Many parents struggle with how to talk to their kids about marriage equality. In what follows, a former Supreme Court law clerk, top appellate litigator, and mother of two middle-school-age children explains the Supreme Court’s recent decision in Obergefell v. Hodges, which recognizes the fundamental right to marry for same-sex couples. Originally written as a letter to her kids away at summer camp, the piece combines honesty and humor with lessons in empathy and constitutional law. The letter has been lightly edited for publication here.
June 26, 2015
Dear S and B,
Do you know what the symbol at the top of this letter is? It’s the Chinese symbol for double happiness. I’m sending it to you because today was another huge day in the Supreme Court.
The Justices ruled that there is a fundamental right to marry, and it includes same-sex couples. I know you are thinking that you knew this all along, and I thought that this would be what they would decide as well, but now the opinion is out, and we won (5 to 4)!!
The opinion talks in detail about the loving relationships of the plaintiffs—the men and women who brought the cases to make the law more fair. The lead plaintiff, Jim Obergefell, was from Ohio. His partner, John, had ALS, a disabling disease that affects nerve cells and prevents muscles from working right. After marriage for same-sex couples became legal in Maryland, Jim and John flew there on a medical charter flight. They couldn’t get married any other way because of John’s illness, and because same-sex couples weren’t allowed to get married in Ohio. The person who performed the wedding came to the airport and they were married right there on the tarmac. Then they flew back home.
Anyway, John died a few months later, and when he did, the state of Ohio would not record on his death certificate that he had been married to Jim. It felt to Jim like his home state was erasing him from his husband’s life, and he didn’t think that was fair. You know how sometimes you say that some people treat other people like air? Well, that’s how Jim felt the state of Ohio was treating him and his marriage. So Jim sued to make sure that Ohio would have to recognize marriages performed in other states and treat him as equal to any other husband.
Other couples who had been together for years and years sued to make their states grant them marriage licenses. One of them was a lesbian couple from Michigan, April DeBoer and Jayne Rowse, who adopted three kids with special needs whose biological parents had abandoned them. But Michigan wouldn’t let April and Jayne get married, so only one of them was recognized as the parents of the kids. Crazy!
Anyway, you already know what happened … The Supreme Court said that under the Constitution, there is a fundamental right to marry, and states can’t deny it to same-sex couples.
Some things you might still be wondering about are what is a fundamental right and where does it come from, and how does a Supreme Court Justice know which rights are fundamental?
Well, the Constitution expressly refers to some fundamental rights—for example, the rights to freedom of speech and of the press and of religion and the right to be free from unreasonable searches and seizures (the police can’t arbitrarily walk into our house and start going through our stuff, which is good, since then they would know how sloppy my desk is!). Marriage isn’t specifically mentioned like these rights, though.
What to do? Well, the Constitution does guarantee that a state can’t deprive people of “life, liberty, or property” without due process of law. That is part of the 14th Amendment, and it was passed after the Civil War, when the Constitution was amended to end slavery and to make sure that states would stop discriminating and treat people more fairly. You may notice that the words “fundamental rights” and “marriage” do not appear there either, but “liberty” is there, and there is a long line of decisions holding that there are some aspects of individual liberty that the government has to respect, even if they aren’t specifically mentioned.
One example is a right to decide whether or when to have children. We view that as a personal/family decision, not something that the government gets to dictate. You both know all about the one-child policy in China. The government there said to the people that each couple only gets to have one child. So different from our culture. Can you imagine the government telling you that you can only have one kid? Or if you did only want to have one or two kids, or none, could you imagine the government preventing you from using birth control so that you could make up your own mind about that? I don’t think that would get a double happiness symbol. Remember Margaret Sanger? She didn’t think laws prohibiting birth control should get a double happiness symbol either. Remember how hard she had to work to make birth control legal and available!
Speaking of kids, you would both be great and wonderful parents when you grow up, because you are loving and caring people. Have I ever mentioned that? And Mama and I will do whatever we can to help you if and when you do want to have kids. It’s a little early now, I know! 🙂 And if you’re especially lucky, your own kids will love summer camp as much as you do!
Anyway, another fundamental aspect of liberty is the right to marry. In fact, one of the most important cases the Supreme Court relied on here was Loving v. Virginia, in which the state of Virginia wouldn’t give a marriage license to two people because one was white and the other was black. Can you imagine?! It wasn’t even that long ago: 1967. Well, I was alive, anyway, but I guess it is getting to be kind of a long time ago now.
One of the important things about the Loving case is that it’s also about both marriage and discrimination. The whole purpose of the law was to send a message to black people that they weren’t good enough. It makes me sad to think that governments would spend their time passing laws like that and that people in our country actually spent their time and effort and money to get laws like that passed. It’s pretty hard to understand. What do you think?
The other important thing about Loving v. Virginia is the great name of the case. The case is about marriage, and the couple was really named Loving. I’m not sure if it was before or after the case that the state of Virginia adopted the travel slogan, “Virginia Is for Lovers,” but they did! Obergefell doesn’t have quite the same ring to it. Ohio is for Obergefellas? Oh well!
