It’s 2003 at the Los Angeles LGBT Center
Rev. Deborah Johnson tells us to, “Get comfortable and close your eyes.”
I’m lying on the floor with a room full of lawyers, non-profit leaders, grassroots LGBT activists, and LGBT/LGBT friendly clergy collectively known as the California Freedom to Marry Coalition. Thirty of us are gathered together to discuss winning marriage equality for same-sex couples. Same-sex marriage had not yet become a reality in any place in the world, except the Netherlands. It was before Gavin Newsom, before Massachusetts, and even before I began writing my book, Why You Should Give A Damn About Gay Marriage.
Rev. Deborah asks us to imagine what it would be like if we had marriage equality.
According to the right wing opposition it would mean the decline of Western Civilization as we know it. The end of the patriarchy.
As I lay there with my eyes closed here’s what I saw:
I saw a pink haze and the colors of the rainbow, people smiling, a world of cooperation, a world where everyone was just being themselves. Gender was more fluid. People dressed and expressed themselves as they felt comfortable. The hard and fast rules of what made someone a man or a woman didn’t exist. People were joyful, friendly, open. People mingled together without the segregation we’d always known. Same-sex couples with mixed sex couples. The vision was so beautiful it brought tears to my eyes, though very little of what I saw had anything to do with gay marriage or images of gay marriage.
When I opened my eyes I had a powerful revelation. The right wing opposition was right “gay marriage” would destroy patriarchy and Western civilization as we knew it. For the past 2000 years Western civilization has been based on the subjugation of the feminine and the oppression of large groups of people. Western Civilization has focused on the enslavement or marginalization of the masses to benefit a ruling or elite class. Values of war, more, mine, competition, rape and pillage, colonize and convert, subjugate and exploit the Earth, these are the values that have been at the root of Western Civilization as we’ve known it for the last 2000 years. YUCK!
Gay marriage would be the harbinger of a new world order. Gay marriage would turn the patriarchy on its head. Gay marriage would bring equality between the sexes. Men openly loving other men. Men who don’t “choose” to have a wife to subjugate. Women who “choose” sexual pleasure with other women, rather than obligation and sexual domination by men. Heterosexual men and women who choose equality and cooperation over patriarchy.
Yep, that would f…things up pretty big for “Western Civilization” as we’ve known it, a civilization that has supported and encouraged the enslavement of Africans, the annihilation of Indigenous Cultures, the destruction of the soil, the water, the animals and the forests for greed and profit.
Gay marriage would actually be a part of a more loving agenda to honor all people equally, to be more compassionate and caring to Mother Earth and all of God’s creatures, and to celebrating and valuing love. Yep, they were right. I saw it and I got it. I could feel Dr. King’s Beloved Community emerging in that vision. I was in! I wanted a piece of that future.
Flash forward June 27, 2015 the day after the SCOTUS Marriage Equality Ruling
I’m sitting in Dolores Park, in San Francisco’s Mission District, named after the huge Mission Dolores founded in 1776, where 5,000 of indigenous people are buried in unmarked graves, many having died from diseases brought by colonizers and religious converters.
Today the sun is shining, the sky is blue, and almost every patch of green grass is covered with people. On this day, people of all ages, every color, every background, every sexual orientation, and reflecting a wide spectrum of gender and body, gather. They talk, laugh, dance, hug, kiss, drink, eat. They celebrate. They celebrate that the world is brighter on this day. They celebrate being alive. They have come in peace. They are dressed in the colors of the rainbows. They make a human rainbow of diversity. Nothing to prove today, just being.
My mind wanders back in time to the Freedom to Marry Coalition meeting in Los Angeles in 2003, to the vision I saw. Tears roll down my cheek as I realize I am living the vision. I am witnessing the beginning of the end of the world as we know it and I feel fine.
This piece was originally posted on www.davinakotulski.com on 2 July 2015.
