As a member of the City Council, the late Harvey Milk was nothing if not practical, becoming the first openly gay elected official in California in part by campaigning for a pooper scooper law. So it was in that spirit that one of his friends, the legendary gay rights activist Cleve Jones, recently mused to a meeting with local reporters in San Francisco about the possibility the Supreme Court would expand gay marriage nationwide.
“Now what?” Jones said, channeling his one-time mentor while standing not far from a statue of him. “What about that kid that’s still in Altoona, Pennsylvania? What about that lesbian couple in Birmingham, Alabama? What about that trans cop in Jackson, Mississippi? What about their lives?”
The answer may not be as uplifting as Friday’s news promised. While the court’s ruling in favor of gay marriage in Obergefell v. Hodges is a historic milestone in the gay rights movement that will help tens of thousands of Americans enjoy the benefits of a legal recognition of their unions, there is an undercurrent of risk too. In those parts of the country that do not bar discrimination in housing or employment, gay marriage may make some gays and lesbians more vulnerable.
Take Texas, a state where gay marriages have not been recognized. Pretty soon, a gay man might be able to head to Abilene City Hall for a marriage license and take his vows with his longtime partner. His boss could then fire him and his landlord start eviction proceedings based on his sexual orientation, and it would be perfectly legal.
“At the very moment that same-sex couples in the majority of states in this country partake in that new right that they have, to marry to person that they love, that wedding happens at 10 a.m. They can be fired by noon and evicted from their homes by 2 p.m.,” Chad Griffin, president of the Human Rights Campaign, tells TIME in an interview. “All in the same day, simply for posting the wedding photo on Facebook.”
And it’s not just Texas. Indeed, more than 206 million Americans — nearly two thirds of the country — live in states where employers can be fired someone for being gay. Only 18 states and the District of Columbia prohibit housing discrimination based on a tenant’s sexuality or sexual identity. Three others prohibit discrimination on sexuality. The remaining 166 million Americans live in states where landlords can evict someone for their sexuality. Friday’s ruling had no effect on what conservative attorney Ted Olson, who argued California’s landmark same-sex marriage case before the Supreme Court, called a “crazy quilt” of laws that unequally treat gays and lesbians.
“The freedom to marry would open many doors, but it does not eliminate discrimination and violence against LGBT people and people living with HIV,” said Kevin Cathcart, Executive Director of Lambda Legal, a gay rights advocacy group. “And our well-funded opponents would not stop trying to roll back our advances.”
For instance, this population can, in most of America, be denied a job, a house or an education. At the same time, serving on jury can be predicated on a potential juror’s sexuality in most of the country. (Only in the liberal Ninth Circuit have courts found parties cannot exclude jurors based on their sexuality.) And religious liberty laws permit people of faith deny goods or services to gays and lesbians. Cakes, flowers and even pizza can be denied to same-sex couples in the name of religion.
At the same time, banks and other lenders can legally consider a person’s sexuality in determining creditworthiness, and institutions such as emergency management programs or homeless shelters can deny services to gays and lesbians. A report from the liberal Center for American Progress found that one in five homeless youths who were gay couldn’t access short-term services or shelters and another 16 percent rejected for long-term help because of their sexuality.
“Most Americans believe that there are these comprehensive protections in place because it’s so clearly, morally wrong,” said Sarah Warbelow, legal director at the Human Rights Campaign. “They can’t reconcile that with the fact that there aren’t these protections in every community. It’s why people think organizations like (the Human Rights Campaign) are going to pack it up and call it a day after marriage equality because it doesn’t comport with their view of how the world should operate.”
It’s one of the reasons the Human Rights Campaign is now turning its focus on to efforts to add city- and state-based protections, as well as gearing up for a fight on a federal non-discrimination law. Previous efforts have failed to gain traction and most Republicans oppose the proposals. Democratic Sen. Jeff Merkley of Oregon has been working on a comprehensive non-discrimination bill and aides say he could introduce it to the full Senate as early as July. When he does, the 1.5 million-member Human Rights Campaign plans to advocate for it.
“Even with a positive ruling, we’re still not totally equal,” said Jim Obergefell, the plaintiff whose case the Court decided. Obergefell has been traveling the country trying to rally support in places like Dallas, Atlanta and Columbus, Ohio. “Everywhere I go, people come up and thank me.” His allies at the Human Rights Campaign liken him to civil rights leader Rosa Parks or Edie Windsor, whose 2013 case to the Supreme Court opened the rapid expansion of same-sex marriage rights.
“No one would could have predicted this would happen so soon,” said Griffin, who shares an Arkansas hometown with former President Bill Clinton and former Arkansas Gov. Mike Huckabee. “You go back 6, 7, 8 years. We were losing every battle in the country. The opponents were beating the heck out of us at the ballot box and at state legislatures.”
Then, courts started siding with gay rights activists and public opinion started a rapid shift. Vice President Joe Biden came out in favor of same-sex marriage, followed by President Obama. The pair became the first political ticket to win the White House on a platform that backed same-sex marriage. The issue seems to have lost its political valence, although the culture warriors are hardly giving up. It is certain they will oppose the non-discrimination law when it is introduced later this summer.
“That’s going to take a very long time. It’s going to take us years to get there,” Griffin concedes. But he insists he is not disheartened that yet the victory is incomplete. “It’s our job to roll out our sleeves and get to work harder than we’ve even worked before, and say, ‘Now what?’ to that question that Harvey would have asked,” Griffin said. “We can’t slow down. We can’t kick back and we can’t step back. And we can’t be patient.”
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