Notes on Obergefell v. Hodges


WC was just a bit too young to appreciate the civil rights movement of the 1950s and 1960s as it was happening. WC was just four years old when Brown v. Board of Education of Topeka was decided, the case that abolished the doctrine of “separate but equal.” WC was in junior high school when the Civil Rights Act became law in 1964. The voting rights and school busing struggles were a distant matter in Alaska when they were happening. Not until the assassination of Rev. Martin Luther King, Jr. did the scope and importance of the struggle start to register on WC’s consciousness.

But the struggle for equal rights for gays, lesbians and transgender Americans is something that has happened in WC’s adulthood, a legal struggle that has happened during the time when WC has been a lawyer. During the last 30 years, homosexuality has moved from a criminal perversion in the eyes of the law to co-equal status with heterosexuality.

Today, in Obergefell v. Hodges, the U.S. Supreme Court took the final legal step in that marathon change by determining that same sex marriage is a right, protected by the U.S. Constitution. Today, America is just a little better place. Today, WC is just a little bit more proud of America.

In one sense, it’s about time. Immense amounts of misery have been inflicted on some Americans because of who they might choose to love. Gay friends of WC have committed suicide as a consequence of guilt and misery inflicted upon them by our society.

Nor is the battle for gay rights over. That struggle, like the struggle of African Americans for their civil rights, is far from over.

But in another sense, the change in the last 20 years is nothing less than astonishing. Not just the 180 degree change in the law; the change in public opinion is equally dramatic. The conservative polling company used by the Wall Street Journal found that earlier this year 59% of Americans approved of gay marriage, with only 37% opposed. Among Americans 18-29 years old, approval jumps to 78%. So in that sense, the U.S. Supreme Court isn’t that far out in front of American culture.

WC isn’t so naive as to think this is the end of the struggle. As WC writes, doubtlessly conservatives and Christianists are plotting ways to subvert gay marriage. There are messy issues to be resolved where sincere religious beliefs meet gay marriage. The SCOTUS decision in Hobby Lobby, granting even corporations exemption from a law to which its owners religiously object to if there is a less restrictive means of furthering the law’s interest. There are likely heavily armed lunatics who will act out their insanities in violent and vile ways. Violence, in the words of H. Rap Brown, is as American as apple pie.

Despite the heel-dragging, despite the violence, despite the efforts to sabotage, gay rights are going to continue to advance.1 That is a very good thing, not just for gays but for every American who can see beyond the Christianist mind set. The United States is not a theocracy, despite the wishes of a minority. WC will close with a quote from the decision, where Justice Kennedy, writing for the majority, said:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

  1. Nor should be overlook the ad hominem sputterings of Justice Antonin Scalia: “This interpretive jiggery-pokery cannot be taken seriously.” That’s legal scholarship, sure enough.