Davina Kotulski, Ph.D. is the former Executive Director of Marriage Equality USA. A nationally known marriage equality/LGBT rights activist, leader and speaker, Kotulski is also a licensed clinical psychologist, life coach, and author of several publications including two non-fiction books Why You Should Give A Damn About Gay Marriage (2004) and Love Warriors: The Rise of the Marriage Equality Movement and Why It Will Prevail (2010). Kotulski was featured in the following films: Freedom to Marry (2004); I will, I do, We did (2004); Pursuit of Equality (2005); Wedding Wars (A&E, 2006).
#1 Rev. Deborah Johnson courtesy of www.deborahjohnson.org
#2 People dancing image courtesy of Chabot College Library
#3 Mission Dolores Park in San Francisco, 27 June 2015, courtesy of Davina Kotulski
#4 Davina Kotulski, courtesy of www.davinakotulski.com
The United States Supreme Court’s decision in Obergefell v. Hodges establishing nationwide marriage equality will likely go down in history as one of the Court’s great landmark rulings. The Court’s opinion not only embraces liberty and marriage equality for LGBTQ Americans but reaffirms the fundamental principles of American constitutional democracy. Although the opinion often uses terms such as “gays and lesbians” or “same-sex” couples and discusses sexual orientation, the Court’s holding brings marriage equality to all LGBTQ people and significantly advances the goals of freedom and equality in all aspects of our lives.
The opinion begins by articulating the core American value of personal freedom: “The Constitution promises liberty to all within its reach, a liberty … to define and express their identity.” The Court then explained how the Constitution is not shipwrecked in the 18th century but lives today to protect Americans’ freedom and equality. In the Court’s words: “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.”
The Court implicitly recognized the importance of decades of LGBTQ activism in creating change, explaining that “new dimensions of freedom become apparent to new genera¬tions, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”
The Court then held that laws that exclude LGBTQ couples from marriage “burden the liberty of same-sex couples, and … abridge central precepts of equality.” Such laws “are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exer¬cising a fundamental right.”
The Court affirmed that two people “whatever their sexual orientation” may form an “enduring bond” in marriage and that can lead to greater “expression, intimacy, and spirituality.” Further, “gays and lesbians can create loving, supportive families,” and indeed “hundreds of thousands of chil¬dren are presently being raised by [same-sex] couples” in “loving and nurturing homes ….” Put simply, the Court stated, “[t]here is no difference between same- and opposite-sex couples with respect to” these core matters. Yet same-sex marriage bans undermine the dignity of LGBTQ families, “harm and humiliate the children of same-sex couples,” and “consign” same-sex couples “to an instability many opposite-sex couples would deem intolerable in their own lives.”
In explaining its decision, the Court emphasized the horrible isolation that LGBTQ Americans have had to endure historically. In the Court’s words, for long “[a] truthful declaration by same-sex couples of what was in their hearts had to remain unspoken,” and for years“[s]ame-sex intimacy” was criminal in many states. The opinion refers to how historically many LGBTQ people had been “con¬demned to live in loneliness, excluded from one of civiliza¬tion’s oldest institutions,” marriage. The Court further noted that “[g]ays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.”
The Court spoke of the destructive nature of such prejudice and discrimination. “Especially against a long history of disapproval of [same-sex] relationships, [the] denial … of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them.“
The tone of the opinion is strikingly vivid, emotionally intelligent, and personal. We and many others have experienced a profound sense of dignity and pride at no longer being second-class citizens when it comes to marriage, but the Court also acknowledged how painful and lasting the human toll of disparagement and isolation is. In the Court’s words, “wounds [to our human dignity] cannot always be healed with the stroke of a pen.” In describing the limited benefit of incremental victories, such as decriminalization of same-sex love, the Court observed: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”
The opinion will significantly bolster future cases challenging sexual orientation discrimination because the Court recognized the harmful effect of inequality on all lesbian and gay people, not just those in relationships. The Court held that the “exclusion” from marriage “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.” Denying LGBTQ people the right to marry “disparage[s] their choices and diminish[es] their personhood ….”
In its opinion, the Court also recognized explicitly for the first time that homosexual orientation is healthy and unalterable, observing how “psychiatrists and others [have now] recognized that sexual orientation is both a normal expression of human sexuality and immutable.” Although long obvious to millions of Americans and to every professional psychological or medical association, the Court’s recognition of these facts is very important to assuring success in future cases challenging unequal treatment based on sexual orientation.
