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In 1776, when the Founding Fathers wrote in the Declaration of Independence that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” they were not thinking of women. Nor were they thinking about their black slaves. And they certainly were not thinking of what they would have referred to at the time as “Sodomites” and we now consider “gay.”
But freedom is a virus that, once released, tends to spread to unexpected places. One by one, those oppressed groups, deemed marginal by God and nature, law and custom, seized that tool of freedom, crafted by white Colonial planters for their own benefit and used to strike off their chains.
In the first half of the 20th century, women won the vote. In the second half, African-Americans established that they could do anything a white person could.
And while both of those struggles go on — women still earn 2/3 of what men do; blacks still deal with a system that is separate and unequal — we live in an era of extraordinary progress for gay Americans. In the lifetime of many reading this, we went from a time when the police thought nothing of harassing gays for daring to gather in a bar — New York’s Stonewall riot took place in 1969 — to Monday, when the United States Supreme Court declined to hear five pending same-sex marriage cases, essentially upholding the legality of such marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin.
There have been many of milestones in this lengthy process, both nationally and locally: Gov. Pat Quinn signing the Illinois gay marriage law last November; couples taking their civil union vows in Millennium Park on June 1, 2011, and on and on.
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One of those milestones was the ruling Sept. 4 by Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, who eviscerated the Indiana and Wisconsin cases in such strong language (the states’ arguments weren’t just rejected, wrote Charles Pierce of Esquire, but “tore into tiny pieces, lit on fire, and fed through a wood chipper”) that even a revanchist blowhard like Justice Anton Scalia would be reluctant to grapple with his white hot logic. Some credit must go to the Chicago judge for his watertight arguments.
“The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously,” Posner wrote, for the three-judge panel. “The discrimination against same-sex couples is irrational, and therefore unconstitutional ...The harm to homosexuals (and, as we’ll emphasize, to their adopted children) of being denied the right to marry is considerable.
“Marriage confers respectability on a sexual relationship; to exclude a couple from marriage is thus to deny it a coveted status. Because homosexuality is not a voluntary condition and homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world, the disparagement of their sexual orientation, implicit in the denial of marriage rights to same-sex couples, is a source of continuing pain...
“Not that allowing same-sex marriage will change in the short run the negative views that many Americans hold of same-sex marriage. But it will enhance the status of these marriages in the eyes of other Americans, and in the long run it may convert some of the opponents of such marriage by demonstrating that homosexual married couples are in essential respects, notably in the care of their adopted children, like other married couples.”
Which is the bedrock of fact at the bottom of all this. Gay couples make no worse spouses, no worse parents, than anybody else, and it is the poisoned fruit of religious bigotry married to ignorant malice to suggest otherwise. Chicago’s great legal thinker, Richard Posner, said it so clearly, if he didn’t convert opponents on the Supreme Court, he made them reluctant to argue the point.
Photo atop blog: signing Illinois gay marriage into law, November, 2013.