nearly seven in ten LGBT homeless youth experienced rejection by their family. As a September story by Alex Morris in Rolling Stone magazine reported, many of these homeless gay teens have been rejected by religious families. Gay businessman and philanthropist Mitchell Gold, founder of Faith in America, thinks the LGBT movement should be talking more about the consequences of “religious-based bigotry.” The face of the gay-rights movement, he told Rolling Stone, should not be “40-year-old well-moisturized couples,” but “a 15-year-old kid who’s been thrown out of his house and taught that he’s a sinner.”
In reality, there can be no single “face” of the inherently diverse LGBT community. While LGBT voting patterns are more progressive than the public at large, issues that divide the public also divide the LGBT community. For example, after the Human Rights Campaign issued a statement decrying the decision of a grand jury in Ferguson, Missouri, not to indict the white police officer who shot and killed an unarmed African American teenager, HRC’s Facebook page was filled with angry denunciations by gay police officers and others defending the decision and vowing never again to contribute. Caitlin Breedlove, co-director of Southerners On New Ground (SONG), which “envisions a multi-issue southern justice movement that unites us across class, age, race, ability, gender, immigration status, and sexuality,” says it was good to see LGBT groups putting out statements on Ferguson, but that such sentiments need to be backed with more political will to take action against what she calls a “war on people of color.”
A Nondiscrimination Moment?
A push for nondiscrimination laws should receive broad support from across the LGBT community. “After the marriage moment is the nondiscrimination moment,” says Jeff Cook-McCormac of the American Unity Fund, the advocacy organization funded by conservative donors. In December, the Human Rights Campaign released “Beyond Marriage Equality,” a 65-page statement making the case for federal civil rights protections in credit, education, employment, federal funding, housing, jury service, and public accommodations.
There is plenty of work to do. Fewer than half the states have laws protecting LGBT people from discrimination, and many people lose those protections when they move across state lines. No federal law bars discrimination on the basis of sexual orientation, although executive orders protect federal employees and contractors, and the Equal Employment Opportunity Commission has ruled that employment discrimination on the basis of gender identity is prohibited under federal civil rights law as a form of sex discrimination.
The proposed Employment Non-Discrimination Act (ENDA) has long been the vehicle for efforts to put these principles into federal law. But agreement on the specifics has been elusive. In 2007, the Human Rights Campaign angered transgender activists when it supported Senate passage of ENDA even after gender-identity protections were removed to get more votes. And this past year, many LGBT groups and allies such as the American Civil Liberties Union pulled their support from ENDA because the bill included broader religious exemptions than those afforded under federal civil rights law. During the summer, HRC President Chad Griffin expressed continued support for a trans-inclusive ENDA with narrowed religious exemptions but also said it was time for the movement to “dig in” and support a comprehensive LGBT civil rights bill.
Polling data suggest that a campaign focused on anti-discrimination protections should enjoy wide backing. Public support is extremely high—so high in fact, that it almost becomes its own challenge: People have a hard time believing that in more than half the states you can still be fired, evicted, or kicked out of a restaurant for being lesbian, gay, bisexual, or transgender. But activists worry that the support, while broad, it not terribly deep, and could be derailed by opposition charges that protections are not necessary, or by the kind of “bathroom panic” disinformation campaigns waged against efforts to extend protections on the basis of gender identity and gender expression.
Some business groups support anti-discrimination legislation. Marc Solomon, Freedom to Marry’s national campaign director and author of a recently published history of the marriage equality movement, told reporters in November that movement leaders should enlist corporate CEOs to push nondiscrimination legislation. And there’s at least some bipartisan support. In 2013, ENDA passed the Senate in a 64-32 vote with ten Republican senators joining the majority. This year in Missouri, former Senator John Danforth lent his voice to efforts to add sexual orientation and gender identity to the anti-discrimination provisions of the human rights statute; the state senate approved the legislation in 2013, but time ran out on the legislative session. In April, Politico reported that Singer and fellow Republican billionaire Seth Klarman were each making six-figure contributions to an HRC-supported campaign to get ENDA passed in the House.
Still, religious right leaders and their champions in Congress continue to oppose protections for LGBT people against discrimination. The recent midterm elections could block any progress on the issue. But Denis Dison of the Gay & Lesbian Victory Fund says, “I don’t think this was an anti-gay election in any way,” noting that Republicans who won governorships in blue or swing states either were silent on marriage equality or embraced it. He thinks the relative silence is evidence of the fact that many Republicans no longer see electoral advantage in opposing equality. On the other hand, Kara Coredini at MassEquality says the state GOP amended its party platform to reaffirm its support for traditional marriage shortly before the ten-year anniversary of the implementation of the state court decision legalizing same-sex marriage.
In 2012, while covering the Republican National Convention for Alternet, I watched religious right activists write anti-gay views into the party platform. But Jim Kolbe, a former Republican congressman from Arizona who came out in 1996, insisted it would be the last year in which the platform would contain anti-gay language. Given Republicans’ continuing reliance on conservative evangelical turnout operations, I deemed Kolbe’s prediction optimistic, bordering on delusional.
