Gay, Black, Married and Still Unequal

The Supreme Court's contradictory rulings on voting rights and gay marriage prove there's still work to do.

Generic image (Thinkstock)
Generic image (Thinkstock)

(The Root) — America has become a nation in which gay black men and women can serve openly in the U.S. military, marry each other and have their bond recognized by the federal government. But ironically, those same gay black people may not be able to vote.

Last week the U.S. Supreme Court made two seemingly incongruent decisions. First, the conservative majority gutted the Voting Rights Act — invalidating Section 4, which provided the formula for voting districts subject to preclearance and federal oversight for any changes made to voting laws in states with a history of systematic voting discrimination.

Second, in a 5-4 decision in which the liberal majority was joined by Justice Anthony Kennedy, the court declared the Defense of Marriage Act unconstitutional — thereby affirming the right of gay couples to be equally recognized by the federal government. This means that gay couples in the 13 states (and District of Columbia) that allow same-sex marriage will be eligible to receive Social Security benefits, estate tax breaks and health care and immigration services that they were previously denied.

The DOMA decision was rightly celebrated as a watershed moment in the struggle for gay rights and marriage equality. Liberals derided the voting-rights ruling as a surreptitious move by “activist” right-wing judges to legislate from the bench and turn back the clock of racial justice and equal access to the polls.

There is an undeniable disconnect between the expansion of democratic freedoms for gays and lesbians and the contraction of the most democratic ideal of all: the right to vote. How can the court champion a citizen’s right to love while acquiescing in that citizen’s disenfranchisement at the ballot box?

The voting-rights decision rested on the flawed premise that so much progress had been made in the last 40 years that fewer safeguards were necessary today. The DOMA decision allows for a certain kind of freedom to flourish in one state but also protects discrimination in others. The logic and reasoning of the court’s decisions, therefore, aren’t that different at all.

The conventional wisdom is that the DOMA ruling opens the door to a future challenge that strikes down discriminatory laws in the 37 states that currently ban marriage between same-sex partners. Gay-rights activists look forward to a Supreme Court ruling that fully outlaws discrimination on the basis of sexual orientation, in the same way that Loving v. Virginia invalidated miscegenation laws in every state and Brown v. Board declared the principle of “separate but equal” unconstitutional.

This legal strategy was actually perfected by African-American civil rights leaders more than half a century ago and executed by great minds like Charles Hamilton Houston, dean of Howard University Law School, and Thurgood Marshall, who went on to become the first black Supreme Court justice. In time, organizations committed to equality for gay Americans plan to force federal courts to rule on the fundamental constitutional questions of due process and equal protection. But in the meantime, the status quo remains both separate and unequal.

Shin Inouye, President Obama’s White House director of specialty media, focuses on lesbian, gay, bisexual and transgender issues and spoke exclusively to The Root about the overturn of DOMA. “President Obama was delighted by the court’s decision and immediately directed members of his Cabinet to ensure directives were put in place to extend federal benefits to gay and lesbian couples,” he said.

Inouye underscored Obama’s response from last week, in which the president said, “The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts: When all Americans are treated as equal, no matter who they are or whom they love, we are all more free.”