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Obergefell v. Hodges, Marriage Equality, and the Making of Global Queer History

One morning in late June, the U.S. Supreme Court will issue its history-making decision in Obergefell v. Hodges, the collection of lawsuits challenging state bans on same-sex marriage in Ohio, Michigan, Kentucky, and Tennessee. While predicting the outcome of Supreme Court cases is an inexact science at best, most signs suggest that a majority of Justices will vote to overturn the Sixth Circuit’s November ruling that upheld the rights of states to ban same-sex marriage, thus paving the way for nationwide marriage equality.

The constitutional basis of the majority opinion remains to be seen: will the Court issue a same-sex Loving v. Virginia that bars states from discriminating against same-sex couples when issuing marriage licenses, or will the Court more narrowly rule that states must recognize marriages between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Whatever the basis, any pro-equality ruling will prompt us to take a moment to reflect upon where we’ve been and where we’re going, and reconsider and reconceptualize the arcs of LGBT history. No doubt, there will be a handful of latter-day Francis Fukuyamas, proclaiming the “end of gay history” (at least in America’s northeastern corridor) narrowly imagining some trajectory drawn straight from the fierce drag queens rioting at the Stonewall Inn to the fabulous June weddings newly blessed by the Supreme Court.

LEFT: Police force people back outside the Stonewall Inn during the Stonewall Riots, June 29, 1969. (The New York Daily News) RIGHT: Wedding photo. (Allegro Photography/Flickr | CC BY-NC-ND)
LEFT: Police force people back outside the Stonewall Inn during the Stonewall Riots, June 29, 1969. (The New York Daily News) RIGHT: Wedding photo. (Allegro Photography/Flickr | CC BY-NC-ND)

Fortunately, most U.S.-based LGBT organizations recognize just how much remains on the “gay agenda,” whether grounding their work in the quests to secure equal citizenship or to foster comprehensive social justice. Any such agenda would include combating the epidemics of deadly violence against transpeople and homelessness among queer youth, defeating the “religious liberty” bills that cloak discrimination in the guise of faith, and ending the brutal treatment of LGBT prisoners and immigrants in ICE (U.S. Immigration and Customs Enforcement) detention facilities. Perhaps most trenchantly, the failure of the House of Representatives to pass federal legislation banning anti-LGBT discrimination means that after a pro-equality ruling in Obergefell, there will still be nearly thirty states where it will be legal to fire someone who marries a same-sex spouse.

When I think about the forthcoming decision, I can’t help but bring to bear all three of my roles — historian, teacher, human rights advocate — to try to make sense of what this will mean. In the classroom, it is an ever-growing challenge to explain how until recently, marriage was a peripheral concern at best in LGBT politics — except as a matter of critical inquiry. On the flip side, the movement for marriage equality offers an exciting opportunity to compare the interplay of legal strategies and grassroots organizing with that in other social movements, especially the black freedom struggle.

A Supreme Court decision in favor of the plaintiffs in Obergefell v. Hodges would come just weeks after more than 62% of Irish voters made their nation the first in the world to approve marriage equality at the ballot box. Such a ruling will make the United States the 21st country (give or take, depending on how one counts) to legalize same-sex marriage1 — and the fifth in the Americas, following Canada, Argentina, Brazil, and Uruguay.

Map of countries with marriage equality laws. (Human Rights Foundation)
Map of countries with marriage equality laws. (Human Rights Foundation)

Given the economic, cultural, and diplomatic power of the United States, it would be disingenuous to consider the U.S. just one more entry on the list of nearly two dozen countries allowing same-sex couples to wed. But it would be just as myopic to see the legal and grassroots movements for same-sex marriage rights, their opponents, and the histories that brought us to this moment as solely domestic affairs.