The Court’s opinion essentially recognized the crime of Proposition 8 and all the other statewide measures that targeted LGBTQ Americans to deprive of them of marriage equality and their basic human dignity. The Court did so by reasserting the central role of the Bill of Rights in our constitutional democracy. The opinion reassures all Americans that “[t]he Nation’s courts are open to in¬jured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” In the words of the Court, “[t]he idea of the Constitution ‘was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials ….’ This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’”
We could say many other things about the importance of this historic decision, but for now we conclude with the last two lines of the opinion itself. By seeking marriage equality, LGBTQ people “ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
John Lewis is an attorney and is the MEUSA Legal & Policy Director. John and his husband Stuart Gaffney were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008.
Read the Amicus Brief, authored by John Lewis, MEUSA submitted for the Obergefell case.
26 June 2015, WE WON! LOVE WON! Majority opinion by Justice Kennedy, 5-4. Per @SCOTUSblog, the Court's opinion relies on the dual rationales of fundamental rights AND equal protection and seems to go out of its way not to state a standard of scrutiny. "...the majority opinion rejects the claim that marriage is about procreation, even while saying that protecting children of same-sex couples supports the Court's ruling: "This is not to say that the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State."
- 26 June 2015, the slip opinion was issued - there are 25 days for parties to request a rehearing of the case before the binding mandate will be issued.
- From the Rules of the Court, Rule 45. Process; Mandates
- All process of this Court issues in the name of the President of the United States.
- In a case on review from a state court [which Obergefell was], the mandate issues 25 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it issue sooner. The filing of a petition for rehearing stays the mandate until disposition of the petition, unless the Court orders otherwise. If the petition is denied, the mandate issues forthwith.
- In a case on review from any court of the United States, as defined by 28 U. S. C. § 451, a formal mandate does not issue unless specially directed; instead, the Clerk of this Court will send the clerk of the lower court a copy of the opinion or order of this Court and a certified copy of the judgment. The certified copy of the judgment, prepared and signed by this Court’s Clerk, will provide for costs if any are awarded. In all other respects, the provisions of paragraph 2 of this Rule apply.
- From the Rules of the Court, Rule 45. Process; Mandates
- 26 June 2015, Opinion analysis: Marriage now open to same-sex couples - By Lyle Denniston, SCOTUSblog
- 26 June 2015, In historic decision, Court strikes down state bans on same-sex marriage: In Plain English - By Amy Howe, SCOTUSblog
- 26 June 2015, Transcript of President Obama’s remarks on marriage ruling - From The Boston Globe
If a marriage license is refused to you, please contact one of the following legal organizations immediately!
- Lambda Legal
- If a marriage license is refused to you, please contact one of the following legal organizations immediately!
FOR IMMEDIATE RELEASE
26 June 2015
MARRIAGE EQUALITY USA REJOICES
OVER NATIONWIDE MARRIAGE EQUALITY
100+ Celebrations Across the Country Today
For Landmark Supreme Court Decision
San Francisco/New York · Marriage Equality USA announces nationwide celebrations today to mark the United States Supreme Court’s landmark decision affirming marriage equality for lesbian, gay, bisexual, and transgender Americans.
“Today is a day that will long be remembered in our nation’s history. Today, the United States Supreme Court established once and for all that LGBTQ Americans, like all other Americans, have the fundamental freedom to marry the person they love in every state of our union,” said John Lewis, Marriage Equality USA Legal and Policy Director. “The Supreme Court’s decision recognizes our common humanity and makes clear that LGBTQ Americans should be embraced as a vital part of our nation’s fabric. The decision establishes an important legal precedent that will pave the way to ending all discrimination against LGBTQ Americans. Indeed, the decision stands as a beacon of hope for true equality for all Americans.”
