Posted by Brad @ 11:38 am on June 26th 2015

“They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

It ends as it must.

Goodridge v. Dept. of Public Health, 2004. Chief Justice of the Massachusetts Supreme Judicial Court, Margaret H. Marshall, writing on behalf of Roderick L. Ireland, Judith A. Cowin and concurring judge John M. Greaney.

When the wildfire-like judicial history of same sex constitutional rights in the 21st century is written, these are the names that future law students will be starting with. These are the first supreme court justices that examined the question of whether the state had the constitutional right to bar entry to a civil institution on the grounds of sexual orientation.

This, mind you, was in 2004, when the issue of gay marriage was nary a whisper in the mainstream consciousness. Less than a year after criminal prohibitions on gay sex were finally – controversially! – struck down in Lawrence V. Texas, and when the only states that had even dipped a toe into the question were Hawaii and Vermont who had been monkeying around with things called civil unions.

It’s an amazing ruling – I really urge anybody interested in constitutional law or civil rights to read it. The case had already been struck down, handedly, by other courts, as had other similar cases – and almost always on either general deference to the legislature or to “tradition”, or based on a mealy-mouthed invocation of rational interest with no substance behind it. But never with a strong defense of its constitutionality, exactly – it had almost never seemed to occur to previous justices that that argument need to be examined particularly rigorously. They begged off before even getting there by basically saying “that’s the way it is.” But in this case, Justice Marshall put questions of political or popular will aside, cut right through any non-substantive noise, and in response to the fact that marriage was a state institution that gays could not join, asked a simple, clear-eyed question to the defendants: Why?

Once all the unexamined assumptions, all the cultural noise, all the circular prejudicing, was waved away, Justice Marshall could find no answer to that question that held any constitutional merit whatever. She simply asked why: and nobody could give her a clear or compelling answer. And nobody has since.

So Justice Marshall ruled as she had to:

“The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason. The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual…. Limiting the protections, benefits, and obligations of civil marriage to opposite-sex couples violates the basic premises of individual liberty and equality under law protected by the Massachusetts Constitution.”

Prior to 2004, the answer to the question of “Why” – when it was even asked at all – was always “Because”. After 2004, when “because” no longer worked, there was simply no answer left at all.

Since that day, today’s denouement has been all but inevitable. It was all but locked in. I studied the Goodridge ruling a lot at that time as I was doing some related academic work, and immediately after finishing the last page of that decision, it has never since occurred to me that this all could end any way than that it just has.

The decade since has been a lot of thunder and noise, to be sure, and a lot of interesting parallel discussions and rollicking debates. State amendments have flooded us, advocates against have gnashed their teeth mightily, mainstream America let the concept in and then assimilated it seemingly overnight, great discussions have been had about judicial activism and whatnot, but really, none of this has mattered, or at least none of it impacts what has always been the core question:

Is it constitutional to ban gay marriages?

It has always been that simple. And the answer has always been some form of “No.” Whether it was “No, but…” or not, it was still always no.

And here’s the thing:

– If a statute violates the equal protection clause of the federal constitution, it does not matter if it is popular or not.
– If a statute violates the equal protection clause of the federal constitution, it does not matter if states amend their constitutions to try and squeeze it in.
– If a statute violates the equal protection clause of the federal constitution, it does not matter if we would prefer the legislature to generally be the one to address the issue.
– If a statute violates the equal protection clause of the federal constitution, it does not matter if Congress passes further laws that don’t change the core constitutional violation (ala DOMA).
– If a statute violates the equal protection clause of the federal constitution, considerations of which outcomes are “best for the movement” or which tactics would have the most efficacy in changing minds are not relevant.

The only thing that matters is whether it violates the United States constitution, or not. And if it does, no amount of dressage can change that. No amount of “I wish it worked this way or that…” changes that core, fundamental truth. It is either constitutional or not.

The perfect parallel has ALWAYS been racial discrimination, and for FIFTY YEARS prior to Goodridge, the debate had been settled with Brown v. Board in 1954, despite the notions that:

– Racial discrimination may be popular.
– We may wish racial topics were handled by the legislature and laws relating to how the state treats races is their purview.
– States may treat the topic very differently from one another and may even amend their constitutions to make allowances for discrimination.
– Our national Congress may pass laws seeking to clarify why racial discrimination is okay.
– Overturning racial discrimination may cause a lot of backlash and lead to a lot of friction we might all wish to avoid.

Ultimately, in 1954, the court saw that those things were not, in and of themselves, directly relevant. The only question that mattered was: does it fit with our constitution to create a class of second class citizens without a provable and demonstrable rational interest? Is “separate but equal” an okay standard to use if we wish to disinclude a certain class of citizens from a state institution?

The answer was no then – the same year Marilyn Monroe married Joe DiMaggio, the year Edward R. Murrow fought back against McCarthy, the year “Rock Around the Clock” started that whole rock & roll craze, the year “under God” is added to the United States Pledge of Allegiance, the year Sports Illustrated was launched and East Germany began and the USSR gets the bomb and the Viet Cong are first organized. Back then, the answer to that simple question was “No.”

It is still “No.”

We live in a country where you cannot just carve out a group of citizens and deny them constitutional rights on a non-rational basis and without living up to the highest level of scrutiny and burden of proof.

That is not a tactical value. It is not a strategic one.

It is a foundational one.

And that has always, always been the only question that really matters as it relates to gay marriage.

So, in 2004, the defendants in Goodridge v. Department of Public Health – the state of Massachusetts – went to Justice Marshall and said “your honor, gays cannot be a part of the civil institution of marriage.”

To which Justice Marshall asked, simply, “Why?”

She found no satisfactory answer to that question.

A few years later, judges hearing the defense of California’s Proposition 8 likewise found no satisfactory answer to that question.

In the years following, more and more federal appeals courts were unable to find a satisfactory answer to that question.

Just a few years ago, the United States attorney general’s office was unable to provide a satisfactory answer to that question, and decided it was unwilling to keep trying.

All along, it has been the only question that matters.

Today is a great victory for, of course, same sex rights. But it is equally a victory for a clear-eyed reading of the United States constitution. This is not judicial activism. It is it’s very opposite, the core responsibility of the judiciary, the very heart of what it is there to do – read the law as written with a clear head and without concern for political or strategic considerations – just read the words on the page and apply them as written. That is nothing more, or less, than the basic fulfillment of its duties. That’s all the court did today. That’s all it could do.

I am glad we live in a country where I can be so certain, more than a decade ago, that that is exactly what it WOULD do. Because it would have to. Because it would have to eventually reconcile any law with the document that protects us all, and which says that our rights are more important than the politics of the day but are, indeed, foundational – that says that laws must serve our rights, not the other way around. Because the 14th Amendment reads, simply:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

…and no amount of state noodling or popular backlashes or fears of judicial activism changes that, short of a federal constitutional amendment.

Because the court would have no choice. Because, ultimately, their hands were tied. Because it had to answer the question of “why” – and without a compelling answer there was only, ever, one possible outcome once that question is asked.

It ends as it must.

God bless America.

1 Comment »

  1. And Justice Roberts, who has had a great week, spoke the truth in his dissent: this did not, in fact, happen because of the Constitution.

    It happened because popular will changed to the point at which it became politically viable for five members of the court to act in what they thought was a Constitutional manner.

    Comment by Rojas — 6/26/2015 @ 1:33 pm

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