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New Jersey Employment and Civil Rights Trial Lawyer Discusses Supreme Court Arguments in Equal Marriage Case

Or...I'm tired of blogging about this and I don't want to ever have to blog about it again.

The time has come.

Of course, we shouldn't be having a conversation about this in the first place, so I suppose to say "the time has come" is sort of silly. Really, the time never should not have come.

I know that sounds confusing, but I think you get my point. The United States was the first country in the world to have a Constitution - albeit a flawed one in which African Americans were considered three-fifths of a human being and in which women didn't have the right to vote. On the other hand, it was an inspiration for many others that have since copied ours. We also tend to say that we're the "best country" in the world, a relative and inaccurate statement that does more than anything to make the rest of the world hate us for being arrogant, ignorant and smug. Yet most of the time, I truly do believe that we aspire to be what we say we are. I think that we pride ourselves on being helpful, kind, considerate, honorable and willing to go the extra mile (even in the international sense of giving aid and offering protection) when it "feels" like the right thing to do. No one's perfect and neither are we.

A country like that-a country that has those views of itself-should never have had to have the tortured, multi-decade history of "debate" about intimate civil rights issues like a woman's right to choose, the right of all people to be free of discrimination in all aspects of life, and, of course, the right to marry.

I've blogged about this many times over the years, in many incarnations. I've talked about how New Jersey, the state in which I practice civil rights law, should define itself by protecting equal marriage as other states had at the time. It took a while-for many, too long-but New Jersey finally got it right. We finally did it. We are one of the few and the proud states that constitutionally protect the right of same-sex couples to love and to enjoy the benefits (which are considerable and financial and institutional) of marriage.

Of course, New Jersey's a mostly enlightened and progressive coastal state with well-educated and thoughtful people (or at least, more of that type of person than not).

It's not surprising that most of the states with the higher incomes and better levels of education and sophistication are the states which recognize the fundamental right to marry as nothing short of a civil and human right. It's also not surprising, therefore, that states that are more "ignorant", states with lower average incomes and lower levels of education, are the ones "wrestling" with these issues.


Why wrestle? There's really nothing to wrestle about. You know what they're "wrestling" with? The Bible or the Koran or whatever religious tradition you care to name (or blame), and how to sneak that religiosity into law; that's what. The only actual objection to allow same-sex couples to marry is a religious one. Yet we all know that religious tradition must not form the basis of official legal action by a governing body. That doesn't mean, however, that governing bodies don't constantly attempt to disguise and hide religious motivation in what they do.

Frankly, I'm tired of it. So are an increasing number of straight people who never had a "horse in the race", and who, like me, recognize that my right to marry my wife was never questioned. The more straight people that think about how they would have felt if someone questioned their right to marry their opposite sex partner on the basis that it was somehow "an abomination" or a "sin" think about that, the more inane any "debate" really is.

Religious objectors to equal marriage can scream, yell, cry, pray and rant all they want in their churches, mosques, synagogues and other houses of worship. They can rant and rave and object all they like on social media and blogs (as long as they don't break anti-discrimination laws or criminally or civilly harass others).

The Supreme Court heard arguments which might finally resolve the question of marriage equality in the United States and take some of the shame that this country owns off of our shoulders in the eyes of more progressive countries around the world. By the way, how much does it suck that the first country in the world to have a Constitution is now behind the times on issues of fundamental human rights and liberties? That we're behind countries which came much later to the "constitutional party" than did we? But I digress.

By all accounts, the Supreme Court was "deeply divided" over this great civil rights issue of our age. Justice Anthony M. Kennedy, however, appears to have given those who feel the time has finally come some hope. He asked substantive questions which suggested that his view might be a view to finally end this "debate" the right way once and for all.

In two and a half hours of arguments over whether the Constitution guarantees same-sex couples the right to marry, Justice Kennedy seemed wary of moving too fast on the one hand, and torn about what to do, but also in his demeanor emotional and empathic when he seemed to make the case that same-sex couples should be permitted to marry. Remember that Justice Kennedy is an author of three landmark opinions expanding rights of gay Americans.

Of course, the other Justices seemed to act in accordance with their traditional views, with the conservatives clashing with the not conservatives over what they saw as the "right answer" and more importantly for constitutional scholars, how to reach that answer.

The questioning illuminated conflicting views drawn from history, "tradition" (whatever the hell that means), biology (at least as non-scientists understand it), constitutional interpretation, the "democratic process" and the role of courts in prodding social changes.

Although he talked about "tradition", Justice Kennedy seemed much more to "feel" the rightness of the position when he went the other way and talked about the fact that gay couples can't procreate yet still want the other dignities and attributes of marriage to show that love has a "dignity that can be fulfilled." Beautiful words. I'm hoping that they in turn suggest where he may stand on the issue.

The day's arguments focused on same-sex marriage bans in states like Kentucky, Michigan, Ohio and Tennessee. Not surprisingly, with the exception of perhaps Michigan, these are more "backward" states with lower education levels and lower per capita income levels. I'm not saying that there aren't potentially hundreds of thousands or even a few million correctly thinking people in those states, but they're outnumbered, as evidenced by the ignorant policies giving rise to the "argument."

Justice Roberts, of course, who's much more of a conservative than he isn't, suggested that lifting the ban wasn't just allowing people to "join" the institution (of marriage), but would change that institution. Justice Scalia, one of the arch-conservatives on the court who has issued a number of decisions denigrating individual liberties and the rights of working people across the country, of course asked questions about whether or not any society prior to the Netherlands in 2001 permitted same-sex marriage.

That question basically suggests that the United States should never be "first" to do anything right, that we should let at least one (or perhaps one isn't enough in his mind) other countries-countries, clearly, with more enlightened people-do the "right" thing first. Then when it's nice and safe, and after further anguish and suffering perhaps for years or decades, the United States can finally join the middle of the pack. I won't bore you with the rest of the questions and answers, which ran along philosophical lines.

My prediction as a civil rights lawyer? The Court will suggest or actually "do" the right thing, but in a way that still allows states to stay ignorant if they choose; it'll just be harder. I do not think that the Court's going to issue some sweeping proclamations that essentially brush aside both current and future contemplated bans and which affirmatively grant equal marriage rights. I don't think anyone does. But we can hope.

So here's hoping for a huge step to equality on the Journey to Justice. 

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