With thirty-seven states on board with marriage equality, our legal advocates, community, and allies knew it would be just a matter of time before the justices of the U.S. Supreme Court would decide the issue. At the end of the long awaited April 28th Supreme Court hearing of Obergefell v. Hodge I’m worried.
Jim Obergefell and the other plaintiffs may worried be too. Obergefell is not an activist of any sort, never expected to be a cause célèbre, But when he sued his home state of Ohio for refusing to recognize him as the legal widower of his deceased spouse the lawsuit made its way to the highest court in the land. Obergefell is the lead plaintiff in the four marriage equality cases collectively known as Obergefell v. Hodge. His is now one of lives hanging in the balance.
In 2011 Obergefell’s partner John Arthur was diagnosed with amyotrophic lateral sclerosis (ALS) , a fatal neurological disease. In 2013, just three months before Arthur died and following the Supreme Court ruling that allows for official recognition of same-sex marriage, they married on a medical plane on a Baltimore airport tarmac. A federal judge ruled that their marriage be recognized on Arthur’s death certificate. The state of Ohio, however, refused to recognize the marriage because the Buckeye State banned same-sex marriage in 2004.
Mildred Loving never expected to be a cause célèbre, either. But she and her husband, a white man, were indicted by a Virginia grand jury in October 1958 for violating the state’s ‘Racial Integrity Act of 1924.”
On June 12, 1967, Chief Justice Earl Warren delivered the opinion of the high court in the Loving vs. Commonwealth of Virginia:
“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. These convictions must be reversed.”
In commemorating the 40th anniversary of Loving v. Virginia Mrs. Mildred Loving on June 12, 2007, wrote, “When my late husband, Richard, and I got married in Washington, DC in 1958, it wasn’t to make a political statement or start a fight. We were in love, and we wanted to be married. Not a day goes by that I don’t think of Richard and our love, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. I am proud that Richard’s and my name are on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight, seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.”
The Supreme Court case of Obergefell v. Hodge presented oral arguments on two basic questions:
1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Marriage is an inalienable right. At present, according the Williams Institute “60,000 married same-sex couples live in states with bans on marriage for same-sex couples.”
When society narrowly defines marriage as the union between a man and a woman, it is not only policing the sexual behaviors of LGBTQ people, but society is also policing the sexual behaviors of heterosexuals. Handcuffing marriage to a heterosexual paradigm merely chokes its possibility of ever flourishing and lasting, especially as societies are beginning to understand the fluidity of gender and sexual identities as well as the constant changing configuration of family units.
As Obergefell v. Hodge was being debated a U.S. Supreme Court Rally was taking place with a steady stream of LGBTQ speakers sharing their compelling narratives of how marriage equality would give them rights, benefits, family security and full citizenship heterosexual couples and families have.
By closing arguments on April 28 SCOTUSblog wrote “No clear answers on same-sex marriage.”
Democracy can only begin to work when those relegated to the fringes of society can begin to sample what those in society take for granted as their inalienable right. And sometimes for that to happen people, like Supreme Court Justices, have to step in to make the democratic process work for us all.
I hope before the court renders a decision all nine Supreme Court justices have attended at least one same-sex wedding, because the experience would help them see that real lives are at stake.
While we have until June before the Supreme Court renders their decisions, I also hope the Court understands that we LGBTQ Americans merely want what heterosexuals Americans have always been able to take for granted-marriage.
