The Supreme Court handed down a 7-to-2 ruling Monday in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that addressed whether an owner of a public accommodation could, on religious grounds, deny services to a same-sex couple. The baker, who told the gay couple he would not make them a wedding cake, lost before the Colorado Supreme Court, but the Supreme Court decided in his favor on “narrow grounds,” because a member of the Colorado Civil Rights Commission was allegedly “hostile” to the baker’s religious claims.
Many gay-rights advocates do not see the ruling as a loss. Chad Griffin, president of the Human Rights Campaign, one of the most visible organizations supporting LGBTQ rights, applauded the Supreme Court’s acknowledgment that “LGBTQ people are equal and have a right to live free from the indignity of discrimination.” Griffin and others, most notably Jon W. Davidson, former legal director of Lambda Legal, and Katherine Franke, a legal scholar at Columbia University School of Law, found hope in the court’s declaration that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”
But that victory-from-the-jaws-of-defeat reading perpetuates a troubling logic that infects both national politics and gay-rights activism: a willingness to overlook the continued violence and discrimination that LGBTQ people face. Leading LGBTQ scholars and activists have accepted the Supreme Court’s logic that the details of this case can be divorced from the larger history of anti-gay discrimination.
But the case did not make it to the Supreme Court simply because the Colorado Civil Rights Commission was hostile to religious claims. It made it because it was about public accommodations for LGBTQ people. President Trump’s administration realized this and filed a friend-of-the-court brief in favor of the baker on the grounds of his religious liberty, but that was just a Trojan horse designed to mask its well-documented homophobic policies. Rather than litigate the issue of the baker’s homophobia-made-policy, the Supreme Court turned the case into an issue of religious liberty. By framing the decision around the Colorado Civil Rights Commission’s hostility to the baker, the court elevated the individual experience of a heterosexual baker over the collective hostility that LGBT people historically confront — the discrimination that led to the lawsuit in the first place.
The court’s failure to acknowledge the oppression that LGBTQ people face results, in part, from the tendency of leading gay-rights organizations to emphasize the progress of the movement and their commitment to find the silver lining in each defeat.
This is a relatively new development in gay-rights activism. In the 1970s, gay liberationists understood the need to draw on history to fight oppression. A cultural fixation that equated being gay with a night at the disco threatened to obscure the genuine violence and deep-rooted oppression many gay people experienced.
So they turned to history to make their point. Newspapers like the Body Politic offered gripping accounts of violence committed against gay people, beginning with a three-part series that exposed how Nazis persecuted gay men during World War II. By charting this history, gay activists informed the public about Nazi persecution of homosexuals, which did not appear in any historical accounts until the Body Politic and other queer pamphlets published it. Historian Jim Steakley, who wrote the articles in the Body Politic, hoped history would “advance the consciousness of society” and “add knowledge” for gay people to consider about their past. As he explained, “this knowledge mobilized people to join the movement in fear that something similar could happen.”
The gay press in the 1970s also continued to publish new stories of gay people being fired from their jobs, evicted from their apartments, beaten outside gay bars, and even mutilated by the infamous “freeway killer,” to expose their continual oppression.
Even since the rise of gay liberation in the early 1970s, violence has remained rampant among queer Americans. But it often has been framed as an aberration rather than as a fact of life. While many know of the assassination of Harvey Milk, the San Francisco city supervisor who was gunned down in City Hall in 1978, few know that playwright Tennessee Williams was beaten by a gang of teenagers the following year in Key West, a gay mecca.
Many others were victims of violence in the decades that followed. In the 1980s, Rebecca Wight and her partner, Claudia Brenner, were attacked while hiking along the Appalachian Trail. In 1998, Rita Hester, a transgender woman, was stabbed in the chest more than 20 times two days before her 35th birthday. And the tragedies continued, from Matthew Shepherd, a gay student in Wyoming, who was tortured, beaten and tied to a fence in 1998, to the murder of Sakia Gun, a lesbian who was attacked while waiting for a bus in Newark in 2003.
More recently, reports of violence against transgender people continue to escalate; in 2017, at least 28 transgender people were victims of fatal violence, the largest number ever recorded. And this June marks the second anniversary of the Pulse nightclub massacre, in which 49 people were killed and 53 were wounded.
Today, though, attention has shifted to a rainbow-and-glitter story that hypes the positives of gay acceptance. LGBTQ pride month has become more of a Hallmark holiday than a call to march, which was how it started. The popular adage, “things get better,” exemplifies the ethos of the LGBTQ movement: that as time progresses, the movement progresses.
But the history of anti-gay violence illustrates how this is not the case. Even the leading books on the history of gay liberation movement repeat this tale of obstacles overcome rather than of prejudice persisting. Written by queer scholars, books like “Victory” or “The Gay Revolution” further underscore the effort to find the silver lining and propagate the history of gay rights as a progress narrative, instead of a story of a movement that ebbs and flows. And the success of same-sex marriage combined with the rising representation of LGBTQ people in politics, sports and film have overshadowed the discrimination and violence that gay people experience daily, forming the context of the court’s decision.
Like gay activists from the 1970s, who took their cues from the black civil rights movement and women’s liberation movement, LGBTQ Americans today need to take our cues from Black Lives Matter and #MeToo and call out the oppression that we face each day. We need to create a hashtag movement that exposes the violence and discrimination that many of us face daily. We need to tell our stories to mobilize allies, bringing them into the campaign for equality.
Such a movement will not emerge from a court decision or even from an organization like the Human Rights Campaign. It instead requires grass-roots activism, rooted in telling our stories and putting LGBTQ history in the foreground, in publicizing our oppression and promoting our past, in forgoing the urge to claim victory and instead in recalibrating our movement in the time of defeat.
If the Masterpiece Cakeshop decision has taught us anything, it is that we can no longer accept the logic that our past can be separated from our present. History offers compelling evidence of how LGBTQ people have been victimized, not by one Colorado commissioner who made an offhand remark that has been read as hostile, but by countless acts of violence and discrimination that have persisted since the start of gay liberation and even before. Failing to recognize this history explains why some have seen this decision as a victory and not as another example in a long list of discrimination.