Liberty, Justice and Marriage for All
On June 26, the Supreme Court overturned its infamous Bowers v. Hardwick decision of 1986, which ruled that gay people’s private sexual intimacy did not warrant constitutional protection in the bedroom because there is “no connection between family, marriage or procreation on the one hand,” and gay people on the other.
Sixteen days earlier, Canada became the third country in the world to allow lesbian and gay couples the freedom to marry. In a unanimous decision, the high court of Ontario ruled that the exclusion of same-sex couples from the important legal institution of civil marriage infringes upon human dignity, harms real families, including children, and violates constitutional guarantees of equality and fairness. Canada’s government has embraced that decision, and lesbian and gay couples have gotten married. Niagara Falls is still falling, but the sky has not.
During the last 17 years, lesbian and gay couples across North America have shown that, contrary to the repudiated Bowers v. Hardwick claim, our lives and aspirations have everything to do with commitment, dedication to family and raising children, sexual choice and intimacy — and yes, marriage.
So why, then, is there no marriage equality for same-sex couples in America?
In 1996, following a historic trial at which the state had a chance to make any argument and offer any evidence it chose, Hawaii Judge Kevin Chang found: “In Hawaii, and elsewhere, people marry for a variety of reasons, including: (1) having or raising children; (2) stability and commitment; (3) emotional closeness; (4) intimacy and monogamy; (5) the establishment of a framework for a long-term relationship; (6) personal significance; (7) legal and economic protections, benefits and obligations.” Same-sex couples, the judge declared, share the same mix of reasons as different-sex couples for wanting to get married. The Hawaii court held — as courts have since in Vermont and, now, Canada — that the government has no good reason for excluding same-sex couples from the commitment, responsibilities and protections of civil marriage.
Right-wing groups have opposed ending marriage discrimination, just as they have fought any measure of protection for gay people’s families. Politicians who pander to them, such as Senate Majority Leader Bill Frist, a Tennessee Republican, have been willing to attack gay people as convenient scapegoats — even threatening recently to support amendments to the Constitution, our nation’s greatest treasure, which protects all of us in our religious freedom and equal claim to liberty and basic rights.
Yet none of these groups or politicians can give a good reason for excluding gay people from marriage. Their claims that the sky will fall are the same cries of gloom and doom they made in previous national battles over marriage — struggles over ending race restrictions on who could marry whom; abolishing women’s legal subordination in marriage by which women actually lost rights and their own legal identity upon marrying; removing laws that denied married and unmarried people the right to make their own decisions about contraception and parenting, and creating divorce laws that freed people from failed or abusive marriages. Much as the Supreme Court said of its now-repudiated anti-gay decision in Bowers v. Hardwick, they were wrong then, and they are wrong now.
Supreme Court Justice Antonin Scalia wrote last week in his dissenting opinion that the exclusion of same-sex couples from marriage rests on “pretty shaky grounds.” As he noted, “the encouragement of procreation” cannot justify the exclusion, “since the sterile and the elderly are allowed to marry” — so why, then, not same-sex couples? Though I rarely agree with Scalia, when he’s right, he’s right.
Moreover, since many same-sex couples today are raising children and want the best for their kids, why punish those kids by having the “wrong” parents and deprive them of the support and protections that would come to their families with marriage?
Poll after poll has found that young people in this country strongly support allowing gay people to wed, and more than two-thirds of all Americans believe gay people will win the freedom to marry. Non-gay Americans are coming to understand that excluding gay people from family protections such as access to healthcare, parenting and immigration rights, Social Security and the other concomitants of marriage is wrong, just as including the police in our bedrooms is wrong.
I am proud that Jewish voices — such as those of the Reform movement’s Central Conference of American Rabbis and Union of American Hebrew Congregations, as well as the Jewish Reconstructionist Federation — are among those engaged in this civil rights struggle to allow gay couples the freedom to marry. They understand the difference between civil and religious marriage, and respect America’s commitment to equality for all.
Thirty years from now, when the United States has followed Canada in ending sex discrimination in civil marriage, we will each look back on this time and this struggle with either pride or shame. Who will be able to proclaim that they stood with those who worked to end discrimination in marriage, and who will have to admit that they enabled those who not only resisted change, but wanted to turn back the clock?
If Canada can trust that the sky won’t fall when its people are treated with respect, Americans just across the border can hold our own country true to its promise of equality, the pursuit of happiness and justice for all, and let gay couples wed.
Evan Wolfson is executive director of Freedom to Marry, a gay and non-gay partnership working to win marriage equality nationwide. He served as co-counsel in the Hawaii marriage-equality case Baehr v. Miike.