A little more perfect union

Posted Saturday, June 27th, 2015 by Gregory Forman
Filed under Divorce and Marriage, Law and Culture, Not South Carolina Specific, Of Interest to General Public

It seems fitting that I was at the TD Arena with my family awaiting President Obama’s eulogy for Clementa Pinckney when the United States Supreme Court announced its decision in Obergefell v. Hodges, which established a right to gay marriage throughout the country.  Both events seem part of America’s grand struggle to live up to its promise of “life, liberty and the pursuit of happiness.” Both events help make this country a little more perfect union.

Few are surprised by the Obergefell decision and I am not surprised that Justice Anthony Kennedy drafted the majority opinion,^[1] as he has now authored all four of the major United States Supreme Court opinions upholding gay rights.^[2] His concluding paragraph is worth reading for the simple beauty of his appreciation for the institution of marriage:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

My main surprise in the Obergefell decision is Chief Justice Roberts’ dissent. While Roberts acknowledges that marriage is one of the few rights that is not enumerated in the United States Constitution which is protected by substantive due process, he argues that each state may democratically decide how to define marriage. This begs the question: if some liberal state decided that marriage could only be between partners of the same gender, would Justice Roberts determine that this passes constitutional muster? My marriage should not be subject to the democratic process and it was unfair to homosexuals to expect them to be patient and let the democratic process “work.”

Still the pathway to marriage equality in the United States has been remarkably quick by the standards of most civil rights struggles. In 1972, the United States Supreme Court issued Baker v. Nelson, 409 U. S. 810, a one-line summary decision, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question. In my 1989 Constitutional Law class we read Bowers v. Hardwick, 478 U. S. 186 (1986), which allowed states to criminalize homosexual acts.  This remained the law of the land until the Lawrence v. Texas, 539 U. S. 558 (2003) decision. I’ve followed the issue of gay marriage since the 1993 Hawaii Supreme Court decision of Baehr v. Lewin, 74 Haw. 530, 852 P. 2d 44 (1993). The first homosexual marriage in America did not take place until 2004 in the aftermath of the Massachusetts Supreme Court opinion Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003). Progress on this issue has come remarkably fast–unless you were a homosexual wanting to get married or wanting to have your marriage valid throughout the United States.

Clementa Pinckney’s memorial service was a moving reminder of how far we remain from a truly just society. The mass incarceration, extreme rates of poverty, higher rates of mortality, shocking levels of gun violence, and substandard schools for many African American youth demonstrates that America’s original sin of slavery has yet to be rectified. Yet the memorial service I attended would have been inconceivable forty or even twenty years ago. Among the honored guests were our African American Senator, Tim Scott, our Indian American–and female–Governor, Nikki Haley, and our female frontrunner for President, Hillary Clinton. And of course our speaker was our first African American President, who was able to speak more openly and credibly about racial injustice than any President in history.^[3]

In contrast to the civil rights struggles of the 1950’s and 60’s, this rally not only had the strong support of state and local government, it had the sponsorship of our state and local government. Yet while Clementa Pinckney’s death may provide the impetus for South Carolina to remove the Confederate Battle Flag from the Statehouse grounds, I doubt it will lead South Carolina to address gun violence, the racial imbalance in the criminal justice system, or the substandard schools that our own Supreme Court has found constitutionally deficient. I doubt it will even convince our state to accept the Medicaid expansion that would provide better health care for many poor citizens at little expense to our state. As eloquently as President Obama can advocate for addressing these problems as a way to honor the too many African Americans killed by senseless violence, I doubt a Republican Congress or state legislatures will do so in the near term [with the possible exception of criminal justice reform]. So long as conservatives argue these problems are almost solely cultural, and liberals argue these problems are almost solely political, there is little opportunity for compromise.

And thus civil rights for African Americans remains a two-steps-forward/one-step-back problem. While the situation for African Americans has greatly improved during my lifetime, it has not improved nearly as much as the situation for homosexual Americans. Further America’s slow progress on racial justice is of little consolation to African American youths trapped by grinding poverty, poor educational opportunities, and unsafe neighborhoods. In Obergefell, Justice Kennedy did not ask gay Americans to be patient, but for four centuries we have asked African Americans to remain patient.  The grace demonstrated by the Mother Emanuel African Methodist Episcopal Church is truly inspiring. I couldn’t be so patient in the face of continuous personal discrimination.

As the Obergefell opinion and President Obama’s eulogy note, all Americans just want to feel safe and appreciated within our community and want to provide better opportunities for our family and children.  On June 26, 2015 America became a little more perfect union.  Much hard work remains to be done.

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[1] A moment to ponder where gay rights in America would be if Robert Bork had been confirmed for the seat that Justice Kennedy eventually got.

[2] Justice Kennedy’s three previous opinions being Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U. S. 558 (2003) and United States v. Windsor, 133 S.Ct. 2675 (2013).

[3]Imagine Lyndon Baines Johnson giving Martin Luther King’s eulogy in 1968 if you don’t think we’ve made racial progress.