Five Years Later, How Obergefell Paved the Way for Bostock and the DACA Decision

Five Years Later, How Obergefell Paved the Way for Bostock and the DACA Decision

Originally published by Slate

Friday marks the fifth anniversary of Obergefell v. Hodges, the historic Supreme Court decision affirming the freedom to marry for same-sex couples nationwide. When the Supreme Court issued a pair of rulings last week protecting the rights of lesbian, gay, bisexual, and transgender workers, and at least temporarily safeguarding protections for the young immigrants known as Dreamers, the timing was particularly fitting and proper for new milestones on the long moral arc toward justice.

These movement victories—and the ongoing racial justice protests and legislative pushes toward a needed sea change in law—have much in common. Their successes, and the challenges still ahead, offer important lessons on how to achieve change and win battles for public opinion as well as in the courts.

For one thing, none of the victories were gifts from above or came out of nowhere.

It was the Dreamers who originally pushed the Obama administration to implement the Deferred Action for Childhood Arrivals program, which offers a temporary reprieve from deportation for immigrants who came to the United States as children and have known this country as their own for much of their lives. In fighting Trump’s efforts to rescind DACA, the Dreamers have inspired empathy and helped drive a different narrative about immigrants. Like gay and trans people who came out and shared their stories to move public opinion in the lead-up to Obergefell, these Dreamers created a political dynamic that reached all the way to the court. This is just what the National Immigration Law Center and other organizations intended when they joined these young leaders to incubate the effective United We Dream campaign.

In the latest LGBTQ win, the Supreme Court held 6–3 that the prohibition on sex discrimination in employment in Title VII of the Civil Rights Act of 1964 encompasses sexual orientation and gender identity discrimination. The legal logic of the result was straightforward: You can’t spell “sexual orientation” without “sex”; when a transgender worker is told, “As a man fit, as a woman fired,” it’s clearly because of sex.

But legal success turns not just on text or even good lawyering; it requires helping the decision-maker, the lawmaker, and the justice see how a promise in the law applies to people previously excluded. As the judge said in the Utah marriage equality case: “It’s not the Constitution that has changed, it’s the knowledge of what it means to be lesbian or gay.” Add the changing public conversation about transgender people, and you have momentum that enabled last week’s victory in Bostock v. Clayton County.

In his book, Engines of Liberty, ACLU legal director David Cole—who helped successfully argue Bostock—illustrates the importance of these broader campaigns well. He writes: “Look behind any significant judicial development of constitutional law [or policy enactment], and you will nearly always find sustained advocacy by multiple groups of citizens, usually over many years and in a wide array of venues … politically engaged citizens united by their devotion to a particular constitutional vision.”

A related lesson is that change takes time and no one advance, however big, fixes everything.

Building blocks lead to breakthroughs, which in turn become building blocks to the next advance, and the next. Neither the Title VII win nor today’s cross-racial surge for challenging systemic racism would have happened without the building block of the Civil Rights Act. That political achievement, in turn, took decades and decades of struggle on stony ground, in the courts and corridors of power and commerce, and in the schools and on the streets.

While neither the marriage nor employment win resolved every LGBTQ need, any more than the Civil Rights Act of 1964 cured all racism and sexism, the marriage conversation brought gay and trans people here and abroad new visibility, new allies, new power, and new acceptance for the cause of equality and in people’s lives. The momentum from the marriage work continues to shape the public climate and helped lead to the Title VII victory. Wins are, indeed, the gifts that keep on giving.

Outrages like the killing of George Floyd, Breonna Taylor, Rayshard Brooks, and too many others, including trans people of color, meanwhile, have triggered an extraordinary public outpouring in the past few weeks. Activists such as Black Lives Matter, Color of Change, the NAACP-LDF, and their many allies, have so far successfully leveraged that visibility and urgency toward calls for change.

In the freedom to marry campaign, too, changing public opinion—and then harnessing it—was a core element of the strategy and the success.

In 1996, only 27 percent of Americans supported the freedom to marry for same-sex couples. By 2015, decades of activism, visibility, and engagement had grown that to a 63 percent majority. Gallup confirmed this month that support has continued to grow and broaden. Today at least two-thirds of all Americans are in favor of marriage equality, including 83 percent of Democrats, 71 percent of independents, and even a 49 percent plurality of Republicans. “[Americans’] changing views on [gay people’s freedom to marry] are one of the most notable shifts in public opinion … measured in recent decades,” Gallup concluded. (Happily, recent polls suggest that at last a similar dramatic shift may also be underway calling out racism in policing and society, and countenancing systemic change.)

Still, while vital, public sentiment and protest are not enough. Political participation, policy work, and persistent organizing and conversations too are required to empower and push the decision-makers who choose the officials and judges and craft policies. Today’s waves of activism—from #BlackLivesMatter to #FewerGuns, from immigration reform to women’s empowerment, from the push to address climate change to the fight for an economy and social contract that work for everyone and not just the wealthy—need and are propelled by voices. But victory also needs, and is determined by, votes. Protest matters. So do elections.

The activism of this moment obviously has much to teach—for example, about what Twitter and Tear Gas author Zeynep Tufekci calls the “affordances” of digital mobilizing, or the strengths and shortcomings of leaderless, “horizontal” mobilization, alongside institutions, organizations, and strategic campaigns. Today’s activists—people of color, women, trans and gay people, patriotic Americans determined to stand up and get our country back on track—demand we go beyond remedial measures to redressing systemic racism, sexism, and inequity. They demonstrate the enduring and prerequisite power of dreaming big and going bold.

Transactional change asks for what seems immediately attainable, what the powers that be are willing to dole out. Transformational change envisions the world as we want it and, through hope, clarity, tenacity, and building-block work, brings it home. The freedom to marry campaign—initially derided as impossible—drew on these elements of how to win. It was transformational, its goal was clear and big and bold, it stuck to its strategy, it engaged a movement, and, paradigmatically, it worked.

As recently as 1996, at the time of the world’s first-ever freedom to marry victory in Hawaii, there were zero states, zero countries in the world, where loving and committed same-sex couples could marry. As of last month’s win in Costa Rica, there are now 29 freedom to marry countries, representing more than 1.1 billion people. Well over 1 million gay people have legally married in the United States.

The freedom to marry campaign and the epic transformation it engendered proved that—individually and collectively—we can still be engines of liberty. On the fifth anniversary of that triumph, it is heartening to see activists applying its lessons to hold America to our values and its promise.

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