A Year After Windsor

On the morning of June 26, 2013, the U.S. Supreme Court effectively outlawed federal discrimination against same-sex married couples with its decision in United States v. Windsor. The decision was the culmination of a years-long, brilliantly planned and executed strategy by the gay movement’s legal organizations. It was a great day for the movement to secure equality under the law for gay and lesbian Americans. But one year later, the United States is still a very unequal place for gay and lesbian people, and it would be a grave mistake to think that our fight for equality is over.

Let’s start with the good news this year delivered. The Windsor decision was historic in that it eviscerated a longstanding law (the Defense of Marriage Act, or DOMA) that made it official U.S. policy to discriminate against gay and lesbian married couples. As a result of the Court’s decision, the federal government has extended to same-sex married couples dozens of rights and benefits that are taken for granted by opposite-sex married couples, from the ability to sponsor a spouse for immigration to the ability to take job-protected leave from work to care for a sick spouse. More work needs to be done, but we’re well on our way to ending the U.S. government’s discrimination against married gay and lesbian couples.

In addition, Windsor has prompted a flood of litigation around the country aimed at striking down state bans on same-sex marriage. To date, 70 pro-marriage cases are moving forward in 31 states and Puerto Rico. As a result, every single state where gay and lesbian couples are not able to marry is facing a lawsuit. And, among cases decided to date, marriage equality has won a clean judicial sweep. In all, 13 different federal district court judges, including three Republicans, have ruled in favor of marriage equality, with none going the other way. The big question now is what the Supreme Court will do when it takes up its next marriage case either next year or in 2016.

But the good news of the past year has been accompanied by a number of disturbing developments. One is the fact that it is still perfectly legal in the majority of U.S. states to fire people who are lesbian, gay, bisexual or transgender (LGBT) or to deny them housing or a loan, simply because they are LGBT.

This affront to basic decency stands in stark contrast to progress on the marriage equality front. In 2008, there were only two marriage equality states; today there are 20. In 2008, there were 21 states with civil rights laws protecting gay and lesbian people; that number hasn’t changed. While marriage keeps tallying wins in the courts, the country has been at a standstill in securing statewide nondiscrimination protections for six years, in spite of overwhelming public support.

The federal government has not done much better for LGBT Americans than the majority of states when it come to granting them the same nondiscrimination protections that it grants to others based on race, sex, religion, national origin and disability. A federal bill that would provide such protections in employment, the Employment Non-Discrimination Act (ENDA), has been stalled for 20 years. And, even as it languished over the last two decades, ENDA has been watered down and includes a provision that would allow religious institutions such as schools and hospitals to freely discriminate against LGBT people.

Among the other signs of how far we still have to go in this country, I have to mention “the kiss.” I am referring to the histrionic reaction when football player Michael Sam, after learning of his selection in the NFL draft, turned to his partner and kissed him. A kiss ought to be just a kiss, of course, but this one touched a national nerve. Even ardent supporters of equality expressed their discomfort, while those on the other side went off the deep end. These viscera-based reactions can drive discrimination, and we can’t get to true equality without tackling them head on.

So, one year after Windsor, let’s celebrate the tsunami of positive change we’ve seen. At the same time, however, let’s not lose sight of the fact that the finish line is still a long way off, and that times remain especially challenging for those in the LGBT community who are not privileged by race, wealth and geography.

Hopefully in the next year we can make more progress—and perhaps get closer to the point where we will once and for all kiss anti-gay discrimination goodbye.