by Steve Sanders, who teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law. He was co-counsel on the Human Rights Campaign’s amicus brief in Obergefell v. Hodges.
The mid-summer anniversaries of Supreme Court’s marriage equality decisions, United States v. Windsor (2013) and Obergefell v. Hodges (2015), should be celebrated not only for the ends they accomplished – ending the federal non-recognition of same-sex marriages, then bringing about full nationwide marriage equality – but for the way they elevated gays and lesbians to a place of constitutional dignity. This principle of equal dignity must play a central role as the legal and political movements for LGBT equality continue to evolve.
The Supreme Court laid important groundwork for marriage equality in Romer v. Evans, where it observed that states could not single out gays and lesbians for special legal and political disadvantages that were intended “not to further a proper legislative end but to make them unequal to everyone else.” It continued the project in Lawrence v. Texas, where it said gays and lesbians “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” under sodomy laws. In earlier posts on this blog, Sarah Warbelow and Paul Smith have reflected on the significance of these cases.
Marriage equality was, of course, a considerably larger and more controversial question, because it implicated the social meaning of homosexuality and whether gays and lesbians were entitled to have their lives and relationships accorded the same value and respect by government as heterosexuals. Religious conservatives and their agents in the Republican Party had been working for years to prevent the possibility of such equal dignity. The federal Defense of Marriage Act (DOMA), which was struck down in Windsor, and the state bans on same-sex marriage, struck down in Obergefell, represented some of the worst characteristics of American politics. They were enacted through campaigns of fear, dishonesty and anti-gay animus. One of the marriage bans invalidated by the Supreme Court was a Kentucky state constitutional amendment passed in 2004; a state legislator told the Louisville Courier-Journal at the time that the amendment’s supporters had shown “an unparalleled level of zeal, intolerance and hatred” toward gays. In 2010, the federal judge who struck down California’s Proposition 8 found that the campaign in support of that 2008 ballot measure had presented voters with a “multitude of … advertisements and messages” intended to “convey to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.”
As challenges to DOMA and state marriage laws made their way through the federal courts, two things were becoming clear. First, these laws rested on flimsy and disingenuous justifications that were easily dismantled by most judges who confronted them. Second, public opinion was undergoing a stunning sea change, and a majority of Americans were becoming ready to accept marriage equality. Social change was moving hand-in-hand with legal change.
When these cases eventually reached the Supreme Court, the justices spoke with blunt and refreshing candor about the malevolent motives of DOMA, and the harmful effects of state laws that persisted in treating gays and lesbians as second-class citizens. Justice Kennedy’s majority opinion in Windsor recognized that “interference with the equal dignity of same-sex marriages … was more than an incidental effect of” DOMA. “It was its essence.” DOMA’s “avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma.” Two years later in Obergefell, Justice Kennedy explained that where states barred same-sex couples from marriage, the “harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” Pointedly excluding gays from marriage “has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.”
What is perhaps most striking about these opinions is the warm empathy and respect they convey toward gays and lesbians. Justice Kennedy wrote movingly about Edie Windsor and Thea Spyer, the couple at the center of Windsor, and about how they had “longed to marry.” In Obergefell, Kennedy summed up the crux of the case in two sentences. The gay and lesbian couples who had filed the challenges, he said, “ask for equal dignity in the eyes of the law. The Constitution grants them that right.” (Earlier this spring, I interviewed Jim Obergefell in front of a law school audience about his journey as a plaintiff in a landmark constitutional case; the video is available here.)
Given how controversial same-sex marriage was for more than 20 years, and notwithstanding a few vulgar sideshows like the Kim Davis spectacle last summer, it is remarkable how easily the reality of legal same-sex marriage has become integrated into the tapestry of American life. According to data from the Williams Institute at UCLA, 132,000 same-sex couples married after Obergefell, bringing the total of married same-sex couples in the U.S. to almost half a million.
Yes, there was been backlash against LGBT progress in the far-right-controlled legislatures of a few states like Mississippi and North Carolina. As legal challenges to these laws move forward, we must hope that lower federal courts will draw lessons from Windsor and Obergefell about the importance of clear-eyed candor toward anti-LGBT laws, and about the constitutional principle of equal dignity that weighs against them.