A full framework for conceptualizing recent global queer history is beyond the scope of a single post, but the pending ruling in Obergefell and the growing tally of marriage-equality countries require that we consider:

  • The democratic transitions from authoritarian rule that have prompted societies to grapple with who counts as a citizen — laying the groundwork for not only marriage equality in South Africa and Argentina, for example, but also the former’s 1996 post-apartheid constitution, the first in the world to prohibit discrimination based on sexual orientation, and the latter’s pioneering 2012 law on transgender rights.
  • The LGBT-inclusive evolution of international human rights norms (especially the Yogyakarta Principles) and transnational institutions, most dramatically the United Nations, where Secretary General Ban-Ki Moon has energetically and repeatedly supported marriage equality and condemned anti-LGBT violence and discrimination.
  • The ascension of neoliberalism over the past four decades, with its erosion of the welfare state and the promotion of marriage, which, as Lisa Duggan has argued, “privatize[s] social welfare, moving social care more decisively into the private household.” Given the eclipse of the movement for formal recognition of a broader range of relationships, we must investigate how, as Duggan continues, “the extension of marriage to gay ‘couples’ … only entrenches the capacity of this privatizing institution to absorb properly social functions.”2
  • The globalization of information and popular culture — including not only, say, the rebroadcast of Modern Family’s wedding of Cam and Mitch in dozens of countries, but also the global acceptance of the “LGBT” initialism and the rainbow flag; the de facto standardization of the LGBT categories of sexual orientation and gender identity over other local forms of sexual and gender diversity; and the international networks and shared language dedicated to opposing LGBT rights. In particular, in Russia, Sub-Saharan Africa, and elsewhere, the specter of same-sex marriage is now used as a political tool, not only to restrict the full range of LGBT rights but to suffocate civil society writ large — as seen in Nigeria, which implemented the Same Sex Marriage Prohibition Act in 2014 despite the utter lack of any movement in the country in support of marriage equality.
  • The resurgence of nationalist, ethnic, and religious movements over the past several decades, movements that invoke ahistorical traditional values and claim guardianship over morality, especially in regard to gender norms, reproductive behavior, and heterosexuality. For example, Vladimir Putin’s government has (cynically, some might say) used homophobia to smother civil society and whip up anti-Western ferment — tactics that resonate broadly as they invoke both the cultural power of the Orthodox Church and the deep anxiety about Russia’s decades-long population decline. Even in democratic post-communist Eastern Europe, where nationalist movements are successfully appealing to resentment of EU austerity policies and cultural integration, ten countries have written same-sex marriage bans into their constitutions.

Back here in the States, those same right-wing appeals to “traditional” morality are reflected in the proposed religious liberty bills that seek to limit the scope of the looming pro-equality ruling from the Supreme Court.

As we await the Obergefell decision and we consider marriage’s place in the future of the queer past, global perspective is critical. In particular, we should pay close attention to the deep ahistoricism of both cultural and economic globalization and religious and nationalist movements. Both of these forces shaping the modern world imagine and invoke marriage, and sexual and gender identities, norms, and practices more generally, with no regard for the specifics of time and place. Perhaps marriage equality opponents have a point about changing the definition of their cherished institution — but only insofar as history’s sole constant is indeed change.

Notes

  1. Any such count would start with the Netherlands introducing marriage equality in 2001, followed in chronological order by Belgium in 2003; Spain and Canada in 2005; South Africa in 2006; Norway and Sweden in 2009; Portugal, Iceland, and Argentina in 2010; Denmark in 2012; Brazil, France, Uruguay, and New Zealand in 2013; Luxembourg in 2014; and Ireland and Greenland in 2015. Additionally, England, Scotland, and Wales — but not Northern Ireland — implemented marriage equality in 2014; as such, some lists note the home countries individually or the United Kingdom (inaccurately) as a whole. Earlier this year, Finland and Slovenia both approved marriage equality, but neither nation’s new law has taken effect yet. Finally, just as this post went to press, Mexico’s Supreme Court ruled it unconstitutional for Mexican states to bar same-sex marriages. However, given the particulars of Mexican law, this decision does not strike down existing laws and institute nationwide marriage equality. Instead, it appears that same-sex couples in those states without marriage equality will have to sue for their rights individually.Return to text.
  2. Lisa Duggan, writing immediately after the passage of last month’s marriage referendum in Ireland, noted the importance of the mass defiance of the Catholic Church but also contextualized the victory in the concurrent erosion of reproductive justice and the persistence of neoliberal austerity politics. Duggan, Facebook post, May 24, 2015, 10:31am. Return to text.

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