Yale Law School, 1985. I read the wonderfully named Loving v. Virginia, the Supreme Court case which held that marriage was a fundamental American right, and struck down laws banning interracial couples from marrying. “I want to write a law review article arguing that the marriage laws should include gay and lesbian couples too, under the same reasoning,” I told my civil rights professor. “Don’t be ridiculous, Lisa,” he told me, “you’ll never see gay marriage in your lifetime.”
That summer after my second year of law school I interned for Lambda Legal Defense and Education Fund. We worked on <em>Bowers v. Hardwick</em>, a case challenging the constitutionality of laws in half the states that criminalized gay sex.
New York City, 1986. Halfway through studying for the Bar exam, the Supreme Court ruled in <em>Bowers </em>that gay and lesbian sex could be considered a crime worthy of arrest and incarceration, upholding those odious laws. Michael Hardwick had been arrested for having consensual adult sex with another man in the privacy of his own home. I joined the massive demonstration outside the historic Stonewall Inn, and seriously considered packing it all in. How could I join the legal profession after this? It was intensely demoralizing.
June 26, 2015. My daughter is now studying for the Bar exam. Not only did the Supreme Court reverse the odious <em>Bowers </em>ruling a decade ago, but today it ruled that our lesbian and gay friends have the right to marry in all fifty states. She is energized and thrilled like so many of us. Like America, we have come full circle.
Like millions, we rejoice today. The Fourteenth Amendment and Love Wins are trending on Twitter. The Gay Men’s Chorus is singing the Star Spangled Banner outside the US Supreme Court.
I read the entire decision. Here are my favorite parts.
Justice Kennedy wrote the majority opinion, joined by all the female justices (Kagan, Sotomayor, Ginsburg) and Justice Breyer. He’s written all the major gay rights rulings, and they’ve all centered on the recognition of the indignity of discrimination. In today’s decision he exalts marriage and the same sex partners’ desire to be part of it:
<blockquote>. . . it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect – and need – for its privileges and responsibilities. And their immutable nature dictates that same sex marriage is their only real path to this profound commitment.</blockquote>
But what of the institution’s history—a commonly cited argument from the opposition—which allowed marriage only to opposite-sex couples? Sometimes it can take us a while to wake up to injustice, writes Justice Kennedy:
<blockquote>. . . The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.</blockquote>
The majority has great reverence for marriage and its special place in our lives:
<blockquote>. . . The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. . . .There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.</blockquote>
(Hold that thought for when I discuss Justice Scalia’s contempt for the institution below.)
For years, opponents of same sex marriage argued that marriage is about procreation, and since same sex couples can’t make babies, they shouldn’t be allowed to wed. Gay folks pointed out that they can and do procreate, and that their children should be raised in families considered equal in the eyes of the law. Justice Kennedy agrees, and recognizes that now even those opposing marriage equality concede that many gay parents are good parents:
<blockquote>. . . As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. . . . Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents . . . This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families.</blockquote>
Again and again, the majority returns to the theme of dignity. It is just wrong for us to have second class citizens in America.
<blockquote>. . . As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.</blockquote>
What of that terrible <em>Bowers </em>case? Justice Kennedy comes very close to apologizing for the profound pain and humiliation it caused.
<blockquote>. . . In <em>Bowers</em>, a bare majority upheld a law criminalizing same-sex intimacy. . . . That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect,<em>Bowers</em> upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were not known to the <em>Bowers </em>court. . . . That is why <em>Lawrence </em>held <em>Bowers </em>was “not correct when it was decided.” . . . Although <em>Bowers </em>was eventually repudiated in <em>Lawrence</em>, men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after<em>Bowers </em>was overruled. Dignitary wounds cannot always be healed with the stroke of a pen.</blockquote>
The final paragraph is so poetic that I had to wipe my eyes while reading it. My daughter told me she wants it read at her wedding.
<blockquote>. . . No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.</blockquote>
It’s hard to move from this to the dissents, which moan that American freedom and democracy are coming to an end.
Justice Roberts is defensive, knowing that many will rejoice at today’s decision. He seems to know he’s on the wrong side of history. But he believes the question should have been left to the states, and that the majority overreached. (Would he say the same about <em>Loving v. Virginia</em>? Was it wrong for the Supreme Court to tell the states they had to allow interracial marriages? He doesn’t say.)
He concludes with a highly unusual and snippy message straight to the people:
<blockquote>. . . If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the arrival of new benefits. But do not celebrate the Constitution. It had nothing to do with it.</blockquote>
Justice Scalia wrote his own separate dissent, blasting the majority for finding fundamental constitutional rights for lesbian and gay Americans. He goes off on a bizarre tangent attacking the court’s elitism. Californians are not Westerners? Come again?
<blockquote>. . . Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count).</blockquote>
Worse, Scalia makes fun of “hippies” (are we living in the 1960s? do hippies still exist?) and claims that long term marriages are so confining:
<blockquote>. . . “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, <em>is </em>a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)</blockquote>
To recap: the liberals exalt marriage. Conservative Scalia snarkily criticizes it. (Like the old joke: “gay marriage? Haven’t those people suffered enough?”)
Finally, Justice Thomas worries about the people of “conscience” who oppose marriage equality. They’ll have to tone it down or be accused of bigotry.
<blockquote>. . . Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. . . . We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.</blockquote>
Most of us are okay with this.
I am certainly glad I didn’t give up in 1986. I’m proud today to be a civil rights lawyer. So many people fought for so long to secure true equality for LGBT Americans. As Dr. Martin Luther King, Jr. wrote: “the arc of the moral universe is long, but it bends toward justice.” Today the Supreme Court delivered that justice. And the nation delivered a giant hug to all of our LGBT friends.
That space left when we take down the confederate flags across America? Fill it with the rainbow flag.