|Let freedom ring!|
Opposition to marriage equality came from not only those who sought to roll back gay rights, but also from those who, though in favor of gay rights, were either opposed to marriage itself, or felt that the gay community should be pursuing other goals. If you had asked me in 1995 if employment protections or marriage equality were more achievable, I would have said, “no doubt about it, employment.” I’ve seen arguments that we should have gone for ENDA. Employment protections are important, but during the same time that Obergefell moved through the courts, the Republicans have been in control of Congress. The Employment Non-Discrimination Act has no chance of budging in a Republican-controlled Congress. In other words, if all our efforts for marriage equality in the last five years had been applied to employment non-discrimination for LGBT people, we’d be in the same place on employment, and still not have marriage equality.
Not, at this point, that bans on same-sex marriage personally affect me. The last time that I had to deal with non-recognition of the marriage rights same-sex couples was in 2011, as I returned from a trip to China. The U.S. Boarder official asked me if I had travelled with someone. “Yes, my husband.” She then informed me that I did not have a husband. “I did this morning.” (Yeah, welcome to the Land of the Free, huh?) In any case, soon the order came down that DOMA did not apply to waiting in lines when coming back into the country. Our next trip, the exchange went like this: “Are you a couple?” “Yes.” “Welcome home, gentlemen!” But I digress.
It meant a lot for the people who were in the remaining states without marriage equality, or for those who traveled to or worked in such states. The New York Times recently had an article about an Ohio couple who had the problem that only one of them could be the parent to their children. Ohio did not recognize their marriage (from another state), and they kept running into problems as one of them was a legal stranger to the children they are raising (I hope the Times follows up, since the state had solutions available to opposite-sex married couples in this situation). This is a way in which marriage rights percolate through all sorts of other rights.
In his decision, Justice Kennedy noted that one of the plaintiffs had served in the military, asking he and his husband
now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage.Sadly, Justice Roberts pooh-poohed the whole question of dignity, stating that
There is, after all no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution.Oddly, in questioning whether it’s a good idea to be “allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental,’” Roberts seems to go against a decision from 1934. It isn’t the current court that suddenly decided with no justification that marriage is a fundamental right, but there’s a long tradition of the Supreme Court describing marriage as a fundamental right. And oddly, and I think in a dog whistle to conservatives, Roberts spends two paragraphs alluding to Dred Scott. Years back, I was surprised when I found that abortion opponents made frequent reference to Dred Scott. I can only assume that we’re seeing an echo of this here. It’s ironic, since Dred Scott denied the humanity and rights of the eponymous plaintiff, while Obergefell confirms the humanity and rights of its plaintiff.
One of the strangest things about the Obergefell dissents is their reliance on undermining the authority of the judiciary. Roberts makes four references to this being a decision made by unelected judges. In Justice Scalia’s defense, he acknowledges that the entire bench is unelected, and it becomes, for him, a “committee of nine unelected lawyers.” (He has also noticed that the Supreme Court is currently lacking any Protestants, and in particular Evangelical Christians.) Justice Alito goes for a smaller and specific number:
To prevent five unelected Justices from imposing their personal view of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “"deeply rooted in this Nation’s history and tradition.”” Washington v. Glucksberg, 521 U. S. 701, 720–711 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights.Yes, but no one is arguing that same-sex couples ought to have their own special type of marriage. It’s just marriage, the same right that opposite-sex couples have enjoyed. In 2015, we don’t conceive of such a thing as “black voting” or “female voting,” even though these were once hotly contested rights, viewed in exactly that manner (I saw one piece written by an anti-suffragist who suggested that women be limited to matters suitable for women, such as boards of education, but none of that other stuff). Just as we now know it would be wrong to have race- or sex-based limitations on voting (sadly, there are some not included in my “we” who try to slip these things back in), the day will come when we see it not as same-sex or opposite-sex marriage, but just marriage.
The battle isn’t over, not even close. But today we saw a significant victory. It’s my hope that from here we will go on to help make this a more perfect union.
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