The Heady Rush of History: A Brief Blurb on Obergefell v. Hodges

Four years ago this weekend, when I was interning with Obama for America, I worked at a voter registration booth at the New York City Gay Pride Parade. Like any large-scale event in New York, the parade attracted the usual cornucopia of fringe characters. The neighboring booth to ours was trying to “take back the Swastika” in the name of peace and love. The operators, all of whom were white, clearly meant well, but they didn’t seem to know very much about the rich Asian religious traditions in which the swastika holds a positive meaning. Such is New York – all kinds of eccentrics popularizing their ideas with gusto, even if they can’t articulate a coherent justification for them.

The vast majority of people at the parade, however, were not chasing esoteric ideas, nor were they incoherent. Rather, they were utterly normal people advocating for community services, political groups, and legal equality. Needless to say, the vast majority of them were members of the LGBT community.

Again: Gay and trans people, on masse, being utterly normal. This doesn’t mean they weren’t dressed in colorful ways for the parade, or that the simple act of gay people holding hands while walking through Greenwich Village wouldn’t drive a deeply conservative person up the wall. Yes, some members of New York’s gay community can be visibly different in their attire or mannerisms from the straight community. But such surface-level differences are nothing. People are people, everywhere you go. LGBT Americans want the same things as straight Americans. LGBT folks want to be happy; they want the best for their loved ones; they’ll stop and talk about the issues dear to their heart; they will go out and assist with community gatherings like Pride. For instance, I remember talking to a group of retired veterans who were advocating for the V.A. to extend benefits to their same-sex partners. The passion behind their positions was evident. The social capital, the civic ethos of the LGBT community is as American as apple pie.

That Saturday in June 2011, New York State had just legalized gay marriage on the state level, and the LGBT community in NYC was overjoyed. After I finished my shift at the OFA booth, I met up with my parents and we hiked up to the main parade route. The people marching in the parade were exuberant and overjoyed at the legislature’s vote. I was reminded, again, that anyone can be LGBT: A group of gay Ultra-Orthodox Jews waved to us as they passed by on a large float. Some of the more avant-garde outfits – the spray-painted, half- or mostly-nude revelers – were a bit, shall we say, removed from my 19-year-old heterosexual self’s frame of reference. But the jubilant emotions in the parade members’ eyes and faces reminded me that we are fundamentally all the same. The 2011 parade, combined with making more gay and lesbian friends while at college, left me a staunch supporter of gay marriage. I learned that, if I were LGBT, I’d want to not just have all the legal rights accompanying marriage; I’d want to call my partnership a marriage, just like any straight couple.

How far we’ve come in four years. The V.A. now extends benefits to same-sex partners. DOMA and Proposition 8 are history, thanks to the Supreme Court rulings of 2013. Yesterday, we learned about the Supreme Court’s 5-4 ruling in Obergefell v. Hodges, which declared that LGBT marriages must forthwith begin in every state of this country. Indeed, such marriages already began yesterday, and I’m sure they will continue in the days and weeks to come. I can’t help but think the sudden surge in weddings, and accompanying dinners out, parties, trips, etc., will cause a small but significant boost to the economy (as Jack Black told us back in 2008). NYC Pride this weekend is going to be one hell of a party. I wish I could be there to see it.

Yet I must offer a word of caution: Don’t think the gay marriage issue is settled entirely in the United States. It is quite likely that the GOP’s more moralistic members will introduce a constitutional amendment defining marriage in a heterosexual manner. Given the size of the Democratic minority, such an amendment will lack the 2/3 supermajority needed to clear Congress. As such, you can expect the GOP presidential candidates to campaign heavily on the promise of an amendment should they become President. Indeed, Scott Walker, Mike Huckabee, and Ted Cruz have already promised to disobey the SCOTUS ruling, which is now the secular law of the land, because of their religious beliefs, even though such pledges were once used to combat interracial marriages and civil rights. Many far-right GOP candidates at the state level may also promise to support an amendment defining marriage in a traditional manner. The mission now for many LGBT activists and their straight allies (at least, the liberals and Democratic-leaning moderates) is to persuade Republican politicians to change their minds, and/or to elect as many Democrats as possible to preserve this SCOTUS ruling.

If you want to find a good historical/legal rationale for the Obergefell v. Hodges majority opinion, I highly recommend reading Chief Justice Earl Warren’s 1954 opinion on Brown v. Board of Education. Warren says that judges can’t simply look at the past to understand racial discrimination, but rather they must consider the full historical development and the state of racial segregation in the 1950s, the time when the case happened. This need to place law in the full scope of history is a good rationale for justices, from time to time, exercising moral judgment, even if that means counteracting legislatures. This historically informed approach to the law is the opposite of Antonin Scalia’s dissenting opinion about Obergefell v. Hodges, in which Scalia argues that judges should just consider what laws & the Constitution meant at the moment they were passed. His textualism is a convenient excuse to stick one’s head in the sand about changing social issues.

