“I can only note that the past is beautiful because one never realises an emotion at the time. It expands later, and thus we don’t have complete emotions about the present, only about the past.”
– Virginia Woolf.
On 28th June 1969, the LGBT community in New York rioted following a police raid on the Stonewall Inn, a gay bar at 43 Christopher Street. Today that day is commemorated in an annual tradition more affably known as pride. On 26th June, 2015, the Supreme Court of the United States, in a 5-4 split decision, ruled for marriage equality, making United States the 23rd country in the world where same-sex marriage is legal. We have indeed come a long way as a nation from that summer day in 1969. Sure, it took us 46 years but radical reform does not happen overnight.
1) On 21st September 1996, the 104th United States Congress enacted the Defense of Marriage Act (DOMA). DOMA’s section 3 defined marriage as “a legal union between one man and one woman as husband and wife,” and the word “‘spouse’ as a person of the opposite sex who is a husband or a wife.’’ DOMA’s section 2 proclaimed that no state needed to recognize a legal marriage between a same sex couple performed in another state.
2) On June 26th, 2013, United States v. Windsor, a landmark Supreme Court case, held DOMA’s section 3 unconstitutional. The reason? DOMA’s section 3 defining “marriage” and “spouse” violated principles of Equal Protection by treating relationships that had equal status under state law differently under federal law. The majority opinion was authored by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented.
*The Equal Protection Clause is part of the Fourteenth Amendment to the United States Constitution. The clause took effect in 1868 and provides that no state shall deny to any person within its jurisdiction “the equal protection of the laws.”
Here is some important language from the majority opinion:
“For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”
– Page 24.
“DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its mar- riage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.”
– Page 29.
And here is a choice quote from Justice Scalia’s dissenting opinion:
“A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”
– Page 59.
I started law school in 2013. Ours was the first law school class that read, analyzed, and debated the United States v. Windsor case in Constitutional Law in a law school classroom setting. Then in 2015, I was lucky enough to be among the chosen few to intern for the San Francisco City Attorney’s Office for the summer of 2015. San Francisco City Attorney, Dennis Herrera, filed the first government-initiated challenge to marriage laws that discriminate against same-sex couples in American history, and the SF City Attorney’s office holds the unique distinction of being the only legal team involved as a party in aspect of the legal fight in California.
3) June 26th, 2015. Exactly two years later, on the anniversary of the Windsor decision, the rest of DOMA was held unconstitutional by the Supreme Court ruling in Obergefell v. Hodges in a 5-4 split. The split? The majority opinion was authored by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented. Once again.
When I woke up this morning, I tried to skim the syllabus of the landmark Supreme Court Hodges ruling from D.C. earlier in the day (Yay. West Coast time), but I didn’t have enough time to get through it all before I left for work. At 9:34 am, as I sat pouring over countless pages of a deposition, my supervisor took me and the other two interns over to City Hall. And boy, am I glad she did. Mayor Lee, City Attorney Herrera, and a lot of other city officials who have tirelessly fought the battle in favor of marriage equality since 2004 gave heartfelt speeches about the SCOTUS decision in Hodges.
Here is some powerful language from the decision itself:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”
– Page 16.
“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.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.It is so ordered.”
– Page 33.
And here is Justice Scalia’s dissent:
“This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
– Page 73.
As I stood there in front of City Hall, soaking in the beautiful San Francisco weather, listening to the heartfelt speeches of these city officials, some of whom have been so personally involved (on so many levels) in this long fought battle, I thought about the past and I thought about the future. In 1967, San Francisco experienced the Summer of Love. In the words of Sheila Weller, “the phenomenon washed over America like a tidal wave, erasing the last dregs of the martini-sipping Mad Men era and ushering in a series of liberations and awakenings that irreversibly changed our way of life.” Today, love won and the rest of our nation joins San Francisco in its 2015 edition of a different kind of Summer of Love. Today’s SCOTUS ruling not only paved the way for a lively debate in classrooms about law and policy for decades to come like it did with its Windsor ruling, but today, SCOTUS has possibly paved a new future for our country. In fact, as I type these last few words of this blog post, I can hear fireworks and exuberant screams emanating from the streets outside. Today is definitely a day to celebrate. I look forward to this weekend’s Pride being the best one the city and country have experienced so far. Because our history just got a little richer.
P.S. – For the inquisitive, the Netherlands was the first country to legalize gay marriage in 2000.
While I cannot attach a video with this post, here’s the link to Dennis Herrera’s full speech today in front of City Hall.
San Francisco City Officials issue a statement on the United States Supreme Court decision in the Obergefell v. Hodges marriage equality case. June 26th, 2015.
City Attorney, Dennis Herrera, addressing the crowd following the United States Supreme Court decision in the Obergefell v. Hodges marriage equality case. June 26, 2015.