Friday, July 03, 2015

Supreme Court Finally Does the Right Thing

Marriage Equality Decision Tops a Roller-Coaster Week


Copyright © 2015 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Standing-room-only celebration at the San Diego “LGBT” Community Center, June 26, 2015

As I’m writing this, it’s been one week since June 26, the day the United States Supreme Court issued its landmark decision in Obergefell v. Hodges, making marriage equality for same-sex couples the law of the land nationwide. Today is Friday, July 3, the eve of the seventh wedding anniversary of my husband Charles and I. We got married on the Fourth of July, 2008, partly because we liked the symbolism of making America’s Independence Day our own Interdependence Day; partly because the room we wanted — the Joyce Beers Community Center in the Hillcrest shopping mall then known as the Uptown District and now called The Hub — was available; and partly because it was a pretty good way to ensure that we would never forget our anniversary.
When I first met Charles in 1982 I was living with a woman (who’s still one of my closest friends and was a witness at our wedding) and neither of us knew the other was Gay. We met at a political reception — which ought to have been a warning of what our lives together were going to look like — and Charles recalls that that night I seemed more interested in talking to his mother than to him. A few months later I had come out as a Gay man and Charles and I briefly saw each other, albeit non-sexually. Then I lost track of him until we suddenly re-met in 1995, began dating, got serious … and have been together ever since.
I first found out about the Obergefell decision on Friday morning, June 26, as I was checking my e-mails and writing my journal as I got ready to go to work. The outcome was hinted at in the subject lines of some of the e-mails in my inbox, and with a certain degree of trembling in my heart I started opening them to see if it was true. Later I logged on to and downloaded the decisions — all 103 pages of them, containing not only Justice Anthony Kennedy’s luminous opinion but the four, count ’em, four dissents the Republican-appointed justices on the losing end had penned.
Those four dissents are perhaps the most remarkable part of the decision. While the Democratic-appointed justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — all joined Kennedy’s majority opinion, the ones on the losing side all felt an urge to write themselves. It’s as if the four dissenters — Chief Justice John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito — needed to play a one-upsmanship game with each other: “You think you hate them? Well, I hate them more!”

Scalia’s Venom

Not surprisingly, given how the Court’s three previous decisions vastly expanding the rights of the Queer community (and I’ve long preferred the still inclusive term “Queer” to the hideous neologism “LGBT,” which Queer humor writer David Sedaris said makes us sound like a sandwich) went, with Kennedy writing the majority opinion and Scalia writing a flamingly rude and sarcastic dissent, Scalia won the one-upsmanship game. Deriding Kennedy’s statement that “the nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy and spirituality,” Scalia writes, “One would think freedom of intimacy is abridged rather than expanded by marriage. Ask any hippie.” Just what decade does Scalia think it is?
Scalia’s statement at the start of his dissent that “the substance of today’s decree is not of immense personal importance to me” is belied by the sheer venom of what he wrote. “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so,” Scalia said. “That resolves these cases. … Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the people ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect.”
It gets worse. Scalia dismisses the court on which he has sat for nearly three decades as “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 Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). … But what really astounds us is the hubris reflected in today’s judicial Putsch.” For some reason, any case upholding equality for Queer Americans seems to evoke from Scalia German words used by such defenders of liberty and individual rights as Bismarck and Hitler. When he dissented from Kennedy’s 2003 Lawrence v. Texas opinion striking down laws criminalizing sex between same-sex partners, Scalia wrote that the court majority had “mistaken a Kulturkampf [culture war] for a fit of spite.”
And in the final paragraph of his dissent, Chief Justice Roberts seemed bound and determined to match Scalia in sheer snottiness. “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Roberts wrote. “Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

“Original Intent” vs. “Living Constitution”

