Marriage Equality Hangs In The Balance At The Supreme Court

With thirty-seven states now legal proponents of marriage equality (LGBTQ Americans and allies alike) knew it would be just a matter of time before the issue would be brought to U. S. Supreme Court.

But after the long awaited April 28th Supreme Court hearing of Obergefell v. Hodge I was left worried.

Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD) and one of the attorneys arguing in support of the plaintiffs faced a barrage of questions. When Chief Justice John Robert told Bonauto, that her position would “redefine” marriage, adding that “every definition I looked up until about a dozen years ago defined marriage as a union between a man and a woman,” I wasn’t counting on his vote.

“You’re not seeking to join the institution, you’re seeking to change the institution,” Roberts stated.

For a moment during arguments, however, I thought Roberts might be on our side when he raised questions about gender discrimination with John Bursch, one of the attorneys arguing in opposition to marriage equality.

"I’m not sure it's necessary to get into sexual orientation to resolve the case," Roberts said. "I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?"

But when Justice Anthony M. Kennedy, who is usually the swing vote on tough rulings, chimed in stating that the traditional definition of marriage has lasted for “millennia” and changing it would be difficult, my heart sunk.

Kennedy has written all recent decisions protecting gay rights, including the 2003 Lawrence v. Texas, which struck down sodomy laws that targeted gay men, and the 2013   U.S. v. Windsor, which would recognize and provide federal benefits to same-sex married couples in states where their marriages were legal.

Jim Obergefell never expected to be a cause célèbre. 

But when he sued his home state of Ohio for refusing to recognize him as the widower of his deceased spouse the lawsuit made its way to the highest court in the land. Jim Obergefell, 48, the lead plaintiff in the four marriage equality cases collectively known as Obergefell v. Hodge is now one of the lives hanging in the balance.

In 2011 Obergefell’s partner, John Arthur, of 21 years was diagnosed with amyotrophic lateral sclerosis (ALS), a fatal neurological disease. In 2013, just three months before Arthur died they married on a medical plane on a Baltimore airport tarmac following the Supreme Court ruling allowing for official recognition of same-sex marriage. A federal judge ruled allowing John and Jim’s marriage be recognized on Arthur’s death certificate, but Ohio ruled against it because the Buckeye State banned same-sex marriage in 2004.

Solicitor General Donald B. Verrilli, Jr., arguing for the same-sex couples on behalf of the Obama administration stated that withholding marriage from same-sex couples repeats the same discrimination the courts struck down in 1967 concerning interracial marriages.

Similar to Obergefell, Mildred Loving never expected to be a cause célèbre, either.

She and her husband, a white man, were indicted by a Virginia grand jury in October 1958 for violating the state’s ‘Racial Integrity Act of 1924.” In commemorating the 40th anniversary of Loving v. Virginia Mrs. Mildred Loving on June 12, 2007, wrote:

When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight...I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. I am proud that Richard's and my name are on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.

On June 12, 1967, Chief Justice Earl Warren delivered the opinion of the high court in the Loving vs. Commonwealth of Virginia stating:

Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law.

The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. These convictions must be reversed.

The Supreme Court case of Obergefell v. Hodge presented oral arguments on two basic questions:

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Marriage is an inalienable right. 

But at present, according to the Williams Institute, “60,000 married same-sex couples live in states with bans on marriage for same-sex couples.” While 61 percent of Americans today support same-sex marriage compared to 64 percent who opposed it in 2004 according to a recent ABC poll.

As Obergefell v. Hodge was being debated a U.S. Supreme Court Rally was taking place as a steady stream of LGBTQ speakers shared their compelling narratives of how marriage equality would  give them rights, benefits, family security and full citizenship heterosexual couples and families have.

By closing arguments on April 28 the SCOTUS blog wrote, “No clear answers on same-sex marriage.”

Democracy can only begin to work when those relegated to the fringes of society can begin to sample what those in society take for granted as their inalienable right. Sometimes for that to happen people, like Supreme Court Justices, have to step in to make the democratic process work for us all.

I hope before the court renders a decision, that all nine Supreme Court justices have attended at least one same-sex wedding, because the experience would help them see that real lives are at stake.

While we have until June before the Supreme Court renders their decisions, I also hope the Court understands that we LGBTQ Americans merely want what heterosexuals Americans have always been able to take for granted.

Photo via flickr user Evonne

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