Another important case about protection of liberty is called Lawrence v. Texas. That case says that the police can’t arrest a grown man for having sex with his boyfriend in his own home. That really happened. And you can see that here again it’s both a question of fundamental rights—criminalizing the ability to have intimate relationships—and discrimination—the law targets gay people.1
Notice how in all of these examples, the right at issue has to do with something that is deeply tied up with the most important personal relationships of a person’s life and their sense of self. Different from the “right” to play videogames for five hours per day, or to drink gallons of sugary soda, for example.
So what the Supreme Court did today is that it looked at all these prior cases and it said that these laws banning marriage are just like these earlier cases. The anti-marriage laws take away something super-important to human happiness and they discriminate against gay people without any good reason.
Facebook exploded with joy.
I had a hard time working all day! I called Mama first thing. Do you remember that at the nice lunch we had when Mama and I got married in 2008, I made a bet with Grandpa Mike that we would have marriage in the whole country within 20 years. That would have been 2028. We bet 5 dollars. But now it’s only 2015, so I won by 13 years! Should I remind him about the bet?
You probably also want to know about the judges who didn’t agree (the dissenters), since you remember that I told you at the beginning that the decision was 5 to 4. Well, there were four separate dissents—a big waste of paper. Here are the most notable things about the dissents.
First, not a single one of them said that being gay is bad or wrong. That fact shows you how much the world has changed in just the last decade. They mostly said that it’s very hard to know what rights are fundamental and what rights are not fundamental, so the Court should go ahead and leave it to the democratic process to decide who can get married. When they talk about the democratic process in this context, they are referring to state legislatures and initiative processes—like Prop 8, ahhhhh, horrible, don’t get me started on that! Anyway, none of the dissents gave even a remotely decent explanation for why discrimination should be OK and why the Constitution shouldn’t protect gay people, just like everyone else.
Scalia’s dissent was something that, if either of you wrote it, I would tell you that you had to go back and try again. Remember all the time we spend talking about social media rules and kindness. Well, Justice Scalia basically violated all those basic rules 10 times over. Except, instead of just creating a fleeting Twitter or Snapchat post, he put it all in a published Supreme Court opinion. Since he didn’t want to be seen as being mean to gay people, he focused on mocking Justice Kennedy, instead. And the two of them are going to be working together for the rest of their lives until one of them retires. I guess Justice Kennedy will figure that Justice Scalia is just a bad sport and a poor loser. You guys have way more maturity and self-control than Justice Scalia. He even stuck in a “Really?” and a “Hunh?”—one of my pet peeves, as you know—as if doing that is going to persuade anyone.
Anyway, in the evening, there was a big rally at West Hollywood Park. I went for a bit, but without Mama and you guys it wasn’t that fun. Too many politicians, too. But I did learn about the double happiness symbol that I started off with, so that made it worthwhile. One of the speakers was Eileen Ma from the Asian Pacific Islanders gay and lesbian group, and she talked about the double happiness symbol and having marches for gay rights in Chinatown and Koreatown. I think you would have liked hearing about that. Imagine being a teenager or a young adult in an immigrant family from China or Korea and explaining to your parents who maybe don’t speak English that well and don’t know any gay people, that you’re gay.
I need to tell you just a couple more things about this opinion and what it means to me and to our family. First, it means that when we travel around the United States, no matter what state we go to, Mama and I will always be treated as married. That means, for example, that if we have an accident on a trip or you have an accident, and we have to go to the hospital, they won’t give us a problem. Maybe it also means that the next time we come through passport control at LAX, they won’t ask us a bunch of dumb questions about our family. That will be an interesting test!
Second, what I really want you to know and understand is that this decision didn’t just happen because it is the right result. It came about because of people like you standing up for fairness and not being afraid. Or it’s probably more accurate to say that it is because people like you were willing to stand up for fairness even though they were afraid.
Some of them were afraid they would be arrested, like John Lawrence and Tyron Garner. And remember Alan Turing, who you learned about when we were in England and who broke the Nazi code during WWII? He was arrested too. Some of them were afraid they would lose their jobs. Some of them were afraid their parents would stop loving them. Some of them were afraid their friends would reject them. Some of them were afraid they would be beaten up if they walked down the street holding hands with their boyfriend or girlfriend. But they also knew in their hearts that those kinds of reactions were unfair and that eventually, if enough people spoke up, they could make a change.
And it wasn’t just gay people who had to speak out even though they were afraid. It was their parents and friends (think of all your wonderful grandparents). And it was their kids, too, including the two of you.
Standing up for fairness didn’t start with gay rights, of course. Each of the cases that made today’s decision possible involved huge numbers of people standing up for fairness in other contexts, even though they were afraid. This was true of the birth control movement, and it was true of course of the civil rights movement, where people faced serious physical violence and arrest for doing things like trying to register people to vote or eating lunch at a segregated restaurant.
One of the reasons I’m so proud of you both is that you have a very strong sense of fairness. Not everyone does. If you ever feel afraid to do something that you know is important, I hope you will think of some of these people who helped us to have a better country even though they were afraid too.
I love you both. Tell me what you are doing and how everything is going at camp! You don’t have to write a long letter like this!
- The case doesn’t really talk about racial discrimination, but you would be interested to know that one of the guys who was arrested, John Geddes Lawrence, is white, and the other, Tyron Garner, is black. Do you think the Houston, Texas, police would have come into the home and arrested them if they were both white? The reason the police went in was that someone had reported a weapons violation, but the guys weren’t arrested for having any weapons. ↩