Justice Kennedy’s majority opinion answers Roberts’ preposterous charge that the court’s decision has “nothing to do with” the Constitution. “The nature of injustice is that we may not always see it in our own times,” he wrote. “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.”
It’s a debate that’s been going on both in and around the United States Supreme Court virtually since the Court’s first justices were appointed by President George Washington. Scalia’s so-called “original intent” or “originalist” view argues that the court should base its decisions on a strict reading of the actual words written into the Constitution by the Founding Fathers and the people who came after them — including John Bingham, the Republican Congressmember from Ohio who was the principal author of the 14th Amendment. Since it’s highly unlikely anyone in the Congress that passed the 14th Amendment, or the states that ratified it, even thought about Queer people as a class (the term “homosexual” as a name for something a person was, rather than for sex acts a person did, wasn’t coined until 1865), much less thought that the 14th Amendment would protect the right of men to marry men and women to marry women, Scalia and his fellow “originalists” said the court was prohibited from construing it that way now.
Kennedy’s opinion is an example of a contrary view of constitutional interpretation called the “Living Constitution.” It argues that as our understanding of the world around us and of our own natures grows and changes, what we think of as fundamental freedoms also must change. In 1896 the Supreme Court ruled in Plessy v. Ferguson that imposing segregation on African-Americans — forcing them to study in separate schools, eat in separate restaurants, pee in separate bathrooms and travel on separate railroad cars — didn’t violate their right to “equal protection of the laws” as long as the facilities were equal (though in fact they weren’t). In 1954 the Court ruled in Brown v. Board of Education that this was hogwash, that “separate educational facilities are inherently unequal.” What changed? Our understanding of the impact of racial segregation on the people subjected to it, white as well as Black, and an increase in our overall level of compassion as a society that made segregating African-Americans seem as indefensibly evil as enslaving them.
Not, of course, that this change in understanding and compassion was at all spontaneous. It was well planned for, organized and fought for by activists, white as well as Black, who joined together to challenge the idiotic prejudices behind segregation and push both government and private businesses to treat people equally, regardless of color. Indeed, the most intense period of civil rights activism in U.S. history came in the 10 years between the Supreme Court’s Brown ruling in 1954 and the passage of the U.S. Civil Rights Act in 1964. African-American leaders — including some who distrusted and even hated each other — knew that the Supreme Court had not given them equality. At best it had given them a hunting license for equality; it was up to them to bring down the beast of racism and turn equality from a judicial promise to an on-the-ground reality.

Reality and the “Brandeis Brief”

Closely allied to the idea of the “Living Constitution” is one first propounded by attorney Louis Brandeis, who from 1890 until 1916 (when President Woodrow Wilson appointed him to the Supreme Court himself) radically changed the idea of how appellate courts in general and the Supreme Court in particular should handle cases. In addition to being the first attorney to argue that the U.S. Constitution gave people a “right to privacy” — which would later become the heart of Court decisions allowing women to use birth control and abortion — Brandeis said that justices shouldn’t base their decisions on crabbed, restrictive readings of the founding documents. Instead they should look at how their rulings played out in the real world.
A typical “Brandeis brief” — a phrase which entered the legal vocabulary to denote cases presented this way long after Brandeis himself died in 1939 — might have a page or two on his legal theory of the case, and hundreds of pages of social-science research and other hard evidence of how workers’ health and safety, the environment or civil rights would be affected by the Court’s ruling. The fact that the Supreme Court’s marriage equality decision is called Obergefell is itself an example of the Brandeis tradition. Though the case the court ruled on was consolidated from four lawsuits, each brought in a state that didn’t permit same-sex couples to marry, James Obergefell was picked as the lead plaintiff because he had the most moving backstory — and the most compelling one in terms of demonstrating the evil of barring same-sex couples from marrying. As Justice Kennedy put it in his opinion:

Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems ‘hurtful for the rest of time.’ … He brought suit to be shown as the surviving spouse on Arthur’s death certificate.

That’s about as heart-rending a story as you could imagine — and as vivid a justification for ruling that the 14th Amendment’s guarantees of “equal protection under the law” and “due process of the laws” require American states to give legal recognition to the marriages of same-sex couples. Ohio basically said to James Obergefell that he had no legal right to his relationship with John Arthur — not as his husband, and not as his widower either. I think much of the abrupt turnaround in public opinion on marriage equality has come from just such stories: not only the Ohio couple whom the state insisted in separating not only in life but even in death; the Michigan plaintiffs April DeBoer and Jayne Rowse, who out of both love and public spirit took children with “special needs” into their home and then found that they could not legally adopt them as a couple; and Army Reserve Sergeant First Class Ijpe DeKoe, who fought for the U.S. in Afghanistan and then found that his husband, Thomas Kostura, whom he’d married in New York before DeKoe was deployed, ceased to be his husband — or any legal relation at all — when they returned to DeKoe’s home state, Tennessee.

