Senate Democrats have been considering legislation that would codify same-sex marriage in federal law, a move designed to pre-empt any potential damage inflicted by a conservative U.S. Supreme Court on the issue.
The court in 2015 legalized same-sex marriage in all 50 states. The ruling, written by conservative Justice Anthony Kennedy, found that “There is no difference between same- and opposite-sex couples with respect” to marriage. Banning it, as many states had been doing, “denied (to same-sex couples) the constellation of benefits that the States have linked to marriage.”
As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
Denying this violates the 14th Amendment, Kennedy wrote, because “the right to marry is a fundamental right inherent in the liberty of the person.”
The court has changed dramatically in the intervening years. Kennedy retired and Ruth Bader Ginsberg died, shifting power on the court to its most conservative voices. The impact can be seen in the Dobbs decision, which overturned Roe v. Wade and ended federal protection for abortion rights.
Roe was partly decided using the 14th Amendment “due process” clause, which provides that everyone receive equal treatment under the law, along with a “penumbra” of intersecting rights that implied a right to privacy. The Dobbs decision, however, gutted the “penumbra” — which has raised the possibility that conservatives will come for same-sex marriage, getting it before a court that may be receptive to their arguments.
Democrats responded by introducing the Respect for Marriage Act, but now seem unwilling to push a voice. The Hill reported earlier this week that Senate Democrats have “pushed their effort to secure 10 GOP votes until after Election Day, attempting to trade a short-term attack line for a great chance at enshrining marriage equality.” The strategy appears to be to take some of the heat off wavering Republicans — do they exist? — by not forcing them to commit one way or another before voters go to the polls. The trade-off would be their support for breaking a filibuster when Congress returns for the lame duck.
I can’t speak to the strategy — that is not my interest, except in whether it gives the bill a better chance to pass. What it shows, however, is that same-sex marriage, which seemed to be settled as an issue (my students are surprised that it ever was one), is not as settled as one might think.
What follows is a column I wrote in 2007. It shows how the issue is not just one of strategy or dry legislative detail, but that it has real-world impact on real people.
A Rose by Another Name
Stephen Lourie and Frank Pisciotta have been together 30 years.
They own a house and a condominium together, travel together, share everything everything, that is, except legal recognition for their relationship.
That was expected to change Thursday when the couple, who live in The Ponds retirement community, were to be joined in a civil union by Monroe Municipal Court Judge George Boyd.
The couple will be the first in Monroe to take advantage of the recently enacted state civil union legislation, which grants gay and lesbian couples the legal rights and benefits that married heterosexual couples enjoy though, the union is legally not called a marriage.
The law was approved by the state Legislature in December after the state Supreme Court ruled in Lewis, et al, v. Harris that the state’s domestic partnership legislation was discriminatory against gays and lesbians because it granted them only a portion of the rights and benefits the state’s marriage rules gave to straight couples.
It ordered the Legislature to grant gays and lesbians the same rights which include everything from the right to file state taxes jointly to inheritance and child-custody rights.
What it didn’t do was call it marriage.
To me, that seems absurd. The simple fact is that gay and lesbian couples like Mr. Lourie and Mr. Pisciotta, and Sarah and Suyin Lael and Linda Kost and Wylie Willson, of Dayton, have made the same kind of commitment that my wife and I have made and they deserve not only the same rights and benefits but the same level of respect.
"We do have the rights, but we don’t have the name," