LGBT issues

by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law

In the rearview mirror of history, today’s decision in Obergefell v. Hodges will one day appear as obvious and inarguable to almost every American as other landmarks in our Nation’s journey toward equality. Like Loving v. Virginia (1967), which invalidated bans on interracial marriage, and Brown v. Board of Education (1954), which invalidated segregation, Obergefell will stand as a cherished American monument not just to the realization of greater equality, but also to the struggle and sacrifice to get there. And, as with perhaps the most powerful of American monuments ‒ the Lincoln Memorial ‒ Obergefell should not only turn our contemplation to the past, but moreover should direct our reflections to the future.

In the eloquent words of Justice Kennedy, from an earlier decision on which today’s builds, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” What will be those “certain truths” which we cannot see today, just as barely a generation ago a majority of the Court ‒ and no doubt most of the country ‒ deemed the claim of equality for same-sex couples to be, “at best, facetious”? I do not know.

Perhaps future generations will find our failure to address crippling inequality of income and opportunity to be as willfully blind as past generations’ acceptance of separate but equal. Or perhaps our posterity will judge the demographics and conditions of mass incarceration to be as discriminatory and violative of human dignity as we do the machinery of justice under the Ancien Régime. But even if we had the benefit of tomorrow’s hindsight today, would we have the humility and courage to accept it? After all, Justice Harlan’s dissent in Plessy v. Ferguson (1896) spoke from the future, and no one else signed on.

by Lara Schwartz, Professorial Lecturer, American University School of Public Affairs

Much will be written, and is being written as we speak, on the Court’s historic decision in Obergefell v. Hodges, which recognized same-sex couples’ fundamental and equal right to marry. As someone who teaches constitutional law to undergraduates, most of whom have never read a judicial opinion when they enter my class, I will say this: I will hold class outside the day we discuss Obergefell, because I will not need a blackboard. This opinion will be the easiest reading assignment I’ll ever give them.

Of all of the concepts I teach them, they struggle most with the concept of standards of review. Fortunately for them, the term “standard” does not appear in Justice Kennedy’s soaring, poetic opinion. Nor does “rational basis,” “heightened scrutiny,” or “compelling interest.” “Dignity,” on the other hand, appears nine times. This is as it should be, because the case was so simple.

In plain English, for any American who is parsing this opinion today, I offer the following:

The question before the Court in Obergefell was: Are gay people really people? It has always come down to this: If gay people are like other people, there is no compelling, important, or even rational basis to deny them the rights accorded to others. If gay people are as fully human as others, living in equal families, then laws that label same-sex couples and their children as legal strangers are repugnant to our Constitution.