Now, however, there is an organized effort among Republicans to keep anti-gay language out of their 2016 platform. Young Conservatives for the Freedom to Marry has launched a $1 million “Reform the Platform” campaign to replace anti-gay language with a new statement along these lines: “We encourage and welcome a thoughtful conversation among Republicans about the meaning and importance of marriage, and commit our Party to respect for all families and fairness and freedom for all Americans.” The group says 61 percent of conservatives under 30, and 40 percent of all Republicans, support the freedom to marry.
One potential challenge to achieving legal and lived equality comes in the form of religious objections to LGBT equality. Conservative evangelicals and their conservative Catholic allies have made “religious liberty” their rallying cry, with many stating flatly that LGBT equality and religious liberty are incompatible and cannot co-exist. While marriage equality has swept across the country, conservatives have pushed for broad religious exemptions that LGBT activists call “right to discriminate” laws. As part of that campaign, conservatives have tried to make folk heroes out of small-business owners who run afoul of anti-discrimination laws when they refuse to provide services to same-sex couples for a wedding or commitment ceremony.
In 2014, a broad religious liberty bill passed the Arizona legislature, but a massive campaign by LGBT rights organizations, with support from the Arizona business community and some Republican leaders, convinced Governor Jan Brewer to veto the bill. A broad coalition of civil rights, religious, law enforcement, and child welfare groups successfully urged voters in North Dakota to defeat a ballot measure to put broad religious exemption language into the state constitution in 2012. But in recent years, Kentucky and Mississippi did put new religious liberty language on the books. In December, Michigan Republicans rushed a “religious freedom” bill through the state House in order to “balance” a proposed bill to ban discrimination on the basis of sexual orientation.
Many proposed state laws are based on language in the federal Religious Freedom Restoration Act (RFRA), which passed with overwhelming bipartisan support in 1993. The Supreme Court later ruled that RFRA applies only to the federal government and not the states. RFRA requires that if the government substantially burdens an individual’s exercise of religion, the government must show that it is pursuing a compelling interest in the least restrictive way. But the ideologically diverse coalition that backed RFRA disintegrated when conservatives began using such laws, not as a shield to protect individuals’ exercise of religion, but as a sword against the rights of women, LGBT people, and others.
The Supreme Court’s ruling in the Hobby Lobby case last June, exempting closely held corporations from the requirement to provide insurance coverage for contraception based on the owners’ religious objections, is cause for concern to supporters of LGBT equality. The 5-4 majority in the case held for the first time that for-profit corporations can make religious liberty claims under RFRA, and dramatically reinterpreted the law’s core balancing act. Under Hobby Lobby, business owners have only to claim that their religious beliefs are offended by a legal requirement, a radically different standard from proving that the requirement imposes a substantial burden on their exercise of religion. If RFRA is used to challenge a future federal nondiscrimination law, the government could still argue that it has a compelling interest in ending anti-LGBT discrimination, but it is not clear how the Court would rule.
After the Republican victories in 2014, a wave of “religious liberty” bills will likely be introduced at the state and possibly federal level. Brian Brown of the National Organization for Marriage said this past fall that the group would push the new Congress for federal legislation to “protect marriage and religious liberty.”
Finding effective ways to challenge conservative religious liberty arguments will be important to the LGBT movement’s efforts on both legal and lived equality. Otherwise, says the Victory Fund’s Dison, religious liberty arguments could gain traction, in part because most people do not understand that business owners have been subject to laws against discrimination in public accommodation for years, and are seeking to undermine those laws now that they are being extended to LGBT people.
Who gets to set, or claim, an agenda for a diverse, many-layered movement is itself a complicated question. Grassroots activists sometimes complain about the influence of large and well-funded national organizations. Get-EQUAL’s Heather Cronk says a full equality agenda “has to be shaped by and deeply informed by the lived experiences of folks in Texas and Mississippi and Montana, not just by the lived experiences of folks in Washington, D.C.” There are some efforts to get broad grassroots input into the future of the movement post–marriage equality. This past fall, more than 60 organizations joined the Arcus Foundation to sponsor My 2024, a project in which LGBT people were asked to share their dreams about what their lives would look like ten years from now. Kevin Jennings at Arcus called it an effort to crowd-source the future of the movement. “We don’t think the future of our movement should be decided by a group of rich people in a conference room in New York City.” The project’s website asks, “Is there a future for the LGBTQ movement?” and answers, “No, there are thousands of futures. And one of them is yours.”
The multifaceted LGBT community includes people of all religions, economic classes, racial and ethnic backgrounds, and political persuasions. Divisions are inevitable. But Reverend Darlene Nipper, deputy executive director of the National LGBTQ Task Force, says that a push for nondiscrimination laws could appeal to a broadly shared ideal. Fighting for equal treatment under the law reflects a commitment to the promise of America—that everyone be given “a fair chance and a fair shake to be fully who they are.” If that’s right, nationwide nondiscrimination protections could be the next big thing for the LGBT movement.