In the most important civil rights case of this Supreme Court term, the issue of whether the constitution requires every state to recognize same-sex marriages was argued this week.
The four liberal justices, including all three women on the Court, appear ready to hold that the equal protection clause of the constitution’s Fourteenth Amendment bans discrimination against same-sex couples nationwide. Four conservatives seem likely to vote the other way. As has happened in the last three major gay rights cases to come before the Court, Justice Anthony Kennedy looks like the swing vote, so the comments he made at the oral argument matter enormously.
Justice Kennedy appeared to be stuck on an issue the conservatives seized upon: the thousands of years of human history that did not recognize the right of two women or two men to marry.
“I don’t even know how to count the decimals when we talk about millennia,” he said. “This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better.’”
Oh! The millennia!
True, Justice Kennedy, state-sanctioned gay marriage has only existed since 2001 (the Netherlands was first). True, prior to that, marriage was defined everywhere as between one man and one woman.
Here’s what else is true.
Throughout much of U.S. history, gay and lesbian sex was a crime. A felony. Punished by many years in prison. At best.
For example, in 1779, Thomas Jefferson proposed a Virginia punishing men who engage in sodomy with castration. And he intended this to be a liberalization of the sodomy laws in Virginia at that time. Jefferson’s bill was rejected by the Virginia legislature, however, which continued to prescribe death as the maximum penalty for the crime of sodomy in that state. (As is still true in some countries.)
Throughout the 20th century American lesbians and gays were frequently arrested. In 1986’s Bowers v. Hardwick, two men were arrested for having consensual gay sex in the privacy of a home, with a police officer peeking in through the window. The U.S. Supreme Court upheld the law criminalizing their adult acts, because who were they to argue with millennia of locking up the gays?
Until 2003, when the Supreme Court was forced to reverse its odious decision in Bowers, consensual adult gay or lesbian sex was a crime in 14 states.
I guess at that point the millennia no longer counted for much in the face of the massive human rights violation of incarcerating people for their choice of sex partners.
Justice Kennedy, please don’t allow the court to make that mistake again. Don’t allow a long history of viciousness toward LGBT people to justify more discrimination, when you know perfectly well that respecting their dignity – the word you’ve used most often in gay rights cases, appropriately — is the right call.
The millennia have been twisted and sick to same-sex partners. LGBT folks have represented about 1 in 5 hate crime victims in the U.S. for many years, representing thousands of people who have been beaten or killed.
A tiny sample through the last few decades:
In 1973, an arsonist torched a gay bar in New Orleans, Louisiana, killing 32 people.
In 1988, Rebecca Wight and Claudia Brenner were shot by Stephen Roy Carr while hiking and camping along the Appalachian Trail, simply because they were lesbians.
In 1998, Matthew Shepard, a gay student in Laramie, Wyoming was tortured, beaten severely, tied to a fence and left for dead. He died a week later.
In 2005, Emanuel Xavier, an openly gay poet and activist, was surrounded and brutally beaten by a group of 15 to 20 teens on the streets of New York City which left him permanently deaf in his right ear.
As a result of all the violence, shaming and abuse, LGBT people have historically committed suicide at alarming rates. Alan Turing, the brilliant mathematician depicted in the film The Imitation Game, cracked the Nazi codes and helped bring down Hitler. A few years later, he was prosecuted for gay sex and sentenced in the UK to disabling “chemical castration.” He committed suicide.
Even today, suicide remains the second leading cause of death for LGBT teens, who are four times as likely to kill themselves as other young people. Each episode of harassment increases the likelihood of self-harm by a factor of 2.5.
For millennia, loving a person of the same gender has meant a life of secrecy, shame and fear.
For millennia, LGBT folks have been objects of scorn and ridicule, sent to quack doctors for “cures,” even lobotomized.
James Baldwin and Lorraine Hansberry and all the other great historical LGBT writers, activists, artists, politicians, parents and every other occupation under the sun who did not live to the 21st century never got to see the day when their state and country recognized their relationships as fully equal to those of heterosexual couples.
Today, elderly or sick LGBT Americans in places like Tennessee, which does not recognize gay marriage, await the day when the dignity of their chosen relationships will be recognized by the states they pay taxes to. They wonder if they’ll live to see it.
Justice Kennedy, you hold the power to change the course of history’s ugly treatment of our LGBT friends and neighbors. Using a history of discrimination to justify discrimination would prevent us from ever moving forward towards equality, and would justify slavery, women as property and the dehumanization of disabled people.
Don’t look back to the darkness of the millennia. Look forward, toward the light of progress. With the stroke of your pen, centuries of cruelty can now come to an end, as every decent person knows they should.
Don’t be afraid for a fourth time to write a decision recognizing the dignity of LGBT Americans. If you do, yours will be a decision for the millennia.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
31 comments
Amanda
There is no such thing as same-sex marriage. Banning its legal recognition does not discriminate against anyone because no one has a right to something that doesn't exist.
