A Question of Pride - Will Legal Advances Stand?

By Prof. Jeremiah Ho

This year’s June LGBTQ Pride Month is distinctive because it marks the 50^th anniversary of the Stonewall Riots.  A half-century ago, New York City police raided the Stonewall Inn, a cramped gay bar in Greenwich Village.  That harassment incited a six-day riot from gay patrons and neighborhood sympathizers.  In LGBTQ history, the Stonewall Riots represents a defining moment of acting up and symbolizes the threshold of the gay liberation movement of the 1970s, which ultimately transformed LGBTQ visibility.    

This past year has brought other LGBTQ anniversaries.  Last October was the 30^th anniversary of National Coming Out Day.  This past February marked 15 years since Massachusetts first legalized same-sex marriage.  There is much to commemorate. 

Yet, not all anniversaries this June are celebratory.  A year ago, the Supreme Court reversed a Colorado ruling that a Christian baker’s refusal to sell a wedding cake to a same-sex couple was discriminatory.  In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court protected the baker’s religious freedom by finding that the lower proceedings had been tainted by religious hostility—even when the same-sex couple’s sexual orientation discrimination claim was sound.  Some legal commentators have since questioned the Court’s grounds for finding religious hostility.  

Before Masterpiece, full equality for LGBTQ individuals seemed inevitable.  The Supreme Court had protected LGBTQ people from legislative animus, de-criminalized their sexual relationships, and overturned the Defense of Marriage Act.  In 2010, Congress repealed Don’t Ask, Don’t Tell.  Progress culminated in 2015 when the Supreme Court recognized same-sex marriages in Obergefell v. Hodges.  Love won—as the popular saying went.

But Masterpiece and the current lack of full equality loom over this Pride Month, especially as Stonewall’s anniversary approaches. 

Aside from the Supreme Court’s questionable interpretation of religious hostility in Masterpiece, the problem with last year’s wedding cake case reveals a hurdle for current LGBTQ activism.  This hurdle was one that Stonewall, in part, externalized and what turned the conformist style of gay rights activism of the 1960s into its 1970s radical liberationist incarnation.  In the quest for equality, some gays, unfortunately, tend to get ahead of others.  

To win marriage equality in 2015, the same-sex couples in Obergefell had to show that their interests in marrying converged with the interests of mainstream America to uphold traditional marriage.  In his studies on American racial progress, the late Derrick Bell, NYU legal scholar, had called this strategy “interest convergence.” 

• Achieving interest convergence in Obergefell meant that the same-sex couples could not threaten the mainstream status quo of America while seeking one of its most prized institutions.  The strategy was conformance, assimilation, and respectability.  The couples resembled mainstream straight married couples by exhibiting cultural, economic, and gender norms that aligned with the status quo.  A 2015 Yale Law paper explored just how assimilated these same-sex couples were in Obergefell.  See Cynthia Godsoe, Perfect Plaintiffs, 125 Yale L.J. F. 136 (2015).  The couples looked all-American in the upper-middle class, mostly-white, professional, and family-oriented sense, and made marriage equality an issue seemingly confined to a small, elite segment of the LGBTQ population.  That strategy worked.  Love did win. 

But the strategy also relied on gay elite privilege to overcome a legal struggle for equality.

Last year, the same-sex couple in Masterpiece did not resemble the same-sex couples in Obergefell.  Without children and upper middle-class professions, they didn’t seem as “all-American” or mainstream.  In public, their hairstyles and clothing blurred gender lines.  The two men, Charlie Craig and David Mullins, even dared to kiss outside the Supreme Court building.  Culturally, they were queer, not assimilated.  And their plight against discrimination pitted their queerness directly against anti-gay Christian beliefs—threatening another status quo institution:  religion.  Interests didn’t converge then.  Instead, the status quo felt threatened and so the baker won.    

Thus, equality bears a conditional message for gays:  resemble the mainstream or your chances for equal treatment are attenuated. 

In spirit, Stonewall and the gay liberation movement of the 1970s urged against surrendering visible, authentic lives for compromises that assimilation and respectability might bring.  The LGBTQ movement must do better to show mainstream America that there are others to recognize.  In my forthcoming article from the Yale Journal of Law & Feminism, I detail further the status quo anxiety in Masterpiece and propose a shift away from identity politics to broad coalitions premised on democratic values.  A preview of the piece is available here.

Moreover, in the next Supreme Court term, three cases of employment discrimination against gay and transgender individuals will also allow the movement to re-examine its strategies.

Yes, marriage equality provided progress and the Obergefell plaintiffs were true to their own struggles.  But when discrimination in employment, housing, and public accommodations still affect LGBTQ individuals, marriage equality was not full equality. 

So this Pride Month when we see those “Love Wins” signs again, we must also ask:  when will queer win?