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SCOTUS Is On the Verge of a "Defeat for Humanity", Thank Goodness

Lessons from Europe and history help show the impact of a United States Supreme Court ruling allowing gay marriage.

The Supreme Court of the United States (SCOTUS) is ruling on the issue of gay marriage this month. No big surprise there; opponents and advocates always knew that the nine justices would have the last word. Reports on the questioning of the justices also revealed no surprises. Those whom one would expect to support gay marriage rights seem to do so, with Justice Ginsberg stopping just short of giving the plaintiffs two snaps in a rainbow formation, while other justices stick with the more traditional states’ rights issue, which for the matter of gay marriage is legal speak for “Eeew, gross. Men getting married.”

For the uninformed, the case, Obergefell v. Hodges, is the consolidation of separate cases from Ohio, Tennessee, Michigan, and Kentucky, and the court is set to decide two issues: whether states should be required to allow same-sex couples to marry and whether a state must recognize same-sex marriages performed in other states. The two and a half hour oral arguments are presented in a 32-minute highlight reel on the Supreme Court of the United States Blog.

If the previous Windsor ruling is any indication, the court will confirm marriage as a fundamental right of gay and lesbian individuals. Surely, they are wise enough to know that we're watching closely. However, if this court doesn’t confirm this right, another set of justices down the road, will. (Something to keep in mind if you are a voting US citizen, as many of the current justices should be retiring soon.) Some way or another, gay marriage will be legal in throughout United States.

It’s legal in Ireland now, and the Irish people didn’t have to rely on the court systems to make it happen. The government just asked the people, and the people resoundingly said yes. Sure, the Vatican’s Secretary of State, Cardinal Pietro Parolin, called it “not just a defeat for Christian principles, but … a defeat for humanity,” but 62 percent of Irish voters disagreed. If a traditionally Catholic country like Ireland can approve of gay marriage, then one could surmise that a proposed Constitutional amendment in the United States to define legal marriage as strictly a union between one man and one woman, doesn’t stand much of a chance of being ratified in the 38 out of 50 states needed for approval.

The importance of the vote in Ireland is that it is the first nation to approve gay marriage by popular vote. In the other 18 countries where gay marriage is legal, either the courts or the legislature made the decision. (The 19 countries where gay marriage is legal are: Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, France, Brazil, Uruguay, New Zealand, Britain, Luxembourg, Finland and Ireland.)

The significance of a ruling allowing gay marriage in the US isn't just that it will allow millions of lesbian, gay, and bisexual couples the financial and emotional protections that come with marriage, but that it will have long-ranging impact in other areas, as well. In essence, such a decision formally declares that LGB people have the same rights as heterosexuals; it would be difficult for a state or municipality to argue that discrimination against lesbians, gays, or bisexuals is permissible in housing or employment after the highest court in the land has stated that these same groups have a Constitutional right to marry.

This isn't just conjecture, though. One need only look at history for validation of this premise. The social impact of Brown v. the Board of Education wasn't just that it equalized the playing field in education (to some degree, anyway) by outlawing segregation, but that it opened the door for a myriad of other changes. As historian Juan Williams noted in his essay, "BROWN V. BOARD: An American Legacy", published on the website Teaching Tolerance, "When you look at Brown you are looking at a moment so powerful it is the equivalent of the Big Bang in our solar system. It led to the Civil Rights Act of 1964 and the Voting Rights Act of 1965. It led to sit-ins and bus rides and freedom marches. And even today, as we argue about affirmative action in colleges and graduate schools, the power of Brown continues to stir the nation."

Brown v. the Board of Education did not have an immediate impact on attitudes, understandably, as no court decision is likely to alter one's perception of another demographic group. The Brown ruling didn't cause anyone to suddenly declare, "I've been all wrong about Negroes" any more than the current case before the Supreme Court will elicit a response of "I've been all wrong about queers." In fact, in both situations, the likely effect is just the opposite; a digging in and clinging to perceptions that feel threatened. Nonetheless, the integration of a disenfranchised group into the more socially accepted "norm" does change attitudes by allowing those with prejudices to realize that perhaps they have, in fact, been wrong.

One could also assume that larger changes will ensue, given the results of a new study of the European Court of Human Rights (ECtHR) and the impact its rulings on gay and lesbian issues have had. The study, entitled "International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe" and published in the January 2014 issue of International Organization revealed that favorable rulings on LGBT rights had far-reaching effects. Specifically, the authors noted "In particular, ECtHR judgments increase the likelihood that all European nations—even countries whose laws and policies the court has not explicitly found to violate the European Convention—will adopt pro-LGBT reforms. The effect is strongest in countries where public support for homosexuals is lowest. Perhaps our most unexpected finding is that the erga omnes effect of ECtHR judgments is stronger in countries where public support for LGBT rights is relatively low." (Erga omnes rights are those rights owed by the state to all citizens, as opposed to contractual rights, which are owed to only those who have entered into the contract in question.)

The authors of the study, Laurence R. Helfer and Erik Voeten, don't just rely on personal observation or conjecture to come to this conclusion; they use statistical analysis to establish a correlation between ECtHR rulings and changes in individual nations of Europe. Through this analysis, they are able to show a link on trans issues, decriminalization of homosexuality, age of consent policies, discrimination in the military, and even public acceptance of homosexuality. The last of these is particularly important to note: favorable court rulings on LGBT matters led to a more favorable attitude toward LGBT people by the general public over the course of time.

Further, a 2013 article published in the Journal of Law and Society argues that the ECtHR has an impact even outside of Europe, offering hope to LGBT people of Africa. Author Paul Johnson is a bit more critical of the European Court, noting how long it took the court to begin issuing rulings favorable to the LGBT population, while also suggesting that their more recent favorable rulings provide a precedent for the African Commission on Human and People's Rights to follow. Johnson is realistic in noting that homophobia is far more rampant in Africa, and thus, the obstacles faced by African LGBT citizens are significantly greater than those faced by their European counterparts, especially in light of anti-gay laws such as those passed in Uganda. Nonetheless, the article concludes that "The development of gay and lesbian rights under the ECHR, however partial, problematic, and incomplete, should offer hope to those enduring sexual orientation discrimination in African states where the light of the ACHPR may shine very dimly indeed."

The implications of these two articles for the United States are fairly clear. Should the Supreme Court rule favorably towards gays and lesbians on the issue of marriage, as well as other ruling favorably on other LGBT issues, it will give courts in even the more homophobic states in the country the impetus to follow suit. The ripple effect of this will reach out to state legislatures, corporate policies, and city municipalities, as well as the public at large. There is little doubt that a favorable ruling on gay marriage will serve as a battle cry for those who are opposed to LGBT rights, and one could start a poll on how many prognosticators will appear on either FOX news or The 700 Club railing about the end of times and the necessity of a Constitutional amendment preventing this 'perversion sanctioned by activist judges'. However, the studies previously mentioned offer hope that such cries will eventually fade.

In episode of the TV show Glee titled "What the World Needs Now", the character Brittany tells her girlfriend's homophobic grandmother, "You know The New York Times said half the increase in support of gay marriage is due to generational turn-over. That’s what smart people call crazy uptight bitches dying. You guys lost, okay? And honestly the rest of us are just going about our business being normal and waiting for you to not be around, not because you can stop us from getting married, but just because you’re kinda annoying." With a little help from the Supreme Court, gays and lesbians might not have to wait for generational turn-over to get increased support for not just gay marriage but a host of LGBT rights.

Either way, you homophobes lost. Okay?

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