“Our country is color-blind, and neither knows nor tolerates classes among citizens.”
U.S. Supreme Court Justice John Marshall Harlan
Harlan’s homage to equal protection under the law was stirring, but not stirring enough to win over his colleagues when the Supreme Court ruled 7-1 against him in the 1896 case Plessy v. Ferguson.
For more than half a century thereafter, America would operate under the Jim Crow doctrine that providing different classes of citizens with segregated but presumably equal accommodations – railroad cars, buses, schools – satisfied the 14th Amendment’s notions of equality. In 1954, 43 years after Harlan died, a later court vindicated him. Under the landmark school-desegration ruling in Brown v. Topeka Board of Education, separate is not equal.
Conquering injustice is never a quick fix. Especially the rigid, emotional kind of injustice inspired by race. Or sexual orientation.
So the Obama administration’s surprise announcement that it no longer will defend the Defense of Marriage Act clearly won’t end the discrimination that denies same-sex couples the legal protections attached to marriage. Not right away, at least. But it gives added momentum to an emerging movement toward understanding.
The Supreme Court already has struck down a Colorado state constitutional amendment that prohibited government from protecting gays’ and lesbians’ rights. It has overturned antiquated anti-sodomy laws. A handful of states have legalized same-sex marriages. The American military is no longer hampered by Don’t Ask, Don’t Tell. Opinion polls repeatedly reveal growing acceptance – especially among the young – of gays’ and lesbians’ expectations of equal rights.
DOMA declares that marriage is between a man and a woman, and that one state doesn’t have to – and the federal government must not – recognize the same-sex marriages solemnized in another.
For the White House to acknowledge the obvious, that discrimination on the basis of sexual orientation contradicts the 14th Amendment, is a significant advancement in the national debate. Without a substantial relationship to some important government interest, the Justice Department can’t rationalize fighting in court to preserve an unworthy statute.
In time, preferably much less than half a century, the attitudes that resist this progress will seem as embarrassingly old-fashioned as the segregationist values of Plessy v. Ferguson.