Bill Newman: The wait for full marriage equality



Last modified: Friday, May 01, 2015

NORTHAMPTON — No one outside Northampton City Hall on the evening of Nov. 18, 2003, will forget the celebration. People hugged and cheered. Balloons floated. Signs were hoisted. Rainbow flags were waved. And Rachel Maddow spoke. Earlier that day the Massachusetts Supreme Judicial Court had issued its decision in the Goodridge case, holding that our state constitution guaranteed gays and lesbians the right to marry.

So we celebrated — celebrated Massachusetts being the first state to guarantee this right, celebrated the dawning of what we hoped was a new day of equality, celebrated because we believed that other states would follow suit.

And, indeed, that has happened. Either by court decision or legislative action, some 36 states now have marriage equality. But whether this liberty will be extended across America depends on the outcome of the marriage equality cases argued at the Supreme Court on Tuesday.

The four highly conservative justices — John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas — are expected to oppose marriage equality, while Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, observers agree, will support it. This means that the decision, in all probability, rests in the hands of Justice Anthony Kennedy. Kennedy, generally speaking, is ideologically aligned with the conservative block. But in the past, on LGBT rights, Kennedy has rejected the party line.

In 2003 Kennedy wrote the majority opinion in Lawrence v. Texas, which overturned Texas’ sodomy laws. Lawrence holds that private sexual activity of gays and lesbians is a constitutionally protected liberty interest that cannot be criminalized.

Kennedy also authored the court’s 2013 opinion in Windsor, the case which struck down the federal Defense of Marriage Act because that law denied legally married same-sex couples the federal benefits enjoyed by legally married heterosexuals. Windsor did not decide, however, whether states must allow same-sex couples to wed. That is the issue now before the court.

One vote often tips the balance at the highest federal and state courts. Indeed, in Goodridge — and we in Massachusetts tend to elide over this fact — the seven-member Supreme Judicial Court was split four to three. One changed vote could have seriously derailed the march to equality. And the four judges who agreed on the result didn’t completely agree on the reasoning.

The three-judge plurality in Goodridge rested their decision, authored by then-Chief Justice Margaret Marshall, on guarantees of due process and liberty. Justice John Greaney of Westfield cast the fourth vote for equality. He agreed with much of the chief justice’s reasoning but rested his opinion on a different constitutional provision — the Equal Protection Clause.

At the Supreme Court this week, opponents of marriage equality argued, as they had in Massachusetts over a decade ago, that a gay’s couple inability to procreate provides a constitutionally sufficient justification for a state to deny gay couples the right to marry. The Supreme Court appeared decidedly unimpressed by this nonsensical argument. Really, no post-menopausal woman, no man with a vasectomy and no infertile couples should be allowed to marry? The justices fretted more about the possibility that gay marriage rights had moved too quickly, musing aloud whether it was premature for the court to impose the requirement of equality.

A hybrid decision is possible. The court could rule against equality but then decide that all states, including those that prohibit gay marriages, are obligated under the Constitution’s Full Faith and Credit Clause to recognize gay marriages performed in other states. The last 60 minutes of the two and a half hours of oral argument were devoted to this issue.

Justice Greaney, in his 2003 opinion in Goodridge, wrote this eloquent truth: “The plaintiffs are members of our community, our neighbors, our co-workers, our friends. ... They volunteer in our schools, worship beside us in religious houses, and have children who play with our children. ... We share a common humanity and participate together in the social contract that is the foundation of our commonwealth. Simple principles of decency dictate that we extend to the plaintiffs’, and to their new status, full acceptance, tolerance and respect. We should do so because it is the right thing to do.”

If Supreme Court Justice Anthony Kennedy finds within himself the same humanity that Greaney and his brethren in the majority did in 2003, we will soon have full marriage equality. My guess is that Justice Kennedy will ultimately find compelling the argument for individual dignity and respect, and so I am keeping the champagne on ice — hoping, without guarantees, for a joyous celebration in June, traditionally a beautiful month for weddings.

Bill Newman is a Northampton lawyer, host of a WHMP weekday program and author of “When the War Came Home.” His column appears the first Saturday of the month. He can be reached at opinion@gazettenet.com.


 


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