For many who have lived, breathed, and fought for a day like yesterday, what the Supreme Court delivered early Wednesday morning as it struck down the Defense of Marriage Act was an articulation of the key message of Marriage Equality: married same-sex couples and their children are entitled to the same recognition, protection, and benefits under the law as is granted to any other couple. Paraphrasing Paul Katami, one of the plaintiffs in the case against California's Proposition 8, the cases echoed the words inscribed above the entrance to the Supreme Court Building: Equal Justice Under Law. But looking more carefully at that phrase we see that what they promise is not "Equality," but "Equal Justice." Decisions rendered on other cases earlier in the week drive home what is at stake in this distinction.
As we know, this same court by the same margin, 5-4, found a key section of the Voting Rights Act of 1965 to be unconstitutional, and thus rendered it for all intents and purposes non-operational, until and unless a remedy can be found. Ironically, this ruling which has been a gut punch to so many who fought for and fight for civil rights is also predicated on a theory of equality -- a claim that the VRA singles out certain jurisdictions for special scrutiny and a parallel claim that the achievement of "near parity" between percentages of black and white voters and other indicators of access shows the goal of equality has been achieved. But,returning to the words that grace the Court, is this ruling one that achieves justice?
The distinction between equality and justice is at the heart of these two decisions. Equality demands that each person be treated impartially, that laws not be applied disparately based on prejudice and discrimination against any aspect of who a person is. Justice, on the other hand, requires a different approach -- a recognition that sometimes measures must be taken on behalf of those who would otherwise find themselves subject to a disparity of political, social, or economic power and at a disadvantage under the law.
These different aspects of law, and the role each of them plays, are emphasized in the Torah. Equality under the law is reflected in the mandate in Deuteronomy 16:19 that judges must adjudicate "without recognition of faces," with no prejudice for or against the rich or the poor. Justice, however is found in the very next verse: "Justice, justice shall you pursue," a formulation that calls for a more personal and urgent confrontation with injustice. Elsewhere, equality is the basis of the principle that "there shall be one law whether for citizen or stranger," but justice echoes in the attention to be paid to the stranger's plight along with that of the widow and orphan.
How can they be reconciled? Equality is a basis of a fair society to strive for and to celebrate as a marker of inclusion. Equality allows us to put on the famous blindfold in adjudicating law, because each of us will be respected without regard to race, creed, sex, how we love or whom we choose to marry. But justice demands we take the blindfold off so we can see each other and learn about one another with an eye toward seeing what is yet to be made right.
The Court established a landmark decision on Wednesday, for the first time granting to gays, lesbians, bisexuals and their children a full right to equal protection if they are in states in which they can get married. However, when Justice Kennedy writing for the majority recognizes that marriage through its "responsibilities, as well as rights enhance[s] the dignity and integrity of the person" we see that there is more work to be done before the LGBT community achieves justice throughout this country. Even more so does the court's other decisions based on a perception of equality under the law regarding race call out for justice, justice to be pursued. Only then can our nation safeguard dignity and liberty for all through the promise of "Equal Justice Under Law"