Anticipating the Supreme Court Marriage Arguments – End of an Era


Posted on April 27th, 2015 by Katherine Franke

by Suzanne Goldberg

Hurtling down to DC in the Acela’s quiet car for the Supreme Court oral argument in the marriage cases tomorrow, I am overcome with the sense that this is an end-of-an-era trip of sorts.

By this, I am not suggesting that all of the serious legal issues and real-world harms experienced by lesbians, gay men, bisexuals, and transgender people will be resolved by the Court’s ruling.  Those continue in force, as we know from media coverage of hate crimes, school bullying, and workplace discrimination, among other issues.

Instead, what I mean is that exclusions of same-sex couples from marriage are the last vestige of old-school antigay laws.  These laws emerged in a different time, when disapproval of gay people was seen by many as part of the natural order rather than in tension with American commitments to equality.

Through a decades-long process of social and legal change, we are no longer in that place.  Instead, laws that impose extra burdens on gay people are now increasingly understood as aberrant and impermissible.

As a very recent example, consider the widespread outrage against Indiana’s recent law designed to allow discrimination against married same-sex couples.  Even a handful of years ago, that would have been difficult to imagine. Yet earlier this month, major corporations, the National College Athletic Association (NCAA), and civil rights and faith leaders around the state of Indiana and nationally came together to object – very publicly – to what they characterized as a “license to discriminate.”

So, when I think back to my trip to DC in 1995 for the oral arguments about a Colorado measure that forbid governments from protecting gay people against discrimination, or my trip in 2003 for the Texas “homosexual conduct” law arguments, or even two years ago for the arguments regarding the federal Defense of Marriage Act, it does feel like a very different time.

In each of those cases, the Supreme Court struck down a law that imposed a special burden on gay people and no others.  And each time, the Court rejected not only the governments’ proffered reasons for the discrimination but also the underlying idea that states could legally burden gay people based on popular dislike or disapproval.

The state laws that will be argued about on Tuesday morning – refusals to allow same-sex couples to marry and to recognize those couples’ valid marriages – are of a piece with those older laws by their singling out gay people, categorically, for legal harm.

For this reason, and because these laws are such outliers in a country where the majority of states – and people – oppose this type of blatant antigay discrimination, we are, as we should be, reaching the end of a time when governments can treat their gay constituents as strangers to the law.

This is the point the Supreme Court made when it struck down Colorado’s antigay law in 1996.  It is a point whose time has come for the remaining vestigial marriage bans nearly twenty years later.

It will be interesting to hear how the oral arguments engage this history.   And when the Court issues what is likely to be a favorable decision sometime before the end of June, it will be even more interesting,- and gratifying – to be part of a nation where these damaging laws will no longer be with us.

Suzanne Goldberg filed an amicus brief in the marriage cases, together with Henry Monaghan, on behalf of the Columbia Law School Sexuality and Gender Law Clinic.

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