“Celebrations of this dream come true will be taking place all across our country, from Jackson, Mississippi to El Paso, Texas to Seattle, Washington,” said Marriage Equality USA Executive Director Brian Silva. “Americans from every corner of this nation have worked for decades for this moment by sharing our stories of love, commitment, and family. Founded nearly 20 years ago, Marriage Equality USA is the nation’s oldest organization created for the specific purpose of achieving the freedom to marry nationwide. We are thrilled this day has finally come.”
“Thousands of people were working for marriage equality decades prior to the explosion of interest after Proposition 8 passed,” noted Christine Allen, Marriage Equality USA Communications Team. “This includes the brave couples who stood up for the right to marry in the early 1970's, when they had no support network whatsoever. We would not be celebrating today if not for the work of those pioneers. Today we honor them, and thank them. Today represents the culmination of their courage and perseverance.”
Marriage Equality USA is a lead organizer of the Unite for Marriage coalition that is coordinating local celebrations across the country. Please check www.uniteformarriage.org to view a complete listing of local events and to locate local media contacts.
LGBTQ legal organizations have created an FAQ website explaining the factual landscape following today’s historic marriage ruling: www.marriageequalityfacts.org.
Stuart Gaffney, Comms. Dir., (415) 378-3259, email@example.com
John Lewis, Legal & Policy Dir., (415) 377-7924, firstname.lastname@example.org
Brian Silva, Executive Dir., (347) 913-6369, email@example.com
We are thrilled with the June 26 marriage opinion from U.S. Supreme Court!
We will host a national SCOTUS Ruling Community Call on Tuesday evening, 30 June 2015 to discuss the ruling and what it means. Your questions are welcomed!
Participants on the call will be: Kathleen Perrin, Director, Equality Case Files; David Cruz, Professor of Constitutional Law, University of Southern California School of Law; and host John Lewis, Director of Legal and Policy, Marriage Equality USA. The call will be moderated by Brian Silva, Executive Director of Marriage Equality USA.
As the day draws near for the Supreme Court to issue its decision in the marriage equality cases, the urge to decipher any clue as to what the Court will decide heightens. A few weeks ago, the New York Times reported that as Justice Ruth Bader Ginsburg recently pronounced two gay men married “by the powers vested in her by the Constitution” at a swank D.C. wedding, she did it “[w]ith a sly look and special emphasis on the word ’Constitution.’” The newspaper also reported that the wedding guests’ wildly enthusiastic response seemed to have “delighted” the Justice. The New York Times’ speculation that Ginsburg’s intonation and reaction may be a “hint” of what the Supreme Court will decide set the news world abuzz.
The things the Justices said during the Supreme Court’s late April oral argument in the marriage equality cases have also been ripe for speculation. Several of the Justices upon whom we are relying asked questions or made statements that most observers have interpreted as favorable to marriage equality. For instance, Justice Kagan seemed to indicate that she believed the current cases were “exactly what” the Supreme Court’s landmark decision, Loving v. Virginia, that struck down all state bans on interracial couples marrying, was about. In Loving, the Court held that such marriage exclusions violate Americans’ fundamental right to marry and the guarantees of equality that the U.S. Constitution provides. Justice Kagan described how Loving showed that “liberty and … equality are intertwined ….”
Justice Breyer also observed that “marriage is about as basic a right as there is” and that the Constitution prohibits a state from “depriv[ing] a person of … basic liberty, without due process of law ….” He questioned opponents’ counsel as to same-sex couples’ argument that they have “no possibility to participate in that fundamental liberty” in states without the freedom to marry. Breyer further stated that opponents’ argument that upholding tradition justified states’ same-sex marriage exclusions was “the same way we talk[ed] about racial segregation” during the era of Loving. Justice Sotomayor seemed to agree, apparently rejecting opponents’ argument that LGBT Americans somehow seek a Constitutional right to “gay” marriage and understanding that same-sex couples simply assert their fundamental right to marry that the Constitution guarantees everyone else.