A Beginning, Not an End

It’s indicative of how quickly Americans’ attitudes towards same-sex marriage have changed in little over a decade: from 2004, when the Massachusetts Supreme Court’s ruling for marriage equality became a cause célèbre and the Republicans pushed through state bans on same-sex marriage and called for a Constitutional amendment limiting marriage to one man and one woman; to 2015, when polls show 62 percent of Americans support marriage equality and Wisconsin Governor (and undeclared Republican Presidential candidate) Scott Walker’s call for a Constitutional amendment banning it sounds very much behind the times. Even I, a long-time activist on this issue as well as part of a married same-sex couple, didn’t realize we’d come so far that on June 26, 2015 only 13 states still banned Gay and Lesbian couples from marrying.
What makes that even more ironic is that on the date the Supreme Court ruled for marriage equality, in 29 states you can still be denied employment, housing, public accommodations or other civil rights for being Gay, Lesbian and Bisexual, and in 32 states you can still be denied these rights for being Transgender. The Queer community celebrated the lifting of the “don’t ask, don’t tell” ban on Queer people serving openly in the U.S. military — but the ban was only lifted for Gays, Lesbians and Bisexuals, not Transgender people.
It’s important that Queer people, and especially Queer community leaders and activists, commemorate Obergefell v. Hodges as a beginning, not an end, and that we follow the example of the African-American activists who waged their most intense nonviolent direct-action campaigns for civil rights in the decade after Brown v. Board of Education because they realized (as the feminists who worked so hard for Roe v. Wade in 1973 did not) that U.S. Supreme Court decisions are not self-executing. Not only do court decisions expanding the civil rights of oppressed minorities (or, in the case of women, an oppressed majority) happen only when an activist movement has created the groundwork for them, they take full effect only when activists keep up the pressure and force both government and the private sector to live up to their obligations under the law.

“Bitter-Enders” and Corporate America

There’s another parallel between Obergefell and Brown: the bizarre bitter-ender reaction of state authorities, especially in the South, who seem to think they can evade the Court’s decision by sheer force of will. Presidential candidate Mike Huckabee (R-Arkansas) made a bizarre statement that almost seemed to be a call for treason against the Constitution: “The Supreme Court has spoken with a very divided voice on something only the Supreme Being can do — redefine marriage. I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat. … The only outcome worse than this flawed, failed decision would be for the President and Congress, two co-equal branches of government, to surrender in the face of this out-of-control act of unconstitutional, judicial tyranny.”
Texas Attorney General Ken Paxton seemed to be channeling Alabama Governor George Wallace’s defiant attack on the U.S. government in his 1963 inaugural — “Segregation now! Segregation tomorrow! Segregation forever!” — when he told all the county clerks, justices of the peace and anyone else involved in his state government’s marriage process that if they didn’t want to marry same-sex couples and had “deeply religious” reasons for their distaste, they didn’t have to. Paxton, who according to a recent Raw Story dispatch ( is facing first-degree felony prosecution for alleged securities law violations, told refusenik clerks that “numerous lawyers stand ready to assist clerks defending their religious beliefs, in many cases on a pro bono [free] basis, and I will do everything I can from this office to be a public voice for those standing in defense of their rights.”
Of course, there’s the little matter of the oath all public officials in Texas, from county clerks and judges to Ken Paxton himself, have to take to support and defend the U.S. and Texas Constitutions before they can assume — and get paid for — their jobs. But this so-called “moral exemption” is the next step the radical “Christian” Right is pushing to try to blunt the effect of court rulings upholding Queer rights: just because you may have a right to get married, adopt children, buy or rent a home together or do any of the myriad things married couples, straight or Queer, do, doesn’t necessarily mean that a specific person who works for the government is obliged to help you. Legislatures in Indiana and Arizona actually passed bills carving out “moral” exceptions to the civil rights laws so government officials with “deeply religious” objections to homosexuality don’t have to serve Queer people on the same basis as everyone else — but the Arizona bill was vetoed by that state’s Republican governor and the Indiana bill had to be modified because, not progressive advocates, but corporate America rose up against them.
Frankly, that last one scares me. As a long-time democratic socialist, I’m scared when corporations start telling governments what they may and may not do. That’s why, in a week when I was heartened by the Supreme Court’s rulings not only on marriage but the Affordable Care Act as well (John Roberts upheld a badly drafted portion of Obamacare on the basis of a common-sense reading of what the whole bill meant, not a typically crabbed Scalia “originalist” reading of a few words), I was also disgusted by the race-motivated shootings in a Black Sunday school in Charleston, South Carolina and by Congress’s vote to give the president so-called “fast-track” authority to pass “trade” treaties that are really blueprints for a future in which corporations routinely tell governments to what extent they may regulate the economy, the health and safety of workers and consumers, or the environment.
That’s what I meant when I said in my subhead to this article that the week of June 19-26 had been a roller-coaster — so I’m not heartened when companies like Coca-Cola, Maytag, Kellogg’s, Jell-O, Proctor and Gamble, AT&T, Smart Cars and American Airlines attack states that pass “moral exemption” bills and, in some cases, threaten to boycott those states. I’m as scared by that kind of corporate power when it’s being used on behalf of causes I support as I am when it’s used to push causes I oppose, like wantonly polluting the environment, destroying all legal protections for workers and eliminating their right to organize unions.

