In the hours after yesterday’s rulings in Windsor v. United States and Hollingsworth v. Perry, social media may have racked up some of their biggest numbers ever. Every post I put up on Facebook received ten likes or comments every three minute or so, as did the pages of several of my friends.
One prominent theme was how GLBT folk should interpret these rulings, and how they should be understood in light of the week’s earlier decisions in relation to affirmative action (Fisher v. Texas) and the Voting Rights Act (Shelby County v. Holder.) Both of these decisions exemplify the retraction of civil rights accomplishments that targeted women, the poor and people of color. Indeed, many postings by progressive queers and straights expressed disappointment that in the celebrations over overturning key sections of DOMA, litigants and activist groups did not affirm a commitment to racial justice.
I have ben sorting out my responses to this ever since. Celebrations may be in order for marriage equality, but yesterday’s decisions are far from conclusive. Helen Alvare of George Mason Law School at SCOTUS Blog (June 26 2013) argues that the marriage decisions are far less conclusive than they initially appear to be. While 1,000 federal laws will be voided as discriminatory, the Supremes left 2/3 of the United States to be governed by state-level prohibitions. It has opened the door to a range of other lawsuits. For example, a lesbian couple in the military, married legally in the state of New York and transferred to a base in Virginia will find that they have a barrel of new economic rights and benefits — until they set foot off the base.
That’s just for starters.
Second, as a number of observers pointed out, the legal strategy that resulted in yesterday’s decisions relied on asking the federal government to cede power over civil rights to state and local governments. When you add Windsor and Perry to Fisher and Shelby County (for good measure, let’s add in Adoptive Couple v. Baby Girl, in which federal law that prohibits the involuntary removal of Native American children was seen by the majority not to apply) the picture becomes clearer. This is where a court dominated by conservatives has been leading us on all social and political since Bush v. Gore (2000): eviscerating the power of the federal government, and the judiciary, to affirm citizenship rights. Even Antonin Scalia’s typical raving dissent in Windsor relies on this logic: the Supreme Court has no right to demand that state and local jurisdictions give up their homophobia until they are good and ready.
As Nan Hunter, a longtime activist, litigator and Georgetown University legal scholar points out over at Hunter of Justice, activists must attend to the fact that the gay marriage victory occurs in an atmosphere of increasing inequality:
By contrast, for those fighting for a deeper meaning of equality, especially for the most subordinated minorities, the week is anything but bright. Formal equality looks pretty thin if that’s all you have.
Even though the myth that only rich white guys are gay has been repeatedly disproved by Williams Institute data, some part of the LGBT movement will almost certainly peel off when marriage equality finally becomes a 50-state reality. Those demographic studies are true, however, and that means that most of us will still have a bundle of problems that formal equality won’t fix. Ever.
The question we have to ask ourselves is: what kind of action does address these inequalities? I think Hunter gets at something important here, which is that federal legislation and court decisions have played an important role in rectifying injustice, but they cannot be relied upon to do so if we lack the social movements that are most effective in changing minds, creating the political basis for democratic change, and imagining the concrete changes that can occur at the local level.
Most of us aren’t attorneys. Most of us also turn to political action episodically, even if we care about politics all the time. Our activism is also often reactive, or symbolic. It is triggered by something that has already happened — discrimination against a co-worker, death or physical harm stemming from racial profiling, sexism or homophobia, or economic discrimination — rather than the institutional inequalities that caused it. We show up at a demo, we write a blog post, we give a conference paper, we write a check.
So, presuming that people of color and queer folk are two overlapping communities, here would be my initial list of activisms stemming from this week’s decisions.
Taking Shelby County as only one example, it would do all of us some good to look at our own communities and see what kinds of disenfranchisement already exist. Both Democrats and Republicans have historically (and quite recently) manipulated the voting rolls and failed to reform voting practices to enable poor voters, working class and voters of color to actually cast a ballot. This is not a Southern problem: it is endemic to state, county and city machine politics. While the Voting Rights Act has been critical to one phase of seismic change, it has not even come close to making our electoral process inclusive. Instead of real reform – which can occur on the level of the municipality, the county or the state — we rely on time-consuming, get out the vote campaigns that are sometimes sufficient. But often they are not. We will not only have to learn to organize our communities without the Voting Rights Act, it would be a betrayal of the most vulnerable among us to wait for the next law suit to try.
So, for example, instead of fighting voter identification laws targeted at the poor, why do we not create a social movement to help all poor people get government-issued identification for free? Many legal residents of the United States do not have basic, necessary paperwork to which they are entitled, like birth certificates and social security cards, Voting is a crucial civil right, but not having identification endangers a range of civil rights for the most vulnerable among us. Being without identification can result in legal residents being deported, jailed indefinitely until they can be identified, or denied services to which they are entitled. On a daily basis, it means that working people cannot get driver’s licenses, bank accounts, register children for school, get utilities in their own names, travel by rail or air, establish credit…you name it, if you haven’t got identification you can’t do it. This is something that can best be addressed by local activism, because any local government can issue a form of official identification with a photograph on it, using criteria that are creative and expansive.
As for Adoptive Family: has anyone really raised the question of why Baby Girl’s mother needed to give her up for a adoption in the first place, why the adoption was closed, and why she ended up with a middle class white couple in another state? This would raise a host of useful questions about the persistence of Native American poverty, the lack of reproductive health and legal services for indigenous men and women, and the ways in which poor mothers in general are often coerced into giving up newborns to the booming adoption market rather than getting the financial support, education and job training that might allow a mother to keep that baby. These are not just federal questions. They are state questions, and they are questions that properly lie in the realm of Native American law and political economy.
I invite you to contribute your ideas for intersectional activism below. But as a historian, I wonder whether we have gone too far in creating powerful national movements that are too thinly connected to the nuts and bolts of local equality. One aspect of the rights revolution was federal intervention. But another was its local quality. chapters of the NAACP, the welfare rights movement, the National Organization for Women, the Mattachine Society and Daughters of Bilitis began organically at the level of the local: these organizations fused the power, and distinctiveness, of grassroots organizing with resources that national networking produces.
The Supreme Court can make big statements about inequality, and it can intervene in unconstitutional policies and behaviors. What it cannot do is be effective in the daily practices, behaviors and policymaking apparatuses that produce actual, daily inequalities in the lives of real people. We need to take the opportunity presented by this week’s cases to think beyond the Supreme Court, and beyond a false dichotomy of gay rights versus civil rights, to look interrupt the reproduction of racism, sexism, class prejudice, xenophobia and homophobia in all its interlinked forms.