Chris
Wrong. The law as currently written (or at least enforced) in America does not disallow homosexual sex, nor does it disallow long term homosexual relationships. It simply does not (in most states) recognize a long term homosexual relationship as a "marriage"... and there should be nothing wrong with that.
The "right" to marry is not denied to homosexuals, because they are free to marry anyone of the opposite sex... they choose not to.... many single people make the same choice every year. Are their rights being infringed? This isn't about "equality", it's about redefining a word in order to force social acceptance of homosexuality. The law does not forbid a position in favor of homosexuality, but the proposal would make it a crime to take a position in opposition to homosexuality. In which case is someone's rights being violated?
Ian
The premise behind this piece seems to be that not allowing Gays to marry will continue the persecution of Gays. Really!!? I have no interest in persecuting gays but marriage is a union of two people of opposite sex. Legally and constitutionally Gays should not be prevented by government from having a union, call it whatever but it should be purely between that couple and government. No one who is in oposition should be forced to participate, which is exactly what will happen if the marriage definition is broadened.
CMFt.Worth
Civil unions for gays, marriage for heterosexuals. Make both equal under the law for all legal aspects and general purposes. Marriage can be for the religious, civil unions for others. Legally be the same, just don't force religious entities to conform to liberal ideologies and don't force religious ideologies on some liberal who is certified to perform marriage/civil unions, just call it two different ceremonies but legally the outcome and rights.
Troy
An even better way to handle this is to take government and government licenses out of marriage all together. Make all "marriages" civil unions, all having the same rights. allow marriage to be a religious ceremony and nothing more.
John S
Troy -- Your prescription is the same as my own. I fully support LGBT rights and equality. With that said, marriage is and has pretty much always been a religious ceremony and commitment of two people, a man and a woman. I have no objection, in fact I support religious organizations that choose to sanction LGBT marriage. I also support religious organization that choose to deny LGBT marriage out of their own religious beliefs and doctrines.
On the other hand, I see no compelling interest for government, at any level, to regulate, control, or license marriage. In the civil (non-religious) realm, there should be no such thing as marriage. "Marriage" should be treated solely and entirely as a legal contractual matter between two or more consenting adults, without regard to their gender, gender selection, or sexuality. Such "Domestic Contracts" should apply to all and need to take on a relatively standard form within each state so as to set forth such things as division of property, matters involving children, health and life decisions, and dissolution -- just as current laws do for todays conventional one-man-one-woman marriage.
Under this schema should my now wife and I have decided to become life partners, we would have executed a "Domestic Partnership" agreement with all of the same rights and constraints as historical marriage. Should we also desire to become "married," we would then have to find a religious organization, such as the Roman Catholic Church, to perform and sanction our religious marriage before God as a sacrament of the Church. Marriage and Domestic Partnership would be two separate and distinct acts: one a civil contract; the other a religious ceremony and commitment.
In any event, we all should be treated the same.
Steven
The word marriage would not even exist if it were not first ordained by God.
Nils Hruch
In the beginning, God... That is all that matters. Which is why Christianity, Judaism, and Islam define marriage as one man one woman. God has not changed. Psalm 2.
joe jones
The word marriage would not even exist if it were not first ordained by God.
-------------------
Pure fantasy. Look up the history of marriage before you say something so obviously false. It's a long and embarrassingly evil tradition that started off with women as property, like a chest of drawers or a mule, and being sold at around age 12-13 to a man who could afford her. And the man was entitled to as many brides as he could afford.
Ordained by God--please, stop with the fantasy.
Dave
If you believe, as I do, that people are born homosexual, then the whole legal history of this movement really just seems like the codification of hypocrisy. This is a test. God is watching. Respect others.
David Reno
I think there is a misunderstanding about the issue. Here are :"Just the Facts."
The Fact is we don't have gay marriage in Massachusetts.
We have marriage. Heterosexuals may marry as well.
If any religious body objects, it is my understanding the state, commonwealth, or federal government
cannot force any relgious body to marry persons not of their faith. Temples may refuse to marry non-Jews; Catholics may refuse to marry non Catholics, etc.
If I wish to begin the Church of Red Haired Men, with Green Eyes and Ear Lobes, I can exclude anyone who does not meet these requirements.
However, when it comes to the LAW, EVERYONE SHOULD HAVE THE SAME RIGHTS, STANDING IN A COURT OF LAW. The pediment on the entrance to the United States Supreme Court, reads
EQUAL JUSTICE UNDER LAW.
In the past century a certain relgion had their right stripped by the Nuremberg Laws. In the century
before that a slave named Dred Scott was told he had no legal rights. ETC.
Since opponents like to quote tradition, let me joint the conversation.
"WHERE LAW ENDS, TYRANNY BEGINS"= PITT THE ELDER.
I trust this illuminates the issue.
Bill
What do you have against red haired men? I understand you wanted to make up a silly example of a church to enforce your point, but I find it offensive as a red haired man. Are you saying red haired men are silly and should be subject to ridicule ? Please take some time for self reflection and try not to be so bigoted.
