Prompted by the U.S. Supreme Court’s decision in the ACLU’s case on behalf of Edie Windsor that struck down the heart of the Defense of Marriage Act (DOMA), the law prohibiting the federal government from recognizing marriages of same-sex couples, more than 20 courts have issued rulings against similar state prohibitions.

Last week, Monroe County Circuit Court Judge Luis M. Garcia declared part of Florida’s ban unconstitutional. More cases are in the pipeline, including the ACLU’s case in federal court seeking what Judge Garcia’s opinion does not address: recognition of marriages performed in other states.

The flurry of activity across the country involves battles over the meaning of the due process and equal protection clauses of the Fourteenth Amendment — added to the Constitution after the Civil War to prevent states from depriving any person of fundamental rights.

 

But other questions about democracy are posed by the revolution in legal rights for lesbians and gays in which our nation is now enveloped: How much longer are we required to endure the biases and prejudices enshrined in our laws?

Until the U.S. Supreme Court struck down Virginia’s ban on interracial marriage almost 50 years ago in another landmark ACLU victory, such marriages were against the law in many states. The Supreme Court reaffirmed the longstanding principle that, in a constitutional democracy, “fundamental rights may not be submitted to vote; they depend on the outcome of no election.”

Having constitutional principles means that neither a vote of the Legislature nor a vote of the people can deny equal treatment to a minority.

Promoters of the marriage ban bristle at the charge of prejudice and bias. Because animus toward a minority, as the Supreme Court has long recognized, is an impermissible basis for public policy, anti-marriage proponents mask their animus behind the claim that the ban defends the people’s vote to “protect” traditional marriage, encourages procreation and fosters a better environment for the rearing of children.

Ironically, the ferocity and absurdity by which the leaders of the anti-marriage movement argued that their hands were clean of animus established for Judge Garcia that the ban was in fact motivated by bias against gays and lesbians.

We celebrate Judge Garcia’s decision — for the plaintiff-couple, Aaron and William, and other couples (and their families) that will benefit, and because this court protected the rights of a minority against what Alexis de Tocqueville called “the tyranny of the majority.”

The freedom to marry is coming to Florida. But the road to get there goes through the U.S. Supreme Court — and we will be back there soon.

This piece appeared as an op-ed in multiple newspapers throughout Florida.

This post originally appeared on the American Constitution Society blog.

By now it is cliché to observe that the advancements in equality for the lesbian, gay, bisexual, and transgender (LGBT) community in the past decade or so have been simply astounding. The victories have indeed been incredible, manifested not just in the securing of formal legal equality in some legislative and regulatory bodies but also dramatic shifts in public opinion and major wins in courts and administrative agencies (and, most recently, in President Obama’s announcement of a forthcoming executive order banning workplace discrimination against LGBT employees of federal contractors). This is something to celebrate.

But the fight is far from over, and complacency is not an option. The triumphs of the past few years have created a sense of inevitability that can serve as a useful advocacy tool but that may also blind us to the challenges that remain ahead.

Some things—like marriage for same-sex couples—really are inevitable (and I am proud to be the lead counsel in the ACLU of Florida’s case challenging Florida’s ban on recognizing marriages of same-sex couples); but marriage equality is only inevitable because countless people have been working for decades (and are continuing to work) to make it so. While the marriage equality movement will hopefully be sliding into home plate in one of the next two Supreme Court terms, there remains a long, hard road ahead on other issues.

For example, many people are still shocked to hear that most states have no laws explicitly prohibiting employers from firing someone simply for being gay or transgender. While litigation will have a role to play in that fight as well, the real heavy lifting will have to be done in state legislatures (and not a single southern state has a non-discrimination law barring discrimination against LGBT people). Despite supermajority support for employment protections for LGBT people, legislatures are fertile ground for the harmful stereotypes and misinformation about LGBT people that continue to exist, thanks in substantial part to the harmful and misguided work of anti-LGBT groups.

Perhaps nowhere will these battles be fought harder than in the South, and for the same reasons, the South is where the need for these protections is likely the most acute. Southerners stand awestruck at the progress being made elsewhere, like with California’s incredible new statutory protections for transgender students. Such a law in Mississippi is unthinkable and will continue to be so until the work is done to educate and mobilize the public.

In the meantime, progressives in southern states still struggle for basic protections—recognition that discrimination on the basis of sexual orientation and gender identity is not more legitimate than discrimination on the basis of race, sex, national origin, or other protected categories.

Compounding this predicament is the willingness of individuals both in the South and elsewhere to use religion as a blank check for discrimination in this context. Such religious exemptions will look very attractive to legislators facing pressure from anti-LGBT groups, but the insidious nature of the exemptions cannot be overstated. Many are drawn so broadly that they could potentially encompass not only houses of worship but religiously affiliated universities and hospitals (for example)—some even go beyond religiously affiliated institutions—and because the exemptions are not applied to other protected categories, they entrench the dangerous perception that discrimination against LGBT people is more legitimate than other forms of discrimination.

These and other challenges characteristic of the South mean there is a lot still to be done. National organizations and funders are recognizing the needs of people living in Southern states and are pumping in resources, which is a big first step to transforming overwhelming public support into legislation. State and local groups that have been slogging for years in their respective state legislatures will be pushing harder than ever, seeking to capitalize on recent momentum to finally push us over the finish line.