Friday, June 26, 2015

Law of the Land




I was up early, sipping my cup of chai,
when an NBC Breaking News graphic
spread across the screen of the Today show.
There was a cutaway to their legal analyst
in front of the Supreme Court.

The Supremes had announced their decision
in Obergafell v. Hodges
holding that marriage is a fundamental right
extending to same-sex couples.

Photo from Yahoo.com  article Liz Goodwin and Meredith Shiner via Yahoo Politics
There will be those among you
(including some I count as friends)

who are shocked and dismayed by this decision,
based on their religious convictions,
the "marriage is between one man and one woman"
school of thought that relies on status quo
extant at the time the Old and New Testaments
were written and included in what we now consider
the Bible, except (oh my) some of the guys 
in those books didn't limit themselves to one wife.

It likely won't change your mind for me to point out
that the Bible condoned slavery, stoning,
and sacrificial offerings. . .
none of which we justify today,
Old Testament notwithstanding.
Our understanding of right and wrong,
acceptable and intolerable,
evolves over time

I agree with the Court's decision in this case,
which should come as no surprise
if you know me.

I'm (by education and bar membership)
a lawyer, even though no longer actively practicing.
I once was the chair of Women's Legal Defense Fund's
employment discrimination counseling committee.
I went to law school to gain tools to fight discrimination
and improve women and children's access
to the American court system.

In case you were wondering,
I'm not a lesbian and none of my children are lesbian or gay.
There's no one currently in my marital future, 
man or woman or transgender.
 I have no personal stake riding on this decision.

It's just that social justice matters to me.
And I consider the matter of same-sex marriage
to be an issue of social justice.
Legal justice, too.

So did the majority of U.S. Supreme Court justices.
Here's an excerpt from the 27 page opinion
written by conservative Justice Anthony Kennedy:


Four principles and traditions demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12. Decisions about marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. This is true for all persons, whatever their sexual orientation.

A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. The intimate association protected by this right was central to Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception, 381 U. S., at 485, and was acknowledged in Turner, supra, at 95. Same-sex couples have the same right as opposite-sex couples to enjoy intimate association, a right extending beyond mere freedom from laws making same-sex intimacy a criminal offense. See Lawrence, supra, at 567. 

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See, e.g., Pierce v. Society of Sisters, 268 U. S. 510. Without the recognition, stability, and predictability marriage offers, children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated to a more difficult and uncertain family life. The marriage laws at issue thus harm and humiliate the children of same-sex couples. See Windsor, supra, at ___. This does not mean that the right to marry is less meaningful for those who do not or cannot have children. Precedent protects the right of a married couple not to procreate, so the right to marry cannot be conditioned on the capacity or commitment to procreate. 


Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order. See Maynard v. Hill, 125 U. S. 190, 211. States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the States have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage. The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. Pp. 12–18.

The Court goes on to talk about the Fourteenth Amendment's 
equal protection and due process protections.

The right of same-sex couples to marry is also derived from the Fourteenth Amendment’s guarantee of equal protection. The Due Process Clause and the Equal Protection Clause are connected in a profound way. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always coextensive, yet each may be instructive as to the meaning and reach of the other. This dynamic is reflected in Loving, where the Court invoked both the Equal Protection Clause and the Due Process Clause; and in Zablocki v. Redhail, 434 U. S. 374, where the Court invalidated a law barring fathers delinquent on child-support payments from marrying. Indeed, recognizing that new insights and societal understandings can reveal unjustified inequality within fundamental institutions that once passed unnoticed and unchallenged, this Court has invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage, see, e.g., Kirchberg v. Feenstra, 450 U. S. 455, 460–461, and confirmed the relation between liberty and equality, see, e.g., M. L. B. v. S. L. J., 519 U. S. 102, 120–121. 

The Court has acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See Lawrence, 539 U. S., at 575. This dynamic also applies to same-sex marriage. The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians. Pp. 18–22. 

Some of you may never have read a Court opinion before.
Most of us rely on what our chosen news-outlets tell us
a court decision says.

In this case, it seems important to me
to share the reasoning.
It may not promote agreement, but perhaps
there might be a better understanding
of why the decision came out the way it did.

All three women on the Court 
(Justices Ruth Bader Ginsburg,
Elena Kagen, and Sonia Sotomayor)
aligned with the majority opinion.
Each was appointed by a Democratic President
with Congressional approval.

I don't think that being a woman makes one
more aligned with social justice
or balancing equities,
but perhaps it attunes one a bit more
to the nuances of discrimination.





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