The same-sex marriage cases before the U.S. Supreme Court are not about marriage or states’ rights, they are about equality and history, Massachusetts Chief Justice Margaret Marshall told an overflow crowd at the “Lawrence and Goodridge at 10” conference on gay rights held at Suffolk Law School in April 2013.
The national conference marked the 10th anniversary of two critical gay rights cases: Lawrence v. Texas, in which the Supreme Court declared anti-sodomy laws unconstitutional, and Goodridge v. the Massachusetts Department of Health, the 2003 state Supreme Court case that made Massachusetts the first state to allow same-sex marriage. Marshall, the keynote speaker at the conference, wrote the majority opinion in that case.
The morning panelists and event organizers
In addition to Marshall, the conference brought together lawyers who argued and judges who ruled for gay rights in two of the past decade's historic cases and their progeny. They shared their analyses of the movement and their predictions for its future.
“I am absolutely honored, privileged and delighted, personally and professionally, in my heart and my soul, that we are having this event here today,” Suffolk Law School Dean Camille Nelson said in her welcoming remarks. Her enthusiasm was shared by an audience that filled the hall, requiring an overflow room where audience members watched via closed-circuit TV.
Upholding a 200-year Tradition
Referring to the Goodridge case, Marshall told the audience: “My court was doing what it had done for 200 years.” She cited the 1873 case of a brutally beaten runaway slave, when Massachusetts’ highest court chose to “look beyond that narrow claim (assault and battery), to the fundamental issue, making Massachusetts the first state to abolish slavery – an entire social and economic system – by judicial decision.”
The Goodridge decision, similarly, was not about marriage, but about rejecting “the idea of second-class citizens,” she said.
“Were we activist judges who did not understand the ‘difference between personal opinion and the strict interpretation of the law,’ as George W. Bush repeatedly charged? I think not,” Marshall added.
Not a States’ Rights Issue
She urged the U.S. Supreme Court to show courage now; look at more fundamental issues; and not try to frame the case as a states’ rights issue or an issue of the sacredness of marriage.
“This issue has nothing to do with federalism – leaving states the individual right to define marriage. It has everything to do with dignity, equality and, ultimately, the equal protection clause,” Marshall said.
Not a Marriage Issue
“Marriage may be a sacred institution,’ she went on. “But when a state chooses to confer substantial benefits on some of its sacred citizens, but denies them to others, that is a violation that lies at the core of the constitutional guarantee – federal and state – of equality.”
Short, Full History
Goodridge was a breakthrough case in the United States, but not the first to deal with marriage equality. Mary Bonauto, lead lawyer in that case, offered the conference a brief history.
Inspired by the Loving v. Virginia case allowing interracial marriage, same-sex couples filed for the right to marry in the Maryland courts in the 1970s – and lost.
“It was as though men were coming into court asking for a right to be pregnant,” she said. “An impossibility.”
In 1996 the Hawaii Supreme Court opined that denying same-sex marriage was likely to be unconstitutional. The reactive Defense of Marriage Act also came in 1996. Then there were cases in Vermont and, more recently, legislation or cases in New Hampshire, Maine, Iowa, California, Washington D.C., Maryland and Minnesota.
It’s About Love
But it was in 2004, in the wake of Goodridge, when LGBT couples in Massachusetts began to marry (10,000 in the first four years), that Bonauto said, “the fears began to melt away. People could see the joy that attends weddings, that these couples are there because they are committee to one another, that it’s about love.”
But the struggle for gay rights advocates is far from over. While nine states, the District of Columbia, and three Native American tribes allow same-sex marriage, and another six allow some type of civil union, 30 other states prohibit it in their constitutions, and nine in law. Then there's the Defense of Marriage Act prohibiting federal recognition.
Associate Justice John Greaney
Not a Novel Social Experiment
John Greaney, director of the Macaronis Institute for Trial & Appellate Advocacy at the law school, sat on the Supreme Judicial Court of Massachusetts with Marshall and wrote a concurring opinion in the Goodridge case.
The case, he said, not only established a state-level precedent, it also “showed that the message of marriage equality had a foundation in law and should not be considered as a novel social experiment.”
Judge Vaughn Walker
Building a Case
Fellow panelist Vaughn Walker, a former federal District Court Judge in California, agreed, noting the importance of trial records for building cases that eventually go before the U.S. Supreme Court.
“Trial record is a crucial aspect and ingredient of any process of social change through our legal system. We shouldn’t lose sight of that,” said Walker who upheld same-sex marriage rights in the Perry v. Brown challenge to Proposition 8 in California.
Associate Justice Michael Streit
Michael Streit, a former Iowa Supreme Court justice, said the decision in the Varnum v. Brien case, which upheld same-sex marriage, was easy: “The case wrote itself…. History is on our side because of the simple, clear reason of applying constitutional norms in interpreting equal protection under marriage.” Streit also noted the ferocious opposition to his court’s decision, typical of opposition to similar rulings around the nation. Streit lost a retention vote following the Varnum case, and received hate mail. He quoted from one handwritten letter: “Hitler treated queers the way they should be treated – in the gas chamber.”
Mary Bonauto, Dale Carpenter, and Paul Smith
Justice Kennedy’s Help
Paul Smith, who successfully argued the Lawrence v. Texas case before the Supreme Court in 2003, said the decision in that case set the stage for severely restricting arguments against same-sex marriage. Specifically, Smith said, the decision written by Justice Anthony Kennedy recognized same-sex relationships as “just as valuable, just as important, as everybody else’s,” Smith said.
Opponents in the most recent Supreme Court case, he contended, found their arguments limited to 1) same-sex families are not good for children (“factually false,” Smith said) and 2) it’s harmful to the children of heterosexual couples. He said that the reasoning of this argument was convoluted: Same-sex marriage will discourage heterosexual marriage and therefore produce more illegitimate children.
Charles Cooper’s Honesty
Dale Carpenter, an author and law professor at the University of Minnesota Law School, agreed with Smith that there were few arguments left for same-sex marriage opponents.
“Charles Cooper (who defended California’s Proposition 8 before the Supreme Court) has to be among the most honest lawyers in the nation,” Carpenter said. “When Justice Sotomayor asked him if there were any other rational arguments in the case, he just said, ‘No.’”
First Lady Diane Patrick introducing Jabari Asim
Black Community and Same-Sex Marriage
An "overlap" is emerging between LGBT groups and communities of color, according to Jabari Asim, editor of The Crisis magazine, the oldest black magazine in the nation, and keynote speaker at the conference luncheon.
It’s slow, but it’s happening, he said, noting the LGBT groups, the NAACP and other black and Hispanic groups have come together to protest New York City’s stop-and-frisk crime-control strategy. And the national NAACP supports marriage equality, although some of its local chapters do not.
The Church Challenge
The LGBT community faces resistance in some black churches, but then, Asim notes, so did the civil rights movement, although it couldn’t have succeeded without church support.
He quoted one black lesbian activist as saying, “They (the churches) love us, they just think we’re going to hell.”
While the national Baptist convention still affirms a traditional view of marriage, some prominent black ministers are speaking out, including the Rev. Jeremiah Wright, President Obama’s one-time pastor in Chicago, who was among the first black pastors to welcome gay worshippers to his church. And others – such as rapper Jay Z – also are supporting gay rights.
“Against the backdrop of new coalitions forming among groups long held by some to be incompatible, against the apparent erosion of deeply rooted homophobia,” Asim said, “we can see the vaunted vanguard of black America scrambling to keep up with the multitudes.”