Private: A Change Is Gonna Come

by Janson Wu, Executive Director, Gay & Lesbian Advocates & Defenders (GLAD). Wu is a recipient of ACS's David Carliner Public Interest Award.

*This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

On April 28, I sat in the U.S. Supreme Court to watch Mary Bonauto argue for the freedom to marry for all same-sex couples across our nation.  Her opening argument rang as true today as 12 years ago, when Mary won the Goodridge case, making Massachusetts the first marriage equality state:

"The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society. If a legal commitment, responsible and protection that is marriage is off limits to gay people as a claim, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”

As the Executive Director of Gay & Lesbian Advocates & Defenders (GLAD) where Mary has worked for 25 years, I was proud to witness Mary stand in front of the nine justices to argue for the equal dignity and humanity of LGBT people.  Over the course of the argument, which included passionate and articulate performances by U.S. Solicitor General Donald Verrilli and Doug Hallward-Driemeier (who argued the question of recognition of out-of-state marriages), the debate over our equal worth as citizens and as people never felt more substantial.

At the same time, from the outset of the arguments, it became clear that the primary preoccupation of the conservative justices (and perhaps Kennedy) was about change, and what the Court’s role should be in that change.  As Chief Justice Roberts laid out in his first question: “My question is you’re not seeking to join the institution, you’re seeking to change what the institution is.”

That supposed change, as our opponents have argued, threatens to harm the institution of marriage by changing people’s understanding of marriage.  As the attorney for Michigan John Bursch claimed, there is “harm if you change the definition because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect?  You expect more children outside of marriage.”

That argument met with a fair amount of skepticism from some of the more liberal justices, including Justice Kagan who countered that the idea that allowing gay couples to marry would “announc[e] to the world that marriage and children have nothing to do with each other” made no rational sense – “not in the abstract, not in the concrete.”

Instead, Michigan’s logical flaw reveals the justification that truly underlies marriage discrimination, and it’s not about procreation.  It’s about society’s deep and persisting discomfort with same-sex relationships.  As Mary targeted in her argument:

"Does Michigan deny the marriage because they didn’t conceive those children together, when Michigan would let other adoptive parents who are a different-sex couple marry? No. Michigan is drawing a line because it does not approve of the adult relationship."

This discomfort is nothing new when it comes to marriage.  As the history of coverture and anti-miscegenation laws demonstrates, change within the institution of marriage has often been deeply unsettling to people.  Yet, as Justice Ginsberg reminded the Court multiple times throughout the argument, there has been continuous “change in the institution of marriage to make it egalitarian when it wasn’t egalitarian.”

And that’s precisely the purpose of the 14th Amendment – to force the change that is uncomfortable because of, not despite, lasting and intense prejudice against a group of people.  By adopting a “wait and see” approach until a supermajority of the public is no longer uncomfortable with the change presented, don’t we end up entirely gutting the Equal Protection Clause?

Yet, that’s the path some of the justices contemplated going down at points.  As Justice Kennedy noted, given that the “traditional” definition of marriage has been around for a “millennia” (ignoring the fact that marriage a “millennia” ago would have been unrecognizable to us today), “it’s very difficult for the court to say we know better,” Kennedy said.  On the other hand, he also observed that it was only 10 years between the decisions in Brown and Loving, roughly the same amount of time as between Lawrence and today.

So how long must same-sex couples wait for change – 10 years, a millennia, or something in between?

The answer does not lie in ancient Greece, as Justice Alito would imagine, but rather the relationship between our Constitution and society today.  As Mary explained using Kennedy’s own words, “times can blind.”  She continued: “It takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded.”  But once we see what was once hidden from sight, we must justify continuing with what came before, no matter how long that tradition has lasted.

That is the story of our Constitution.  With greater time and vision, our Constitution compels us, and judges, to expand our commitment to equal dignity and treatment to individuals formerly excluded, hidden out of sight.

That is also the story of the LGBT movement.  As we have gradually come out of the closet and sought to be seen within society, we have made visible the equal dignity and humanity of our lives and our families.

We likely will not know the outcome of the appeals until the end of June.  But the outcome of this incredible movement has already come to light.  Thousands of loving same-sex couples have married across the country in red and blue states, in urban and rural areas, in synagogues, mosques, churches, and city halls, and of all races.  And those marriages have been witnessed by even more Americans – families, friends, coworkers, and neighbors – and their hearts and minds have been opened over slices of cake (regardless of who baked the cake!) and glasses of champagne.  Despite Chief Justice Roberts' warning that constitutionalizing the question of marriage equality will “clos[e] the debate,” the opposite is true.  As Mary once described, “Weddings are joyous occasions, and they helped transform the debate.”

The world has already changed – and for the better, not worse.  Now it’s just time for the Court to catch up.

Civil rights, Equality and Liberty, LGBTQ Equality, Supreme Court