Justice Ginsburg said favorable things as well. She recognized how the evolution of marriage under the law from “a relationship of a dominant male to a subordinate female” to an “egalitarian” institution made it something that same-sex couples would seek to participate in. She also seemed to reject opponents’ argument that same-sex couples’ marrying would somehow harm heterosexuals’ marriages, noting that the freedom to marry for same-sex couples would not “tak[e] away anything from heterosexual couples.” Justice Kagan appeared skeptical of similar arguments from opponents, noting that some people find it “hard to see how permitting same-sex marriage discourages people from being bonded with their biological children." Justice Breyer asked opponents’ attorney for “empirical” evidence of such a connection, none of which was availing. Soon thereafter, Justice Kagan told opponents’ counsel that he found his reasoning “inexplicable.”
Much attention focuses on Justice Kennedy, who is considered the “swing” vote on the Court in many cases and has written all three of the Court’s landmark LGBT rights cases. Kennedy said relatively little during the argument but asked questions and made statements that observers have interpreted as favorable to both sides. LGBT supporters were disturbed when early on he gave voice to the argument that a purported “definition” of marriage had been “with us for millennia” and that “it's very difficult for the court to say 'Oh well, we know better.'" Justice Breyer also wanted an answer to questions about the issue.
However, Justice Kennedy also stated that he thought “the whole purpose of marriage” was to bestow dignity on the couple and that same-sex couples seek the same “ennoblement” that other married couples have. In questioning opponents’ counsel, Kennedy recognized same-sex couples’ argument that they seek marriage “in order to show that we, too, have a dignity that can be fulfilled.” Kennedy also noted that approximately the same amount of time has elapsed between the Supreme Court’s landmark LGBT rights decision in Lawrence and the current cases as had elapsed between Brown v. Board of Education and Loving, two of the Court’s landmark race discrimination cases.
Justice Kennedy’s references to the importance of the dignity that marriage confers are heartening. Dignity was central to Justice Kennedy’s opinion in United States v. Windsor, striking down section 3 of DOMA. He emphasized that the State of New York’s decision to end the exclusion of same-sex couples from marriage reflected the state’s decision to “protect” same-sex couples “in personhood and dignity.” Justice Kennedy wrote that “essence” of DOMA was “interference with the equal dignity of same-sex marriages” and that the “injury and indignity” that DOMA inflicted on married same-sex couples was “a deprivation of an essential part of the liberty protected” by the Constitution. He stated that DOMA “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” thereby “plac[ing] same-sex couples in an unstable position of being in a second-tier marriage.”
Justice Kennedy asked questions that appeared favorable to both sides during oral argument in the marriage cases two years ago, but the ultimate result of Windsor was unambiguous, and some of the language stronger than most observers anticipated. No one can predict the outcome of any Supreme Court case with surety based on oral argument or other comments Justices might otherwise make. The actual motivations for Justices’ questions are unknowable in advance. Justices may want to probe an argument fully by making statements and asking difficult questions to both sides. Further, Justices may be poised to ask particular questions, but before they speak their colleague might ask the very same thing, or the time allotted to the argument may expire.
Anticipation will continue to build as we approach the end of June, when the Justices will likely render their decision. We know that if justice prevails, marriage equality will be the law of the land and the U.S. Supreme Court will recognize that LGBT Americans deserve full equal protection under the law in our lives.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. John is the MEUSA Director of Legal & Policy; Stuart is the MEUSA Communications Director.
MEUSA is proud to be a coordinating committee member of Unite for Marriage, the coalition of national organizations fighting for marriage equality. As a part of this coalition, MEUSA will be jointly sponsoring marriage equality events across the country on the day the Supreme Court of the United States hands down its decision in the marriage equality case currently before it.
To participate, please check the Unite for Marriage website regularly for planned events in your area, or to post an event you are organizing or participating in. And, please be sure to use the hashtag #DecisionDay in all of your social media!
Because the precise date of the court’s decision is not known and won’t be known until 10 o’clock in the morning Eastern Time on the day the decision is issued, preliminary plans are being made that will be executed at the last-minute. Please check http://www.uniteformarriage.org/ regularly for updated information.
First image created by MEUSA Creative Director Glenn Rosko.
Second and third photos taken by Paul Carey.
