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.
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,” Bonauto 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 and, 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.”
Not a Novel Social Experiment
Suffolk Law's John Greaney sat on the Supreme Judicial Court of Massachusetts with Marshall and wrote a concurring opinion in the Goodridge case.
Now director of the Macaronis Institute for Trial & Appellate Advocacy at the law school, Greaney said the case 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.”
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.
Former Associate Justice Michael Streit
Former Iowa Supreme Court Justice Michael Streit said the decision in the Varnum v. Brien case, which upheld same-sex marriage, was easy.
“The case wrote itself," Streit said. "History is on our side because of the simple, clear reason of applying constitutional norms in interpreting equal protection under marriage.”
Streit said there was ferocious opposition to his court’s decision. 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.”
Justice Kennedy’s Help
Attorney Paul Smith, who successfully argued the Lawrence v. Texas case before the Supreme Court in 2003, said the decision 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.