Marriage Equality and the American Legal Tradition

June 26, 2015
Guest Post

by Suzanne B. Goldberg, Director of Columbia Law School's Center for Gender and Sexuality Law, Herbert and Doris Wechsler Clinical Professor of Law, and Executive Vice President for University Life at Columbia University.

By striking down state laws that shut same-sex couples out of marriage, the U.S. Supreme Court has put an end to a long and painful chapter in our country’s history and, at the same time, created an opening for a new wave of civil rights, safety, and justice advocacy.

For so many years, with heightened intensity in the past two decades, states have denied same-sex couples access to marriage and the rights, recognition, and responsibilities that go along with it.  The terrible consequences are familiar: longtime partners kept from each other at hospitals, children and parents torn apart, humiliation and cost to people like the man at the heart of today’s decision, James Obergefell, whose marriage Ohio treated as nonexistent after Obergefell’s spouse, John Arthur, died in 2013.

Familiar now, too, is the dramatic shift in the marriage equality landscape.  With increasing momentum, voters, legislatures, and courts around the country have reversed course on “defense of marriage” acts and rejected second-class citizenship for gay and lesbian couples.

Without Supreme Court action, the nation was destined to maintain a discriminatory patchwork of marriage laws for years to come. The Court’s decision, in other words, reinforced the American tradition that courts, legislatures, and the general public each have a role in securing justice.

Justice Kennedy’s opinion for the Court highlights the “substantial attention” and deliberation about marriage equality by governments, businesses, religious organizations, scholars and many others.  It supplies a list of state laws recognizing marriage rights for same-sex couples alongside scores of similar court rulings.  The opinion makes clear, too, that “the identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution,” sharply countering Chief Justice Roberts’ dissenting view that the Court overstepped its role.

As has been true in other civil rights movements, a judicial decision striking down formalized discrimination marks a crucial moment. The removal of outright barriers like marriage bans opens the door to fuller participation by lesbians and gay men in the life of the nation.

This fuller participation, in turn, creates more room for awareness that gender-role nonconformity – whether in one’s choice of partner, spouse, personal identity or style – likewise should not be the basis for discrimination or violence.  And there is still plenty of that.

Stories of gay and transgender people being fired – or not even being hired – abound, especially for those who don’t conform to gender stereotypes. Notwithstanding the generally positive reception for Caitlin Jenner, LGBT people also continue to face serious risks of violence, even in neighborhoods known to be gay-friendly.   

Some in our nation also vow, even in the face of the Court’s ruling, to restrict gay and lesbian couples’ access to marriage in the guise of “religious freedom” bills that authorize individuals, businesses, and even government officials to refuse to recognize same-sex couples’ right to marry.

So, what’s next? More advocacy in all of the domains that matter – legislatures, courts, communities. But first, we pause to recognize this profound change in our national landscape, to celebrate the advance of equality, and to honor the courage and stamina it took to get here.