Marriage Equality USA was delighted with the success of the Unite for Marriage campaign, having supported the organization of rallies held in states across the country on April 28, the day the U.S. Supreme Court heard oral arguments for and against marriage equality. MEUSA Executive Director Brian Silva noted that as a grassroots organization with the most direct contact with its members, MEUSA’s lead was pivotal among the handful of top sponsoring organizations.
“MEUSA staff on the ground in DC helped to prepare and execute events. We had five staff members for the rally in front of the court; Stuart [Gaffney], Juan Carlos [Fernandez], John [Lewis], Paul [Carey], and myself. I also served as one of the coordinators on the team that supported 50 events around the country,” says Brian.
MEUSA made sure there was additional support for and emphasis placed on the regional events, not just the DC events. This was a strategic decision MEUSA pushed for among the lead organizations. “That was something we pressed for,” says Brian. “We were able to make sure things happened. There were thousands of people in DC and tens of thousands involved with all the local events that took place.” The widespread participation ensured both local and national news coverage documenting the breadth of support marriage equality enjoys even in areas formerly hostile toward LGBTQ rights. Rallies were held as far away as Alaska, on both coasts and in many central states as well.
Brian was also asked (at the last minute, without prepared remarks) to speak at the DC rally. “I was able to speak in front of the U.S. Supreme Court, representing all of the work done by grassroots activists to get to this point,” he says.
Included in the campaign was a 12-hour evening vigil the night before the U.S. Supreme Court marriage hearing outside the Court. The intention was to create a more spiritual setting in which to ground the rallies that would be held the next day. The vigil culminated in a morning procession led by faith leaders from the Lutheran Church of the Reformation in Washington, DC, to the steps of the U.S. Supreme Court.
As for the Unite for Marriage day itself, Brian says, “It was an honor to be one of the grassroots voices at the table making sure our nation came together to support this historic day.” Among the other lead organizations were GLAAD, the National LGBTQ Task Force, Freedom to Marry, GetEQUAL, the Human Rights Campaign and the Campaign for Southern Equality.
With hope beginning to emerge that the U.S. Supreme Court will make marriage equality a nationwide reality, once and for all, in June, he adds that, “We are working for more than just marriage and we need to fight for full equality regardless of the outcome in June — full lived equality. That means things like non-discrimination laws and policies for LGBTQ people, defeating religious “right to discriminate” bills, and also remembering that our community is diverse. Women’s issues are our issues, veteran’s issues are our issues, youth issues and race issues are our issues. These are all priorities for our movement.”
To see photos from rallies across the country and more information about individual rallies, please go to: http://www.uniteformarriage.org/local-events.html.
First photo: Courtesy San Francisco, CA Unite for Marriage event page Facebook
Second photo: Courtesy of Huntsville, AL Unite for Marriage event page Facebook, Lisa Cox
Third photo: MEUSA ED Brian Silva speaking at Washington DC Unite for Marriage Rally, by Paul Carey, MEUSA Multimedia Director
Fourth photo: Unite for Marriage rally crowd, Washington DC, by Paul Carey, MEUSA Multimedia Director
All eyes will be on Washington later this month, as the United States Supreme Court has announced that on September 29, they will consider whether to hear one or more of the federal marriage equality cases in their current term. If they take one of the cases, we could have a nationwide marriage ruling as soon as June 2015.
We reflected on the road that has led us to this point as we sat in the courtroom here at the 9th Circuit in San Francisco, where we recently attended oral arguments in the federal marriage equality cases for Nevada, Idaho, and Hawaii. Inside the courtroom, the lack of credible anti-equality arguments was evident, as demonstrated by the dubious analogies to sticks and balls repeatedly used by Monte Stewart, the lawyer arguing in favor of anti-marriage equality laws in both the Idaho and Nevada cases. If you weren’t there, you might have been confused by news items such as this one from Boise State Public Radio: “Stewart mentioned crystal balls several times during the hour long hearing”—a surreal turn that felt to those in the courtroom like the other side had clearly run out of ideas.