What We Do Next

So Charles and I move into the bright new world of nationwide marriage equality, joining the U.S. to such traditionally morally conservative nations as Ireland (my father’s ancestral homeland) and Spain. I think we, the Queer community, will do about as good a job with marriage as straight people will have. Some will marry in haste, some will marry for pecuniary instead of romantic reasons, some will marry on whims and divorce almost as fast — and some will form beautiful, enduring relationships.
One thing I hope — and this is a concern that kept me from fully embracing the marriage equality movement for some years — is that we won’t attach the same kind of social opprobrium to Gay and Lesbian people who choose not to marry that straight people who choose not to marry have had to deal with for many years. If people don’t want to form long-term committed romantic relationships — or if they do, but they choose to do without the benefits of marriage, social as well as financial — that’s their business. I still remember New York comedienne Fran Lebowitz joking decades ago that the only people left in the U.S. who wanted to join the military and get married were Queers!
What do we, as a people, as a community, as activists, do next? One thing is to start taking more seriously the idea that we are indeed a community not just of Gay men and Lesbians, but of Bisexual and Transgender people as well. Transgender people have been stuck 30 years behind the social progress made by Gays and Lesbians; they’re still routinely bullied at school, bashed both by criminals and police, discriminated against in housing and employment, made miserable on a day-to-day basis by social prejudice and, all too often, killed just for being who they are. And Bisexual people suffer shameful levels of stigma not only from straight but Queer America — see James Dawson’s commentary, “Gay Men and Biphobia: It’s Real and It Needs to Stop” ( for an especially good commentary on the persistence of anti-Bi prejudice among Gays and Lesbians as well as heterosexuals.
Indeed, one of my personal prejudices against “LGBT” as a designation of our community (aside from its ugliness) is that instead of re-examining some of our foundational assumptions about who Queer people are and how they come to be that way, we simply stuck the letters “B” and “T” on the end of all our organization names without looking at how the very existence of Bisexual and Transgender people challenges the essentialist “born this way” idea of sexual orientation and gender identity. Even Justice Kennedy fell for that one when he wrote in his opinion about the “immutable nature” of Queer people, which “dictates that same-sex marriage is their only real path to this profound commitment.”
I don’t for a moment believe that the reason people should be able to marry others of their own biological (or psychological) gender is that they couldn’t be happy with an opposite-gender partner. All too many Queer people, including me, have lived in reasonably happy long-term relationships with members of the opposite sex, and if it’s possible and legitimate for someone to have a long-term relationship with an opposite-sex partner and then end it amicably because he has realized he’s Gay, or she that she’s Lesbian, why can’t the opposite happen? Why can’t a person who’s lived for years with a same-sex partner meet, fall in love with, and seek to be with — and to marry — an opposite-gender partner instead?
Some of the tasks that remain for the Queer movement include winning the same basic protections the 1964 Civil Rights Act established for other socially oppressed groups — which is what the Federal Employment Non-Discrimination Act (ENDA) would do. Some of our unfinished agenda includes reaching out to, and fully signing onto the struggles of, our Bisexual and Transgender brethren and sistren (and anything-in-betweeneren). Some of the tasks involve broadening our own understandings of ourselves and each other, and being more compassionate not only to the straight majority but to our own. Now that we have been entrusted not only with the rights of marriage but also its responsibilities, we need to be as good as we can be in making our own marriages work, and at the same time acknowledging that marriage equality also means marital diversity and not all married Queer couples are going to look like a same-sex version of a 1950’s sitcom.