Tim
Take Matthew Sheppard's name off the list ... he was attacked for his money ... a robbery that turned into a killing of a man who happened to be gay, not a hate crime ... of the other cited cases I have no contradictory evidence, therefore no argument
RGCheek
Whether Kennedy decides to redefine marriage or not there are ways to negate the impact of a SCOTUS decision in that regard.
This is one example of a state making laws to prevent or heavily discourage local clerks from issuing such licenses.
http://trailblazersblog.dallasnews.com/2015/05/gay-rights-advocates-warn-bills-would-undercut-favorable-court-ruling-on-same-sex-marriage.html/
There is also the possibility of starting a States Constitutional Amendment Convention in which amendments can be passed and sent to the states for approval, by-passing Congress and the Beltway Mafia altogether.
Ralph
So according to Lisa Bloom, tradition and morality should be totally abandoned. So next we should sanction multiple partner marriage, then it will be pedophiles marrying children. Where will you draw the proverbial line Ms. Bloom?
John
That's ridiculous. The argument of a biggot. Equal rights do not equate to moral decline. There are plenty of countries guided by religion and people who prefer a theocracy can find one they're comfortable with.
John
The fact of the matter is, marriage is a CIVIL contract. When you divorce, you don't file the paperwork with your pastor, rabbi or imam... Its with the court. You ask to dissolve a civil contract. How, as Americans, can we tell a couple, of age and sound reasoning ability, that they are not qualified or worthy of entering into a civil contract based on someone else's MORAL objection?
David
I agree with you Ralph. Marriage was created by the church as a ceremony of two people of the opposite sex coming together before God. Why then should anyone who is not religious care whether they are married or not. The real problem will be if the court changes the definition of marriage then churches will be forced to violate their beliefs and perform same sex marriages or have their churches taken from them by the federal government due to a violation of the new law. This is about destroying religion not protecting homesexuals.
Richard Phillips
Elevate the LGBT at what cost? The complete stomping of peoples rights based on their religion , etc ? If the gays could practice live and let live, that would be one thing, but they can't. They must force everyone who does not agree with them to bend to their will through lawsuits and intimidation .
Ben
Slavery was also "traditional" for Millenia. for those not holding property. Banishment was "traditional" for anyone deemed "undesirable" for Millenia. Legislation and Federal implementation of ideals based soley on "Tradition" has had some disastrous consequences in the history of The U.S.
The biggest threat to marriage in this country today is the Federal Government . Law is slanted towards singles. It is not economically as sound to marry today, as it is to be single.- and what is at stake here is the recognition of the economic union of couples. Both sides may sat what they will, yet it has not been until the advent of Federal benefits and Pensions that this has developed into anything like a fight.
Rich Bowman Jr.
Justice Kennedy .... PLEASE! Don't allow marriage between a man and a woman to be redefined.... Adam & Eve... NOT Adam & Steve! TRADITIONAL MARRIAGE is the TRUE definition of Marriage!
SilentCalFan
Gay marriage is an oxymoron which denies the biological truth of the complementary relationship of the sexes.
Katie
Christianity did not invent marriage. Marriage was around long before Christ or christianity, so how can the Christian definition be the "true" one.
Sam
Katie, because marriage originated with God at creation and "Christianty", the title referring to the practice of exchanging of one's character for the character of Christ, may not be as old as marriage but the practice is as old as marriage. The Christian definition is that of the original one predating the practice of marriage altogether.
The instructions for us to have the character of Christ predates the title but does not change its age or validity. The instruction for marriage was among the standards of the practice which has come to be known as "Christianity" and therefore it is Christian.
Dee
Well said! It is God who set the standard and defined marriage. Now we are going to say He didn't know what He was doing?
scott
our moral fiber is being lost. our youth all ready has no respect for their elders. Were becoming a country of do whatever you want, instead of di what's morally right. The left wants to change the game by changing what morals they decide need thrown out. A true sad day for America if we continue down this path of ill do what I want, and force those who disagree to comply by, attacking them verbally, attacking their livelihood, and attacking their way of life. What happens if churches refuse to comply? What happens when family's, towns refuse to comply with what the fed court decides? Do we throw them in jail? Fine them ? Terrorize them? All because they disagree with gay marriage? The court needs to leave it to the States where I belongs. The feds have no business dictating to FREE individuals what is morally right or wrong. We are turning into a Country with no individual, or states rights. That's Scary!
Brian
There is absolutely no reason to "respect elders" who engage in bigotry. Respect is earned through words and deeds, not through the simple happenstance of being alive longer than others.
Bill
Grow up and respect your elders.
Maria Orfan
The Unabomber didn't like change either.
Laxmom
Nice try...
The Una-bomber has nothing to do with gay marriage. You just show your ignorance with a comment like that, sad.
Me
Actually, he demanded change. He was not exactly a conformist.