Marshall’s optimism proved to be unfounded. School desegregation stalled for nearly a decade and schools were becoming more racially separate by the time of his death in 1993. The three landmark civil rights acts outlawing racial and other forms of discrimination in employment, voting, and housing had not been enacted by 1963, but over the next five years instead.
LGBT rights advocates celebrating the Supreme Court’s decision a year ago guaranteeing marriage equality for same-sex couples were similarly thrilled with the victory, but some tempered their optimism. The National Gay and Lesbian Chamber of Commerce called on the LGBT movement that day to “harness this momentum to secure greater equality, especially nondiscrimination protections for LGBT Americans.”
The scattered resistance to same-sex marriage has faded, except for the continuing calls for a religious liberty exemption for public officials, businesses, or individuals to refuse to provide services for gay or lesbian weddings. It is still legal in roughly half the states for a private employer to fire or refuse to hire an individual on the basis of sexual orientation or gender identity.
Transgender rights advocates have gained new visibility but only because of controversial moves in Houston, North Carolina, and Virginia aimed at forcing transgender individuals to use public bathrooms that correspond to their biological sex instead of their gender identity.
The unfinished work for LGBT rights advocates was one of the topics as LGBT journalists gathered in Miami’s South Beach this past weekend for the annual convention of their national organization, NLGJA. “They say we’re in a post-marriage equality, post-don’t ask, don’t tell world,” longtime activist Cathy Renna said as she opened a panel discussion under the title “Putting the ‘Move’ in Movement: a.k.a. Life After Marriage.” “Are we really?” Renna asked rhetorically.
The consensus of the panelists could be summed up in one word: No. “It gets harder now,” remarked Nadine Smith, co-founder and CEO of Equality Florida. “We’ve got a lot of work to do.”
Marriage equality emerged as the LGBT rights movement’s primary goal only as the eventual ruling suddenly seemed attainable within the past few years, sooner than almost anyone had anticipated as realistic. Even today, some in the LGBT community minimize the importance of the Supreme Court decision. “Marriage was not on my radar,” Khafre Abif, a community organizer with the Southern AIDS Coalition, remarked at the panel. “This was far from what black gay folk wanted.”
Abif hopes to repeal the laws that criminalize the knowing transmission of HIV. He notes that there are no comparable laws against transmitting genital herpes and warns that the HIV laws perversely deter sexually active individuals from getting tested so that they can learn their status and take needed precautions.
The Supreme Court’s marriage ruling in Obergefell v. Hodges built on two earlier decisions. The 1996 decision in Romer v. Evans limited the ability of state or local governments to exclude LGBT individuals from civil rights protections. Seven years later, the court in Lawrence v. Texas (2003) invalidated the few remaining state laws that made gay sex a prosecutable crime even if they were rarely enforced.
In the meantime, LGBT rights advocates had been urging Congress to approve a bill, the Employment Nondiscrimination Act, to protect gay and lesbian individuals from job discrimination nationwide. The goal briefly seemed attainable in the mid-1990s, but has been dead ever since Republicans gained control of the House of Representatives. “The Equality Act cannot win,” Dominic Holden, who covers LGBT issues for BuzzFeed News, remarked at the panel, using the bill’s current working title.
LGBT rights advocates have scored a few gains the past few years thanks to executive branch decisions by the Obama administration for example, the executive order in April 2015 prohibiting anti-LGBT discrimination by federal contractors. More recently, the U.S. Department of Education has told school boards nationwide that transgender pupils should be allowed to use restrooms and locker facilities corresponding to their gender identity rather than their birth sex.
The power of the bathroom backlash was seen in November 2015 when Houston voters repealed an LGBT rights ordinance and again in March when North Carolina’s Republican-controlled legislature passed a law known as H.B. 2 to nullify Charlotte’s local LGBT rights ordinance. “Does the LGBT movement have a strategy for dealing with this question?” Holden asked. “So far, the answer is no.”
The issue is now at the Supreme Court, which is considering whether to hear an appeal by a local school board in Virginia in a school bathroom case challenging the Obama administration policy (Gloucester County School Board. v. G.G.). A federal judge in Texas has meanwhile ruled the policy unlawful, but the administration is appealing.
Holden is watching the transgender cases with what appears to be guarded optimism, but on the whole he is downbeat on events since the marriage decision. “The big, bold LGBT movement riding high after marriage equality has been getting stopped in its tracks,” he remarked. But so too it appeared in the first years after Brown. Still, as Martin Luther King Jr. remarked, the arc of the moral universe bends, eventually, toward justice.