IF HISTORY IS ANY GUIDE: THE HARD ROAD AHEAD FOR SAME-SEX MARRIAGE
University of Nebraska at Omaha
June 28, 2015
The Supreme Court on Friday June 26th established a constitutional right to same-sex marriage. The 5-4 decision in Obergefell v. Hudson was a historic victory in the long struggle for the rights of LGBT people.
Everyone should celebrate this great victory, but if history is any guide, a challenging struggle remains.
The best evidence for this is the history of the civil rights movement following the equally historic Brown v. Board of Education decision on May 17, 1954, declaring racially segregated schools unconstitutional.
Segregationists denounced the decision and vowed to fight back –and fight they did, for many long and bitter years. In May 1956 about 100 southern members of Congress signed the Southern Manifesto, pledging resistance to Brown by all “lawful” means. (Interestingly, three southern Senators did not sign it: Al Gore, Sr., Estes Kefauver, both of Tennessee, and Lyndon Johnson of Texas.)
They announced a policy of “massive resistance,” and resist they did –in the courts, in the legislatures, and in the streets. We can expect the same resistance to the Supreme Court’s decision on same-sex marriage.
On September 23, 1957, famously and shamefully, a howling segregationist mob prevented nine African-American students from integrating Central High School in Little Rock, Arkansas. President Eisenhower mobilized federal troops who, with bayonets affixed to their rifles, allowed the “Little Rock Nine” to enter Central High School on September 25th.
We can anticipate similar grass-roots opposition to same-sex marriages. It is almost certain that some local officials will refuse to issue marriage licenses claiming it violates their free exercise of religion. The authority of local officials to defy established law, on this and other grounds, will have to be fought across the country. It will be enormously hurtful to those denied their rightful marriage licenses, even if only temporarily. Ultimately, we will prevail, just as the “Little Rock Nine” did, but it will be a struggle.
In the Little Rock case, the Supreme Court settled the issue of local officials defying court decisions in the 1958 landmark case of Cooper v. Aaron, which held that decisions of the federal courts are the law of the land, and that “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”.
Some states may enact laws designed to obstruct Obergefelter. In the 1950s, Alabama fought back against Brown by passing a law directed against the NAACP. The law required private organizations to disclose their membership lists, and the clear purpose was to expose Alabama NAACP members to harassment, job loss, and even possible death. The Supreme Court invalidated the law in NAACP v. Alabama (1958), in a decision that established the constitutional freedom of association that we enjoy today.
It is very doubtful that a religious exemption for public officials will ever prevail, but the fight over that claim will be long, will involve a sustained effort, and will cause much pain among people whose lawful rights will be delayed. Religious institutions certainly have a constitutional right to their Free Exercise of Religion and guaranteed by the First Amendment. But secular government officials, in the performance of their secular duties, have no such right.
Southern segregationists fought Brown v. Board of Education in many ways, including by Klan violence. We should expect a similar determined and multi-pronged battle against the Supreme Court’s ruling in Obergefell v. Hudson. History is truly on our side, but we need to read the lessons of history, and muster the strength, determination and optimism to meet the coming struggle.