THE BLOG
06/10/2013 12:46 pm ET | Updated Feb 02, 2016

Out and About: LGBT Legal -- While We Wait, Musings on Marriage

I don't know about you, but I have never been good at waiting, especially when it comes to something I really want.

I find myself contemplating this practice of waiting while we prognosticate, speculate and take bets on what the United States Supreme Court will say about marriage equality sometime this month. It all feels a bit like the waiting that comes during Lent, a time of yearning, fear and excitement, of letting go to move forward as if it's all a part of the pilgrimage we as a society must make in order to evolve and transform.

So while counting the days until the Supreme Court hands down its decisions in the Hollingsworth v. Perry case involving California's Proposition 8, the voter-approved ballot initiative that eliminated the right of same-sex couples to marry in California, and the United States v. Windsor case involving a challenge to the federal Defense of Marriage Act (DOMA), which defines marriage exclusively as between one man and one woman, I've been thinking about marriage and what these cases are really all about.

In March, during oral arguments before the Supreme Court, we heard about issues of standing and jurisdiction and whether these cases were properly before the high court; implications of narrow to broad rulings concerning the right to marry; standards of judicial review to be applied to the cases; and canons of federalism and where to draw the line on states' sovereignty for their laws pertaining to marriage and family, all of which are important legal considerations for the court.

But somewhere buried among these legal issues, in the hands of the justices lie the lives of couples who simply want to consecrate their love and commitment in marriage before family, friends and community, just like opposite-sex couples have been doing since time immemorial.

During the argument in the Proposition 8 case, Chief Justice John Roberts said that same-sex couples in California have broad legal rights and benefits pursuant to that state's domestic partnership laws. The chief justice then said, "It's just about the label." The marriage label, that is. Respectfully, the chief justice's remark ignores the importance of language and the messages that are communicated when people say they are married to each other. It is in language that our lives are created. So, yes, Mr. Chief Justice, it is the label; it is a matter of semantics, of the very meaning of the "M" word. And that "M" word matters.

Last weekend, I attended a beautiful ceremony at an Episcopal church in Westchester County, N.Y. The couple, a husband and wife, married 50 years to the day, were renewing their wedding vows. Their family and community came together to celebrate and support them in this public display of their commitment.

I watched the ceremony, and listened to the rector speak of the love and devotion demonstrated by this couple throughout their relationship. The rector spoke of marriage as an "icon, a place of joy, rejuvenation and love, for each other, and in turn for every other whose life has been touched by this couple and their marriage." Together, the couple went through periods of great challenge when Michelle was diagnosed with cancer and nearly died. Alan was by her side every day, loving her, caring for her.

I could not help but think about the ways that my friends' 50-year marriage was like that of Edith Windsor and her spouse, Thea Spyer.

Edie and Thea were not legally married for 50 years, because this was not an option. But they lived in a committed intimate relationship and married in Canada in 2007. These women were together as long as my friends have been married. Like my friends, Edie and Thea grew together and lived their devotion with enduring love for each other as they bravely faced a life-threatening illness that ultimately took Thea from her beloved Edie. So heartbroken was Edie when she lost Thea that Edie suffered a heart attack, a phenomenon that scientists have attributed to grief from the death of a loved one. My friends' marriage, and that of Edie and Thea, are marriages that serve as inspiration, providing examples for us of how marriage can be and how committed love can change the world. Yet in the eyes of the United States government, Edie and Thea were legal strangers to each other. How can that be?

People often ask me a question similar to that raised by the chief justice's comment: "Why is it so important that same-sex couples be allowed to use the 'marriage' word, especially if they can enter domestic partnerships or civil unions?" In response, I point to language from the Ninth Circuit Court of Appeals' decision in Perry v. Brown, which dealt a blow to California's Proposition 8: "A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partner' does not." The Ninth Circuit held that on the day that the people of California amended their Constitution to eliminate the right to marry for same-sex couples, a constitutional violation occurred, one of such magnitude that it could not be left unrectified.

When in 1965 the Supreme Court of the United States, in the case of Griswold v. Connecticut, determined that there exists under the Constitution a marital right to privacy, the court aptly conveyed the importance of the designation of "marriage." Justice William Douglas wrote in the majority opinion:

Marriage has a unique meaning.... It is the designation of "marriage" itself that expresses validation by state and community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.

As Edie Windsor wisely summed it up, "the word is magic."

