After a decades-long struggle, the U.S. Supreme Court may by the end of this month bring to a conclusion a major struggle of the LGBT rights movement by guaranteeing same-sex couples the right to marry across the nation.
Many legal experts expect a win, raising questions about what will happen to the LGBT movement and its donor base if marriage is longer a marquee issue.
Marriage has been a central focus of the LGBT movement in recent years, dominating headlines and inspiring discussion as court after court has struck down state prohibitions on same-sex marriage. No other issues relevant to the LGBT community have been able to generate as much interest.
Andrew Lane, a prominent gay donor in New York, said the short answer is “we don’t know” how donors would react to a Supreme Court decision in favor of marriage.
“There is no question that some people and institutions became engaged as donors because they were inspired by the promise of the freedom to marry,” Lane said. “And we may well lose some number of those folks.”
It’s uncertain exactly when the Supreme Court will issue its decision, but the best guess among legal observers is that it’ll be on the last day of the court’s term, which is currently scheduled for June 29.
Although he wouldn’t specify any names, Lane said he’s aware of only one donor who gives annually more than seven figures who may walk away from the broader movement if the Supreme Court rule for marriage. On the other hand, Lane said in the wake of the public attention to Caitlyn Jenner’s photo spread in Vanity Fair, three donors have talked to him about ways to support transgender communities.
Lane drew a distinction between individual donors who might lose interest in the LGBT movement and future actions of foundations that have supported LGBT causes, saying the latter is less of a concern.
“I am inclined to be hopeful,” Lane said. “The conversations we’ve had over the past few decades about relationship recognition provided us with a vehicle to talk in compelling ways about our lives as queer people. The level of awareness and empathy that we created through those conversations — and the support that we won from our allies — are not going away. And awareness, empathy and support are all of the kinds of things that create and sustain donors.”
LGBT advocates who’ve worked on marriage and other issues were confident the movement would build on a Supreme Court win in favor of same-sex couples, including one advocate who’s made clear his organization intends to shut down after a favorable ruling.
Evan Wolfson, president of Freedom to Marry, said instead of marriage being off the table, the movement should “harness the marriage win and the marriage conversation” to work in other areas.
“Let’s remember that though we will, hopefully, have won the freedom to marry as a matter of law, the conversation and the actual transformative power of seeing couples marry and all that it sparks will only just have come to many of the places where we still need to change hearts and minds,” Wolfson said. “So we will have something tremendously powerful and transformative to work with and to connect that to the next set of legal and political objectives that are, of course, very, very important.”
Wolfson said Freedom to Marry decided to close its doors after a Supreme Court ruling in favor of marriage equality because the organization was created on the idea of building a campaign to drive a winning strategy specifically tailored to pursue a goal, which he said has provided a model for the rest of the movement.
“And so, as our movement now lays out the next goal, or set of goals, and the next strategies to achieve those goals, the structure for achieving those goals should be connected to what the goal of the strategies are. I believe that the goal dictates strategy, and strategy dictates structure,” Wolfson said. “And our movement is fully capable of creating the right strategy and the right team of players, including hopefully a campaign approach that will drive toward our next set of big goals.”
But Freedom to Marry won’t close overnight, Wolfson said. Under his stated vision, that’ll take place after a period of months and after it has worked with partners to transfer knowledge, expertise, assets and key staff.
The nation’s LGBT largest group, the Human Rights Campaign, has in recent years undertaken significant efforts to promote the marriage cause. In recent months, it has worked to promote the lead plaintiff in the Ohio marriage case before the Supreme Court, Jim Obergefell, who lost his spouse to Lou Gehrig’s Disease and is seeking state recognition of his marriage.
Fred Sainz, HRC’s president of communications, said his organization doesn’t keep track of how many of its donations are the result of marriage or what percentage of its budget is dedicated to the issue.
“There’s a lot of work that remains to be done on the road to full equality,” Sainz said. “It’ll be incumbent on us to continue to make the case that this work must get done.”
Other items on the LGBT agenda are already well known. To name a few, they include instituting workplace non-discrimination rules; barring widely discredited “ex-gay” conversion therapy; alleviating LGBT youth homelessness; increasing transgender visibility and combatting widespread anti-trans violence; lifting the ban on transgender service in the U.S. military; removing the ban prohibiting gay and bisexual men from donating blood; and increasing acceptance in sports and entertainment.
Wolfson said a top goal for the LGBT movement after marriage should be passage of a federal civil rights bill that prohibits discrimination in all the major arenas of law on the basis of sexual orientation and gender identity.
“I think that should be a top priority for our movement, and a top organizing vision for how we structure and resource the organizations who are going to get us there,” Wolfson said.
To facilitate that goal, Wolfson called for pursuing a legal strategy that includes ensuring existing gender protections in the Civil Rights Act cover both sexual orientation and gender identity discrimination as well as shepherding toward passage state and local non-discrimination laws “both because they are important in and of itself themselves and because they will be building blocks to getting the full federal protections that we have to prioritize.”
Additionally, Wolfson said the LGBT movement should pursue cultural changes other than legal and political efforts to improve the experience of LGBT people throughout the country.
“While it’s necessary and right to prioritize legal change, we also need to work on cultural embrace, cultural acceptance and making sure that no matter where people live, they can feel supported and included and free to shape their lives,” Wolfson said. “So it’s not only the law, it’s also the culture and it’s also the engagement across communities and across structures.”
Another advocate said a favorable marriage decision from the Supreme Court would benefit other agenda items.
Dana Beyer, executive director of the transgender advocacy group Gender Rights Maryland, said the decision would mean no additional fear of muddying the message for other LGBT issues.
“The most important outcome of a final marriage win is that it is final,” Beyer said. “No more need for major efforts and allocations of resources to the issue, and, for those more cynically inclined, no more excuses to ignore what many consider more fundamental issues of discrimination.”
In 2012, former Gov. Martin O’Malley signed into law a bill legalizing same-sex marriage in Maryland, but in the same year a bill that sought to expand the state’s civil rights act to include transgender people didn’t pass the state legislature. It wasn’t until last year that Maryland enacted an update to the statute to include gender identity.
Beyer said the gay efforts made on behalf of the gender identity bill were a fraction of those made on marriage and were generally more halting and awkward, so trans leadership had to step up to guide the legislation toward passage.
“So the bottom line for the post-marriage, Cait Jenner future is that efforts need to be inclusive and comprehensive wherever possible, with trans leadership alongside gay leadership,” Beyer said. “As our legal impact organizations are now pushing for sexual orientation to be included under Title VII, and gender expression comes to the fore as the primary cultural focus of the next generation, we have no choice but to unite. After all, in most states you’ll be able to get married on Sunday and fired on Monday. That should be sufficient motivation for continued engagement.”
Based on his experience with marriage, Wolfson said he has no doubt the movement is up to the task of addressing the remaining challenges.
“I have great confidence that our movement is up to the task, and I think it is the challenge and opportunity of leaders and of activists to inspire others to step up by putting forward a strong and inspiring vision, by conveying that it is something we can do, by mapping out a smart and clear strategy and then by doing it to build on that strategy to drive it forward and then to bring others in,” Wolfson said. “I’m very confident that if we do all of that, and I believe we will do all of that, people will continue to step up and provide their time and personal engagement and also the resources.”