June 26, 2015

Private: Obergefell v. Hodges: A Note to Future Self


marriage equality, Obergefell v. Hodges

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.

Make no mistake, today is a joyous day. Most immediately, I celebrate with my clients in the Oklahoma marriage equality case, who after decades as loving, second-class couples last year won the right to marry in our home state, and who now have gained the freedom to travel across America with all the privileges and protections of marriage.

I am also elated that my children will grow up in an America ‒ and increasingly, a world ‒ where yet another class of once-marginalized persons will experience less discrimination and enjoy greater freedom. But what better way to celebrate Obergefell ‒ besides marrying, of course, if one is so situated ‒ than to adopt the forward-gazing vigilance of Lincoln in his memorial to the certainty that there remains equality left to secure tomorrow which even those of us who are jubilant today might resist.