In the landmark case Lawrence v. Texas, the Supreme Court struck down state sodomy laws and paved the way for consideration of marriage equality. At that time, no state in the country had yet recognized the right of same-sex couples to marry. Ten years later, gays and lesbians should not be treated as lesser than other citizens in the realm of marriage any more than in the realm of sexual privacy. Indeed, in Lawrence, the Supreme Court said:

The issue is whether the majority may use the power of the State to enforce these views on the whole society through a law that abridges minority individuals' rights. It may not. Without more, moral disapproval of a group, like a bare desire to harm, is insufficient to satisfy a rational basis under the Equal Protection Clause.

This language from Justice Anthony Kennedy's decision in Lawrence is equally applicable to the marriage cases. When it comes to fundamental rights, the Equal Protection Clause does not mean equality for some and not for others. The Equal Protection Clause does not mean one group of people gets to engage in activities such as marriage to the exclusion of another group. When we deprive our fellow citizens of the legal privileges of marriage, we are acting ungenerously, and for no good reason other than to feel entitled, better than a historically disfavored group of people. I have yet to hear a decent articulation of the alleged harm that will befall marriage equality opponents if gays and lesbians are granted the freedom to marry. Nor has there been any legitimate, let alone substantial, governmental interest identified that is furthered by withholding one of life's greatest joys from same-sex couples and their children.

Let's not mince words. Proposition 8 and DOMA are laws rooted in moral condemnation of gay and lesbian Americans. Justice Elena Kagan pointed this out to Paul Clement, the lawyer for the Bipartisan Legal Advisory Group (BLAG), when she quoted from the 1996 report by the House of Republicans that accompanied DOMA. Justice Kagan noted that Congress' rationale for DOMA has its foundation in a "collective moral judgment and to express moral disapproval of homosexuality." And it is even worse than that. The House report goes on to note:

[The] government affords preferential status to the institution of heterosexual marriage ... [because] heterosexuality better comports with traditional (especially Judeo-Christian) morality. ... [Sanctifying same-sex marriage by law] trivializes the legitimate status of marriage and demeans it by putting a stamp of approval ... on a union that many people ... think is immoral. ... It is both inevitable and entirely appropriate that the law should reflect such moral judgments.

This is "rank discrimination," to borrow a phrase from Justice Ruth Bader Ginsburg.

During the oral argument in the Proposition 8 case, Justice Antonin Scalia asked Ted Olson, the attorney for the initiative opponents, when it became unconstitutional to exclude homosexual couples from marriage. Was this some kind of philosophical thought game, in the vein of "if a tree falls in the woods and there's no one there to hear it, does it make a sound?" Was this injustice just before this point in time if the justices are only now "hearing" it? Isn't this the larger issue the Supreme Court is facing? What difference does it make if, as Mr. Olsen noted, society has evolved and only declared the injustice of denying marriage to same-sex couples in the last nine, 10, or 20 years? Somewhere, a long time ago, someone said that marriage is between a man and a woman. He or she made it up, and society adopted and accepted it for a while, but we forgot that it was made up, and instead, this became the "truth."

Justice Ginsburg has spoken publicly about her concern that the Supreme Court may have moved too quickly when it issued its decision in Roe v. Wade, the case that recognized the fundamental right of women to make childbearing decisions for themselves, including abortion. Was she signaling to us that she would not go down this road again with marriage equality, that she and the other justices will exercise restraint on this issue to avoid a similar backlash? I hope not.

Sometimes, waiting is a good thing. It can be a time of discernment, of reflection and silence that creates the space to hear ourselves and the voice of God and provide the guidance we need to direct our actions. But waiting for the sake of postponing the making of important decisions while others catch up to popular thinking is not the same. It adversely impacts the well-being of same-sex couples and our families. Waiting is justice delayed. How many more lives have to be put on hold, and how many more Edie Windsors have to step forward and fight for rights that should no longer have to be fought for if marriage equality is inevitable? If not now, when?

Seventeen years after the House issued that report supporting DOMA and reflecting a collective bias in favor of heterosexual marriage, the times have changed. A May 2013 Pew Research Center poll found that 72 percent of people polled believe that marriage for same-sex couples nationwide is a done deal. Even members of conservative groups that have long expressed disapproval of marriage equality are changing their minds. Why? Because more and more Americans have a gay family member, friend or co-worker. It's yet another example of how the personal and the political are inextricably intertwined.

It is said that justice is blind. In 1967, our Supreme Court determined that justice is also colorblind when it comes to marriage, and states' prohibition of interracial marriage was found unconstitutional. It is time for the court to pronounce that justice is also gender-blind, because marriage equality is the inevitability for a country committed to inclusion, a country that has allowed its heart and mind to be opened.

The views expressed in this blog post are solely mine and are not necessarily those of McDermott Will & Emery, LLP.

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