By Robert Mann
The British novelist Samuel Butler once observed, “People in general are equally horrified at hearing the Christian religion doubted, and at seeing it practised.”
Sometimes I wonder if the same has applied to our notions of freedom and equality — especially when it comes to the rights of gays and lesbians.
From grade school forward, American children learn about the Declaration of Independence and our nation’s noble founding principle, “all men are created equal.”
Much of our history, however, has been the struggle of marginalized and oppressed Americans to secure the right, in fact, that the Declaration seemed to guarantee, but did not. That is the right of every person to be treated fairly and equally under the law, something not enshrined into our Constitution until passage of the 14th Amendment’s Equal Protection Clause in 1868.
The most recent chapter in this struggle will unfold on Tuesday and Wednesday in the U.S. Supreme Court chamber when the justices hear oral arguments in two cases that will decide the constitutionality of a California referendum forbidding same-sex marriage and the federal Defense of Marriage Act.
Depending on how the court rules, gays and lesbians everywhere may finally be recognized as full citizens with the right to marry, just as blacks and women were recognized as full citizens when given their voting rights in 1920 and 1965.
The question here is not so much whether all 50 states will eventually guarantee the right of gays and lesbians to marry.
In time, most likely within the next 20 years, almost every state will grant that right.
It’s not even whether Americans will tolerate gay marriage – they already do. Public opinion is shifting fast in favor of gay marriage.
The question is on what side of history will the Supreme Court justices stand when they decide these cases. Will they rule in favor of inexorable march of freedom and equality, or will they stand astride it?
Fifty years hence, will Americans look upon this court as visionary and just, much like the Warren Court in Brown vs. Board of Education? Or, will we see another Plessy vs. Ferguson, the disgraceful ruling that Brown overturned?
At issue are fundamental human rights.
This isn’t about promoting gay rights. It’s about respecting human rights, one of those being the right of consenting adults to marry whomever they choose.
We no longer prevent whites from marrying blacks, but most states – in the name of preserving the institution of marriage – do prohibit people of the same sex from marrying.
That charge is forcefully and eloquently refuted in a powerful brief filed with the Supreme Court by the two attorneys challenging the California amendment (which the 9th U.S. Circuit Court ruled unconstitutional).
The attorneys are David Boies (former chief counsel to the U.S. Senate Judiciary Committee and the lawyer, who represented then-Vice President Al Gore in Bush v. Gore in 2000) and Theodore Olson (George W. Bush’s solicitor general and an assistant attorney general under President Ronald Reagan, who was Bush’s attorney in Bush v. Gore). Olson and Boies, who once fought over the 2000 election in the Supreme Court, but have joined forces in favor of gay marriage.
They dismiss the notion that granting gays the right to marry changes the definition of marriage.
Writing in their brief, the two note that proponents of Proposition 8
have imagined . . . a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court’s declarations regarding the emotional bonding, societal commitment, and cultural status expressed by the institution of marriage, Proponents actually go so far as to argue that, without the potential for procreation, marriage might not “even . . . exist at all” and “there would be no need of any institution concerned with sex.” . . . Thus, under Proponents’ peculiar, litigation-inspired concept of marriage, same-sex couples have no need to be married and no cause to complain that they are excluded from the “most important relation in life.” Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.
Boies and Olson further observe that Proposition 8 proponents, in their arguments, seem to believe that the case is “a referendum on whether the institution of marriage should exist in the first place, focusing almost exclusively on why it makes sense for the States to grant heterosexuals the right to marry.”
But this case, they argue, clearly isn’t about whether marriage should exist.
Quite the contrary, Plaintiffs agree with Proponents that marriage is a unique, venerable, and essential institution. They simply want to be a part of it—to experience all the benefits the Court has described and the societal acceptance and approval that accompanies the status of being “married.” The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships—their love—of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right. They have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry. Indeed, the only harms demonstrated in this record are the debilitating consequences Proposition 8 inflicts upon tens of thousands of California families, and the pain and indignity that discriminatory law causes the nearly 40,000 California children currently being raised by same-sex couples. The unmistakable purpose and effect of Proposition 8 is to stigmatize gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are “unequal to everyone else,” Romer 4 v. Evans, 517 U.S. 620, 635 (1996), that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” Neither tradition, nor fear of change, nor an “interest in democratic self governance” (Prop. Br. 55), can absolve society, or this Court, of the obligation to identify and rectify discrimination in all its forms. If a history of discrimination were sufficient to justify its perpetual existence, as Proponents argue, our public schools, drinking fountains, and swimming pools would still be segregated by race, our government workplaces and military institutions would still be largely off limits to one sex—and to gays and lesbians, and marriage would still be unattainable for interracial couples. Yet the Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relation in life. “In respect of civil rights, all citizens are equal before the law.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).
Will this Supreme Court agree that “all citizens are equal before the law” — or will it hold that in 2013 it is constitutional to treat a significant percentage of our society as outcasts and deny them access to what Boies and Olson call “the most important relation in life”?
In the long run, it may not matter much what the Supreme Court decides. Public opinion on this issue is changing rapidly.
High-profile Republican leaders like Ohio Sen. Rob Portman and former Vice President Dick Cheney support marriage equality. In February, dozens of other prominent Republican leaders filed a brief with the Supreme Court supporting same-sex marriage.
Most significant for the ultimate victory of same-sex marriage, perhaps, are the views of the young people who will be running the country in a decade or two.
An Election Day exit poll in November 2012 revealed that even a majority of Republicans under age 30 supports same-sex marriage. In fact, according to the pollsters, “the only major demographic that still opposes same-sex marriage is white, evangelical Christians.” Other research reveals similar opinions.
Why this shift in public attitudes? For one thing, we have many more people among us, like Rob Portman, who have gay children or have siblings or close friends who are gay. In a Gallup poll last November 78 percent of those surveyed said they have a “family member, friend, co-worker or acquaintance” who is gay.
An issue that was once abstract and shrouded in fear and ignorance is now in the open, real and very personal.
The whole nature of what it means to be gay is also changing. In 1977, only 13 percent of Americans polled by Gallup said they believed that individuals were born gay or lesbian; as of last November that number was 45 percent.
I like to think that there’s another dynamic at work, identified so well in the Boies-Olson brief.
Americans are fair and decent people. They believe in, but also struggle with, the words of the Declaration: “All men are created equal.”
While they might not be able to quote the words, they also – eventually – come around to embrace sentiment of the 14th Amendment: “[N]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
Ultimately the change in public opinion isn’t about whether Americans support the rights of gays to marry. It’s more about whether every person – black, white, brown, male, female, gay, heterosexual, handicapped, able-bodied – is entitled to equal protection.
It’s about fairness and equality before the law. It’s about our belief – enshrined in our Declaration and in the Constitution — that there are no second-class citizens in America.
So, what will the Supreme Court decide? Who knows?
But this we know, to paraphrase Victor Hugo, “There is one thing stronger than all the armies in the world, and that is an idea whose time has come.”
- Justice Kennedy in the spotlight on gay rights (kansascity.com)
- Gay marriage: The long road to Supreme Court (mercurynews.com)
- Lesbian pundit smacks down Ralph Reed: Procreation is ‘not the point of marriage!’ (rawstory.com)
- Gay marriage in the U.S. Supreme Court: Berkeley couple at the center of historic fight over Proposition 8 (mercurynews.com)
- The man who may decide the future of gay rights (sacbee.com)
- Supreme Court to review same-sex marriage cases as LGBT hope to prevail (guardianlv.com)