U.S. v. Windsor Must Be This Generation’s Brown v. Board of Education, Not Its Roe v. Wade
By John Culhane
Recent judicial decisions have made one thing very clear: Gay and lesbian couples will soon be able to marry in all 50 states. Even Maggie Gallagher, one of the staunchest opponents of marriage equality, has admitted defeat—sort of. As she’s said, the only remaining question is whether the Supreme Court’s 2013 decision in United States v. Windsor will be this generation’s Brown v. Board of Education or its Roe v. Wade. In other words, will the ruling come to be broadly accepted as an affirmation of basic equality and fairness (Brown), or will it become a flashpoint for serious and sustained pushback (Roe)?
A recent spate of anti-gay bills in red states (including Kansas, Idaho, Mississippi, and—most famously—Arizona), which use the mantle of religious freedom to counter the march toward equality, has planted a flag firmly in the soil of Roe v. Wade. If passed, these laws would have undermined the promise of Windsor by allowing a wide range of folks to opt out of having anything to do with gay and lesbian unions simply by claiming that forcing them to be involved would run counter to their religious beliefs.
These measures are a response to an equality that hasn’t even arrived yet, because none of these states allow same-sex marriages. The outcry over the sheer breadth of some of the bills—and their evident mean-spiritedness—led to their defeat. But only for now. In short order, proponents will resume waving the religious liberty banner, with measures that can be expected to look very much like the Arizona bill. Some will pass, and the battle over LGBTQ dignity and equality—and not just in the context of marriage—will continue to rage.
The marriage debate can blind us to how far the LGBTQ community is from equality in other areas of law. The proposed law in Kansas, and the reaction to it, is instructive in this regard. The bill was so broadly worded that its provisions would have gone way beyond gay marriage and effectively permitted any kind of discrimination against gay men and lesbians in both the public and private sectors. Consider this example: A gay couple goes into a diner in Topeka to order a sandwich to go. But they’re refused service, just because they’re gay. Would the proposed law have permitted that kind of rank discrimination?
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