THE BLOG
06/27/2013 01:29 pm ET | Updated Feb 02, 2016

Some Justice for the Second Sexuality

As we all celebrate the Supreme Court's landmark rulings on marriage equality, I have been wondering how it is possible that Justice has moved slowly and swiftly at the same time.

It has been slow because, as the old legal maxim reminds us, justice delayed is justice denied. For each day that DOMA was permitted to remain in existence and to codify blatant discrimination against same-sex couples, justice was denied. For each day that same-sex couples were denied tax benefits, estate rights, and numerous other rights, justice was denied. And, for each day that children of same-sex couples, like myself, were made to feel inferior because our families could not be recognized by the federal government, justice was denied. Justice is still being denied in the vast majority of the states in this country were mini-DOMAs have been enacted and where other discrimination is allowed to persist, such as employment discrimination or adoption discrimination.

On the other hand, it is truly breathtaking how quickly the law of the land has changed. What was once radical and fantastic is now reality. When I began law school in 2000, laws criminalizing sex between consenting adults of the same sex were still considered constitutional. In fact, in an exercise I will never forget, my first-year law school class was assigned to draft appellate briefs arguing the issue of whether such sodomy laws were constitutional. Beyond being stunned that such laws were still on the books, once I understood how equal protection claims were analyzed it was obvious to me that such laws could not be sustained. And, I recall attending a lecture by Evan Wolfson, founder and president of Freedom to Marry, and thinking how wonderfully radical his vision was. I will also never forget the feeling of elation, when, just as I was graduating law school in 2003, the Supreme Court in Lawrence v. Texas invalidated a Texas sodomy law and thereby made same-sex sexual activity legal throughout the country.

And yet, DOMA loomed over everything. For each state-level victory, DOMA guaranteed that marriage discrimination would continue on the federal level. And, from its inception DOMA was so patently unconstitutional that the only conclusion to be drawn was the one Justice Anthony Kennedy articulated: DOMA was enacted based on Congress' desire to harm gays and lesbians and there was no legitimate basis for the law. Indeed, DOMA flew in the face of the crucial doctrine of Full Faith and Credit whereby our states respect the laws of other states in this great Union. In the family law sphere, this means that states recognize marriage licenses, divorce decrees, custody determinations, and other similar court orders or legislative determinations made by other states, even if they differ from the subject state's laws or policy. But, an irrational and patently illegal carve-out was made to this doctrine for same-sex marriages.

But, now here we are. DOMA is dead. Justice has been done.

However, my joy is tempered by a few things. First, it took a long time for the right case -- with the right set of facts and a sympathetic plaintiff -- and the right set of Justices with the courage to reach the right result. Second, there is still much work to be done, apparently on a state by state basis until full marriage equality is attained (unless, as Justice Scalia fears, the right case comes along again). Finally, and I truly hate to admit this, Justice Scalia was absolutely correct to call out the majority opinion in United States v. Windsor for failing to articulate what level of scrutiny should be applied to discrimination based on sexuality -- a central issue in the case. The majority failed in their duty because had they explicitly called for a higher level of scrutiny for these laws justice and fairness would have been greatly advanced. A stronger, better articulated opinion would have been more valuable.

But, nevertheless, we should all be rejoicing, for whenever justice is done and a wrong is righted, it smells as sweet.