Clarence Thomas’s dissent hinged on the idea that we all have innate human dignity, and the Constitution can’t give people dignity. Thomas cited as evidence the fact that the Japanese who were interned in World War II still had their inherent human dignity. To which I respond, the United States government eventually apologized for violating that dignity. The law may not ascribe the value of a human life, but the people who execute and interpret the laws can apologize when the value of human lives is ignored. The U.S. government for a long time ignored – indeed, even actively violated – the rights of homosexuals. Obergefell v. Hodges is an apology for that ignorance, and a protection in place to make sure that marriage inequality never happens again.

Chief Justice John Roberts expressed sympathy with the supporters of gay marriage, but he advanced a measured conservative argument, typical for his approach to the law, that the Court should not act in place of legislatures. I believe Justice Roberts is sincere about this view, but it’s very hard to square this reasoning with the fact that the Warren Court, in one sweeping judicial ruling, went against many Southern legislatures and desegregated the schools. Roberts also expressed concern that Obergefell v. Hodges would open the gates toward polygamous marriages. To which I respond, yes it very well might, because the existing anti-polygamy laws are based on the 1890s’ Protestant prejudice against polygamous Mormons. That’s really the only reason the polygamy laws are on the books: Non-Mormons disliked the LDS position on polygamy in the late 1800s. A religious justification is a poor one for secular law. I’ve got absolutely zero interest in practicing polygamy, but if other adults are all legally of age and consenting, then who am I to tell them what to do? Yes, Obergefell v. Hodges opens the doors toward a potentially wide-ranging reevaluation of what is a permissible marriage in the United States. But as long as people are adults, don’t hurt anyone else, and pay their taxes, I think they can do what they want. Obergefell v. Hodges is probably just the first wave of social changes in this new century. And, as the Grateful Dead sang twenty-eight years ago, “We will survive.”

The one dissent that resonated with me was that of Justice Samuel Alito. The judge expressed his fear that people who disagree with gay marriage for religious reasons will now be labeled uniformly as bigots. I understand where Alito’s coming from. Alito fears a purge in government and private life of anyone with a dissenting viewpoint. That’s not unreasonable. Lately, we’ve seen the liberal Safe Spaces movement on college campuses become distorted, so that instead of talking about tough issues, you’re not supposed to talk about them at all. Similarly, at Northwestern, the cultural critic Laura Kipnis has been subjected to a veritable witch hunt for not agreeing with every single policy position of the university’s anti-sexual assault coalition. So there is always a chance of a witch hunt or a purge in America. Liberals have to be cautious and empathetic toward those who do not support gay marriage. Dissent is not the same as disloyalty.

But let’s not forget that the political right and the religious right (which aren’t always the same faction) are capable of their own witch hunt-like statements. How many conservatives accused the President openly of treason for supporting universal health care? How many moderate conservatives (e.g., Jon Huntsman, and probably John Kasich, give it enough time) have been drummed out of the GOP in recent years for dissenting on particular issues? Alito errs by assuming that only supporters of gay marriage are likely to engage in intellectual persecution. Alito is a smart man and likely understands this privately, but his dissent veers unfortunately into liberal-bashing by implication.

More importantly, Alito errs by letting his fear of intellectual persecution dissuade his support for Obergefell v. Hodges. It is the role of the federal government – a metonymic entity standing above and beyond individual employees – to present a united front, defending the rights of all individuals. We’ve got sixty years of legal precedents now that say the Fourteenth Amendment applies to the states and ensures equal protection of law for everyone. Now, “everyone” has been explicitly extended to – well, nearly every person in the U.S. (Excepting polygamists. And undocumented workers. And, let’s face it, trans Americans. The struggle continues.) If individuals working for the federal government do not believe in homosexuality, they have a Constitutional right to disagree in their thoughts and private conversations. At the same time, though, these employees’ reticence should not stop the entire Government, as a Fourteenth Amendment-supporting entity, from extending marriage rights to LGBT people. Indeed, individual religious reticence cannot stop the secular government from extending marriage rights to everyone.

My point of this extended and meandering essay through legal and social history is that we live in a thrilling time for civil rights in the United States. All is not perfect; the Black Lives Matter movement has shown us that. And Dylann Roof showed us that racism and neo-Confederate politics can still motivate violence. Yet in the last week, we’ve seen a massive public discussion about the Confederacy’s legacy, the Supreme Court uphold large-scale government health care (and, by implication, other massive social programs), and now the same court uphold marriage equality. Truly, we live in thrilling, challenging, and transformative times. I understand that, to a variety of people on the right and in the middle, these changes may be deeply unsettling. Yet I retain a cautious optimism that this brave new world of ours won’t be nearly as scary as they suspect (and I mean cautious optimism, because history has a habit of doubling back on itself and cutting progress short).

Today, a lot of people are going to get married. That’s a tangible good. That’s justice.


Yours truly, Dan Gorman.
Yours truly, Dan Gorman.

Cover Photo Source:


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