Outside the courtroom, we were reminded of the true meaning of love and marriage when we learned there are newlyweds in our family. The announcement came, not from one of our younger siblings or cousins, but from my 93-year-old uncle who married the wonderful woman who has spent the last four decades by his side. At the same time as the anti-equality lawyers before the 9th Circuit were arguing that straight couples will no longer wed or stay married once same-sex couples are able to marry, my uncle and aunt proved the opposite to be true. They married for the exact same reasons that all couples marry: to love, comfort, honor, and keep each other in good times and in bad, in sickness and in health.
Upon hearing their wedding news, one of our cousins remarked on the common themes that unite us in matrimony, whether gay or straight, young or old: “So sweet that they have decided to get married at this late date! Also wise, since it will give them the rights they deserve…just the same rights that same-sex marriage advocates are rightly fighting for.”
As a family, we see many parallels to the current marriage equality debates taking place today in courtrooms and dining rooms all across America. As a child of interracial parents who grew up in the 1960s, I know exactly what Judge Posner meant when he wrote earlier this month in the 7th Circuit marriage cases that asking interracial couples in the 1960s to accept “same-race unions” instead of marriage would have been “considered deeply offensive, and, having no justification other than bigotry…”
We are very thankful that the United States Supreme Court ruled in 1967 that interracial couples have the freedom to marry all across our country. Today, as a gay American married in California, I know the time has come for the Supreme Court to rule that LGBTQ Americans in all 50 states have the basic human right to marry the person they love. We hope that as soon as next summer the justices do exactly that.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008.
Never before has the legal case for nationwide marriage equality seemed stronger than at the recent Federal Court of Appeal’s argument in the Indiana and Wisconsin marriage cases. For nearly two hours, the Seventh Circuit panel of three judges, appointed by Presidents Reagan, Clinton, and Obama, tore gaping holes in every argument the states’ attorneys defending Indiana and Wisconsin’s marriage bans offered.
The states’ attorneys sometimes appeared at a loss for words or flustered, and the Wisconsin attorney even tried, unsuccessfully, to evade answering one of the Court’s questions by suggesting his time was up when it wasn’t. One judge referred to various arguments the states made as “feeble,” “absurd,” “ridiculous,” and “pathetic.” The states’ attorneys came up with nothing credible to defend the bans. When the Court asked Wisconsin’s attorney how ending the exclusion of LGBT couples from marriage would harm anyone else, he responded: “…[w]e don’t know.”
Perhaps the most important aspect of the argument was the respect all three judges evidenced for the dignity of LGBT Americans and their children. For decades, opponents of equality have slandered LGBT Americans by falsely accusing them of being harmful to children—be it Anita Bryant’s 1970s “Save the Children” campaigns, or the 2008 Proposition 8 campaign. Last year, the United States Supreme Court, in its decision striking down DOMA, held the opposite: anti-LGBT laws, in fact, harm children of LGBT parents.
The Supreme Court stated that DOMA “humiliates tens of thousands of children now being raised by same-sex couples…mak[ing] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives…” The Seventh Circuit went further, with one judge referring to many of the harms that the states’ marriage bans have inflicted on children of LGBT parents as “harrowing” and noting America’s history of “savage” discrimination against lesbian and gay people based on “hate.”
Indiana and Michigan’s attorneys argued that their states could continue to bar same-sex couples from marriage because they claimed the purpose of marriage was to encourage unmarried heterosexuals who engage in sexual activity in which the woman became pregnant to stay together. The Court asked why the states did not criminalize heterosexual “fornication” outside of marriage instead, and it noted that the states’ current laws actually penalize LGBT couples who carefully plan their families.
One judge presented data showing that, in fact, from 1990-2009, years in which the same-sex marriage bans were in place, the proportion of out-of-marriage births increased 68% in Indiana and 53% in Wisconsin, with the out-of marriage birth rate for some demographic profiles over 90%. Noting that the states’ purported policy of banning same-sex marriage to prevent out-of-marriage births was “pretty unsuccessful,” the judge named the states’ argument for what it was, an ”artificial rationale” to exclude same-sex couples from marriage.
On Monday, September 8, the Ninth Circuit in San Francisco hears oral arguments in the Idaho, Nevada, and Hawaii cases. Stay tuned.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008.