Every civil rights movement endeavors to create a world without privileged places from which individuals or groups of people are excluded solely because of personal characteristics. Concerns for both human dignity and the core principles of liberty and equality demand at least this much. As Justice Ginsburg stated for the majority in United States v. Virginia, the story of our Constitution is the extension of constitutional rights to people formerly ignored or excluded. At the same time, each struggle is as different as the larger culture's myriad reasons for and methods of excluding people from these places.
One commonality among a number of civil rights struggles—for women, African Americans, and now gay and lesbian Americans—is access to and treatment within civil marriage. At the time of our country's founding, the medieval coverture system applied to marriage, limiting men and women alike to legally prescribed roles. It was not until the mid-nineteenth century that state courts and legislatures began the lengthy process of dismantling that regime. We now take it for granted that marriage is an institution of formal legal equality in which marital rights and obligations are mutual and not gender based.
At one point, thirty-eight states and two territories forbade marriage between whites and people of color. State courts upheld these laws numerous times. In 1948, in a bold four to three opinion authored by Justice Traynor, California's supreme court broke the logjam on interracial marriage bans. The decision in Perez v. Sharp led states to repeal their laws and paved the way for the U.S. Supreme Court in 1967 to declare the thirteen remaining anti-miscegenation laws unconstitutional in Loving v. Virginia.
For gay and lesbian Americans, the right to civil marriage remains off limits. But cases pending in the Massachusetts Supreme Judicial Court (Goodridge et al. v. Department of Public Health, litigated by the public interest law firm of Gay & Lesbian Advocates & Defenders) and the New Jersey Superior Court (Lewis v. Harris, litigated by the public interest law firm of Lambda Legal Defense) seek to end the exclusion. Goodridge has been briefed and argued to the Massachusetts Supreme Judicial Court. The New Jersey plaintiffs are waiting for a decision on the state's motion to dismiss.
State constitutional guarantees of liberty and equality support the claims of the fourteen plaintiff couples (seven in each case) in Goodridge and Lewis. The plaintiffs-some of whom have been together for as long as thirty-two years, and the majority of whom are raising young children-seek the same right to marry the person of their choice as is enjoyed by their heterosexual relatives, friends, and neighbors.
All of the plaintiffs seek to marry for a very simple reason: they love each other profoundly and exclusively. They believe marriage will be good for them and their children, just as it is for other people. Just as our culture does, these plaintiff couples view marriage as the ultimate expression of love and commitment. Each has felt the sting of exclusion. As California's Justice Traynor correctly and courageously stated decades ago, denying people the right to join in marriage with the person of their choice is to deny them their dignity and humanity, to treat their relationships as "interchangeable like trains" although the chosen person is to them "irreplaceable."
More concretely, each of the plaintiff couples has experienced firsthand how marriage is the sole gateway to unique legal protections. Each state ties hundreds of legal protections for families to marriage-everything from survivorship rights to workers' compensation protections to family medical leave hinges on the marital relationship. Among the 1,049 federal rights and obligations tied to marriage, according to a 1996 General Accounting Office study, are pension survivorship rights, social security protections, and family immigration policies.
The current litigation demonstrates just how little the states have to rely upon in continuing to exclude same-sex couples from marriage. Dominating the defense for both Massachusetts and New Jersey is a separation of powers argument: that the issue should be decided by the legislature, not the courts. The historical parallels are eerie. California argued that the legislature should decide in the Perez case, as did Virginia in the Loving case. Surely the issue of exclusion of gay and lesbian couples from marriage could be rectified by a legislature, but the institutional obligation of the courts must include deciding when a line drawn by the legislature transgresses constitutional limitations. Courts did not send the plaintiffs packing to their local state houses when marital exclusions were based on race, poverty, or even incarceration status.
Massachusetts also has relied on procreation, i.e., the begetting of children through a particular sexual act, as the raison d'etre of marriage to justify the couples' exclusion from marriage. Like all other states, Massachusetts allows infertile and aged individuals to marry and remain married. In law and culture alike, marriage is about the love and commitment of the couple regardless of procreative capacity or intent. The state advanced child rearing as a justification, too, but reality and science land squarely on the plaintiffs' side. Children raised by gay and lesbian parents would benefit if their parents could marry, just as children in other families do. Moreover, child-rearing experts in the American Academy of Pediatrics, the American Psychiatric Association, and the American Psychological Association insist that the love and commitment of two parents is most critical for children-not the parents' sex or sexual orientation. Among other things, they reassuringly point to thirty-five years of studies showing that children of gay and lesbian parents are normal and healthy on every measure of child development.
The plaintiffs in both states seek to avoid the remedy issued in 1999 by the Vermont Supreme Court in Baker v. State of Vermont. That court found that the plaintiffs were entitled to the rights of marriage but left the final remedy to the legislature. Thus the court separated "marriage" from the protections associated with it, and so did the legislature, by enacting a separate civil union law whereby parties joined in civil union are accorded the rights of spouses for purposes of all Vermont laws. Like the Vermont plaintiffs, the Massachusetts and New Jersey couples seek an end to their exclusion from civil marriage, not a new status just for gay people. We cannot ignore the obvious: one of the most important protections of marriage is the word itself, because everyone knows it stands as the ultimate expression of love and commitment. Regardless of whether others approve of a particular marriage, they respect the status.
What of the states that have passed some form of anti-gay, anti-marriage law, modeled on the ironically named federal Defense of Marriage Act (DOMA)? As in any civil rights movement, there are layers upon layers of discrimination to address. Policy wonks and constitutional law experts alike expect these laws will not survive the test of time. Perhaps when heterosexual people begin living alongside married gay and lesbian couples and realize that nothing has been taken from them or their own marriages, these laws will be repealed.
Shifting Public Opinion
That public opinion is moving-year by year-is palpable. Beyond the visibility of public discussion and increasingly favorable opinion polls, the amici curiae briefs filed in Goodridge cast the case as mainstream. Leading law firms in Massachusetts, representing experts in areas from history to procreation to constitutional methodology, urged the court to end LGBT exclusion from civil marriages, as did the Massachusetts and Boston bar associations. By contrast, the fifteen amici briefs filed in support of the state's ban rely heavily on religion and religious views of marriage. Although such arguments merit respect in the religious realm, no single religious view may set the entrance requirements for state-created and state-regulated civil marriage. It is for that reason, for example, that a religious institution may refuse to marry a divorced person but the person can remarry under the rules for civil marriage.
Formal legal equality is not the end of a civil rights struggle, as the experiences of women, African Americans, and religious and ethnic groups prove regularly. But formal equality is one end of any civil rights movement. Ending the exclusion of gay and lesbian couples from civil marriage would honor the letter and spirit of our Constitution. Additionally, as with other civil rights movements, it would acknowledge that gay and lesbian people and families already are part of our communities and that their exclusion advantages no one, serving only to degrade these families and the communities of which they are an integral part.