Whatever Justice Kennedy decides on the question of whether states can ban same-sex marriage, the name Obergefell will mark this landmark moment in constitutional history. That’s fitting because the remarkable story of undying love between James Obergefell and his late husband, John Arthur, is truly what the battle for marriage equality is about.
The Obergefell story is about two men determined to marry before one of them succumbed to the ruthless disease that was taking his life. It’s a story about a medical plane transporting two men to a wedding on a tarmac in a state that would recognize their same-sex marriage. It’s a story about the pain of the indignity suffered when their home state refused to recognize their love and their marriage on that ultimate of legal documents, the death certificate. It’s a story about seeking “that same ennoblement” bestowed on heterosexual couples.
It’s also a story all-too-familiar within my own family. My sister Suzanne Nice and her partner, Maureen Martin, devoted themselves to the life they built together and sustained for over thirty years. Through the beauty of their quiet harmony, they provided an inspiring model of loving commitment to all of us in their circle of family and friends. Maureen died early in 2014, just months before Illinois began recognizing same-sex marriage.
When Maureen’s death suddenly appeared imminent, we furiously attempted to obtain a medical exemption from Cook County officials to authorize their marriage ahead of the announced date upon which Illinois would begin recognizing same-sex marriages. But the bureaucratic requirements were impossible to meet given Maureen’s deteriorating condition, and time ran out far too quickly. I sat in the funeral home with Suzanne, alongside Maureen’s brother and sister, barely able to endure bearing witness to my sister’s pain as she was forced to acquiesce to a death certificate listing Maureen as single and never married.
As my mind listened to the Justices sparring with the lawyers about the constitutionality of denying same-sex marriage, my heart was with Suzanne and Maureen, James and John, and the countless other devoted same-sex couples who have suffered a similar denial of dignity.
During most of the oral arguments, the dignity of these couples seemed of little import. Instead the justices seemed to be surveying the variety of defenses proffered by the states over the last several decades. These state arguments haven’t changed much. But what has changed is the effect of the Court’s invalidation of the federal ban on recognizing lawful same-sex marriages two years ago. Each of the proffered defenses has been overwhelmingly rejected by the spate of lower court decisions that have followed the Windsor decision.
Here’s a succinct summary: The definitional argument ‒ that the same-sex marriage ban follows the definition of marriage as including only opposite-sex couples ‒ fails on its own circularity and also fails to explain the exclusion. The historical argument ‒ that the ban preserves the tradition of opposite-sex marriage ‒ fails because tradition alone does not suffice to justify denials of liberty and equality. The moral argument ‒ that society disapproves of same-sex marriage ‒ fails because moral disapproval alone is not a sufficient justification for denials of liberty and equality. The doctrinal argument ‒ that heightened scrutiny is not triggered because neither a suspect classification nor a fundamental right is involved ‒ fails because the Court has yet to address these questions and because discrimination against gays sometimes fails even rationality review. The structuralargument ‒ that federalism would leave the question to the states and that separation-of-powers would leave it to the legislature ‒ fails because the judiciary must enforce constitutional protections of liberty and equality even against the legislatures and the states. The positive-right argument ‒ that marriage is a more positive right rather than a negative right ‒ fails because the other marriage precedents have not treated it as such. The slippery slope argument ‒ that same-sex marriage will lead to a parade of horribles such as plural marriage or incest or the like ‒ fails because the law draws lines every day and the duty of the judiciary is precisely to examine the justifications for these lines as each new challenge arises.
Of course, each type of argument was made and rejected when the Court invalidated the ban on inter-racial marriage in Loving v. Virginia. And there remains the technical possibility that the bans on same-sex marriage simply could be invalidated because they facially discriminate based on sex.
Meanwhile, as the justices bandied about these arguments, the lawyer for the states focused on the last-argument-standing as his primary defense. This befuddling argument is the so-called “responsible procreation” defense, asserting that the “State’s entire interest” is to use marriage to bind parents (especially fathers) to their biological children. As the liberal justices insisted, the problem with this argument is that it doesn’t seem to have anything to do with denying marriage to same-sex couples.
But the states’ lawyer may have taken it one step too far by directly denying the relevance of dignity. He insisted that same-sex couples are asking the Court to take the institution of marriage, “which was never intended to be dignitary bestowing, and make it dignitary bestowing. That’s their whole argument.”
Justice Kennedy seemed taken aback, explaining why he was puzzled: “I don’t understand this ‘not dignity bestowing.’ I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage.” And same-sex couples want to have “that same ennoblement.”
Precisely. For couples like James and John, and Suzanne and Maureen, “that same ennoblement” seems so little to ask.
Originally posted in ASCBlog, as part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.
