Commentary

08.14.15

Clash of Obergefell Opinions Offers Lessons for Ongoing LGBT Equality Battles

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Photo of U.S. Supreme Court, with rainbow flag backdrop

In Obergefell v. Hodges, the U.S. Supreme Court declared that the constitution guarantees the rights and responsibility of marriage to same-sex couples.

Now that marriage equality is the law of the land, let’s take a look at what the clash of judicial opinions tells us of the justices’ perceptions of gay and lesbian couples, and their families, and what they could mean to equality going forward.

Who Are Lesbian and Gay Couples?

Obergefell’s dissenting justices condemned the decision. Chief Justice Roberts accused the five-justice majority of following personal preferences rather than constitutional precedent, and posed this rhetorical question: “Just who do we think we are?”

The question Justice Roberts should have posed is this: “Just who do we think lesbian and gay couples are?”

The justices answered that question by conveying—sometimes explicitly and sometimes subtly—their perspectives on the lives of gay and lesbian couples. And their contrasting views on the inherent value of these lives correlate directly with each justice’s decision to embrace or to reject plaintiffs’ legal arguments for marriage equality.

Love Stories for Our Time

Writing for four other justices who form the marriage equality majority, Justice Kennedy recounted the love story of John Arthur and James Obergefell that transcends John’s death, explained why April DeBoer and Jayne Rowse seek marriage to protect their three special-needs children, and related how Afghanistan war veteran Ijpe DeKoe “served this nation to preserve the freedom the Constitution protects,” but now is denied constitutional protection of his marriage to Thomas Kostura.

Justice Kennedy also explained the financial, emotional, and practical costs that the marriage bans inflicted on the plaintiffs and their children. He made clear that these very real lives, lived by very real people, significantly strengthen mainstream America.

“Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities,” Justice Kennedy opined. “And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”

In contrast, other than a passing reference to their “compelling personal accounts,” none of the more than 19,000 words the four dissenting justices employed to reject marriage equality acknowledged the reality of the lives lived by the 14 couples and two widowers who brought this case, or the severe detriments and burdens they routinely face. It often seemed as if the dissenters were addressing an abstract social-political issue rather than determining the fate of the plaintiffs, their children, and thousands of other Americans.

At Odds

The justices’ contrasting framing of the case’s dispositive issue similarly conveyed just who the justices think gay and lesbian couples are.

The majority asked whether the long-established 14th amendment fundamental right to marry extends to same-sex couples. Following the analysis used in marriage cases brought by interracial couples, fathers behind on child support, and prison inmates, the Court found no meaningful distinction between those classes of opposite-sex plaintiffs and same-sex couples.

The dissenting justices framed the issue as whether the constitution demands recognition of a radically new fundamental right to same-sex marriage. They conclude that it does not because natural procreation occurs only in opposite-sex relationships, and procreation is essential to the survival of the nation.

The dissenters’ reliance on the procreative/non-procreative distinction was nonsensical, and again demonstrated the dissenters’ refusal to acknowledge plaintiffs’ reality. Many Obergefell plaintiffs have children. And, as well documented in this case, thousands of additional same-sex couples are parenting almost 400,000 children in this country.

In sum, what the Court’s opinions tell us is that four of the nine justices on the Supreme Court do not view gay and lesbian spouses as full and equal members of society, or their children as helping to secure the future of the human race. Unfortunately, public reaction to Obergefell confirms that the dissenting justices are not alone in their views.

“In sum, what the Court’s opinions tell us is that four of the nine justices on the Supreme Court do not view gay and lesbian spouses as full and equal members of society, or their children as helping to secure the future of the human race.”

Continuing the Fight

Having fought to make marriage equality the law of the land, the ACLU of Ohio continues to fight for full LGBT equality, including comprehensive nondiscrimination laws at state and federal levels.

We know that our opponents will continue to echo the dissenting justices’ views in Obergefell that same-sex couples and their children are unworthy of full equality.

But Obergefell also reminds us that LGBT equality is achieved first and foremost by educating the public, elected officials, and the judiciary about the real lives lived and real contributions made by LGBT people. And we can do that, because we, like the majority in Obergefell, already know who LGBT people are.

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