Gay activists are feeling optimistic about 2015. The case for marriage equality was argued before the Supreme Court in April and will receive its judgment sometime in June. While the nine justices are deliberating, the LGBT community celebrates for Pride Month. The action in an urgent social drama has paused right at its climax.
In 2013, Ohio resident James Obergefell wed John Arthur, his partner of 20+ years. They flew to Maryland in a mobile hospital unit and spoke their vows on an airport tarmac, because Arthur was battling ALS and because Ohio had banned same-sex marriage. After Arthur's death a few months later, his widower sued the state of Ohio for the right to be listed as Arthur's spouse on the death certificate.
Before it arrived at the Supreme Court, Obergefell's case was consolidated with three similar suits against other states, including one about adoption and another involving veterans' rights. The plaintiffs' case, under the name Obergefell v. Hodges, went before the court April 28.
Put simply, Obergefell asks two questions. First, does the 14th Amendment require a state to license a marriage between two people of the same sex? Second, does the 14th Amendment require a state to recognize a same-sex marriage lawfully licensed and performed in another state? If the answer to question #1 is yes, question #2 is probably moot. To refresh your memory of high school civics, the 14th Amendment is part of the set passed after the Civil War. It basically says that states cannot make a law that curtails the rights of an American citizen or group, or deny to any citizen or group 'equal protection' under the laws.
That phrase 'equal protection' is key to the issue, and the reason gay activists have termed the issue 'marriage equality.' Marriage, they argue, confers certain rights, privileges, and benefits; by banning same-sex marriage, states are treating a class of citizens unequally and limiting their rights. That's what the plaintiffs argued before the justices in April.
In 2011, April DeBoer and Jayne Rowse had adoped three children. As citizens of Michigan, DeBoer had to adopt one child and Rowse the other two. DeBoer's health insurance didn't cover Rowse's children, a significant problem since two of the three kids had special needs. And if one woman were to die, the other wouldn't necessarily get custody of her children. The couple sued to challenge Michigan's adoption law, but their judge advised them to take on the Michigan law banning same-sex marriage instead.
The states' rationale, meanwhile, relies on a recent Supreme Court decision — ironically the one that sanctioned same-sex marriage. This was US v. Windsor, which repealed the Defense of Marriage Act (DOMA). That 2013 case was read as saying a state could define marriage however it wanted. Now the defense argues that if the federal government must recognize each state's right to legalize same-sex marriage, then it must also respect the opposite — the right to ban it.
It's also worth mentioning that Obama's solicitor general made a cameo at the court in support of gay marriage (in legalese this is known as an 'amicus brief'). The administration's view has grown stronger since 2013, when it argued for an incremental, state-by-state approach to marriage rights. Now the administration would like to see same-sex marriage the law of the land. *
In 2011, Drs. Valeria Tanco and Sophy Jesty moved to Knoxville to work at the University of Tennessee. Having wed in New York, the couple realized that their union was not recognized by their new home state. They hoped to have a child together, but learned that only Tanco would be considered its parent. Tanco's only option was to write in her will that, in case of her death, Jesty should adopt the child.
If it only took the Obama administration two years to become more progressive on the issue of gay marriage, that's partly because the country as a whole has changed its attitude — radically. The shift in consensus over same-sex marriage has been dizzying. Only 25 years ago, even queer activists were ambivalent about the issue: they were out and proud, and many viewed marriage with suspicion as a conservative institution.
At the same time, AIDS had forced a generation of gay men to contemplate the legal vulnerability of informal partnerships. Some began to argue that marriage was a legal right no matter the sexuality and that the ban on same-sex wedlock was state-sanctioned discrimination.
DOMA was meant to stifle that argument in its crib. The proposed act said that no state would be required to recognize a same-sex marriage performed in a different state. This 1996 bill was co-sponsored by Sen. Robert Dole, at the time the Republican nominee for president. So another goal was to politicize the issue and force people — especially Democratic politicians — to pick a side. It passed through Congress fairly easily, and was signed into law by President Clinton.
In 2011, high school sweethearts Ijpe DeKoe and Thom Kostura tied the knot in New York City. DeKoe had traveled across the Hudson from Fort Dix, NJ, prior to his deployment in Afghanistan. Now he's stationed at an Army Reserve base in Millington Tennessee, and lives with Kostura in nearby Memphis. When Sgt. DeKoe is on base, he's married; at home he's single.
As recently as 2004, politicians were tying themselves in knots over the subject. In the Democratic primary, Dean, Kerry, and Edwards all supported civil unions but opposed same-sex marriage even though they condemned a constitutional amendment to ban it. But by 2012, the situation was reversing: some Republican candidates were strongly opposed to same-sex marriage, but others (like the eventual nominee Mitt Romney) hedged.
That said, this Supreme Court decision will probably be 5 to 4, one way or the other. The swing vote is Justice Anthony Kennedy. In the past, he has cast the decisive vote in key rulings like the repeal of DOMA and a 2003 decision that decriminalized sodomy in Texas. On Obergefell v. Hodges, he might fret at the historical novelty of same-sex marriage. Or he might view wedlock as encouraging family stability, regardless of sexuality. Any prediction of Kennedy's decision would be an informed guess based on psychology more than civics. But most pundits are predicting a victory for the plaintiffs and marriage equality. *
In 2015, the nine justices of the Supreme Court of the United States heard the arguments on same-sex marriage. Lawyers for both sides had presented their positions calmly. Then, as the solicitor general fielded a question from the bench, a protester stood from the audience to shout, "You'll burn in hell! Homosexuality is an abomination of God!" The court's officers quickly stepped in and escorted the man, still raving about fire and brimstone, from the courthouse.
And there's reason to hope. In the two years since the Supreme Court repealed DOMA, the number of states allowing gay marriage has quadrupled from nine to thirty-seven (plus Washington DC). Public support for marriage equality is measured at around 60% of Americans.
As gays and lesbians have embraced their sexuality more openly, homosexuality has become more familiar, more acceptable, and finally more conventional in America. And same-sex marriage is starting to be seen as strengthening a traditional value rather than undermining it. Whatever the Supreme Court decides this month, marriage equality is an idea whose time has come.