Next Steps for Marriage Equality: Gay Migration?
After the Civil War, blacks in the Reconstructionist South left their former plantations and migrated to the more tolerate North and West. This mass migration is known historically as The Great Migration, as 6 million African-Americans moved out of the rural South (Historians further delineate different phases of this migration over the next hundred years).
With the elimination of the prohibition of Federal recognition through the Windsor ruling that struck down sections of DOMA, and with the future of gay rights firmly in the hands of State legislatures, I believe it will be another generation before SCOTUS entertains another broad-based attack on universal marriage equality. In Loving v. Virginia (1967), it wasn't until the plurality of States banning miscegenation did SCOTUS decided to rule on the issue. At the time of Loving, only 16 states still enforced bans on interracial marriage (34 states had either repealed the law or had no laws in their statues). It wasn't until the majority of states acted did SCOTUS decide to take the case, ruling marriage was a fundamental right. The ban on interracial marriage was confined to only 16 Southern states, and was viewed in 1967 as remnants of Southern bigotry and intolerance. The decision at the time was uncontroversial (at least in those states already allowing interracial marriage), and there were very few attempts to reverse the Court’s decision.
Gay marriage is still very controversial, and to expect a Loving-like decision anytime soon just ignores Court history. Any challenge to States’ bans on marriage equality, if even granted Certiorari, will be very narrowly adjudicated to the issue and the State. Certainly we will try to garner a broader ruling, but until the majority of States allow marriage equality, the Court will certainly avoid a Roe v. Wade type of decision. Justice Ginsberg even admitted that Roe was decided too early- leaving us with 50 years of challenge and controversy. We can infer from her comments (rare for a Justice to comment on cases, with the exception of that motor mouth Scalia) that they learned a lesson from Roe and will wait for the political and social climate to be conducive to a broader ruling.
Certainly there are/will be challenges to State laws than ban marriage equality. And that is where the next decade of work needs to be focused. But while the legal fight will continue, it is important that gay men and women continue to come out to their friends, neighbors, family, and co-workers. It is much more difficult to vote against rights for someone you know instead of an amorphous idea. If someone today states they don’t know any gay people, they are either in denial or woefully blind to the world around them. Every man, woman, or child knows someone who is gay, and probably, that someone is a family member (extended family perhaps).
Back to the Great Migration: We have, since the 1970’s seen a version of a Gay Migration, as young kids left the farms of Kansas and other backward states, and move to urban areas, most notably to the North East or to California, or other cities that afford greater tolerance in law and in practice. With federal recognition of our marriages, it is even more compelling to move to states that afford marriage equality. Young couples who fall in love have little reason to stay in repressive states. They can and will migrate to one of 13 states that will recognize their marriage, and who value their contribution to society.
When you look at the map of the USA in 1967 where interracial marriage was still banned, it is striking similar of which states ban marriage equality today (ALL of the South, and most of the mid-West). There are 10 states where activists believe we have a chance of legislatively repealing those bans. If we were 100% successful, that would bring the count of states to marriage equality to 23 (albeit, representing the majority of the population), far short of the ‘magic’ number of 34. Those next 11 states will, in my opinion, change only when the current generation grows too old to care, and when the generation being born today eventually gains the right to vote. I hold absolutely no hope that any of the South will change without a SCOTUS ruling: the same states that banned interracial marriages until a SCOTUS decision.
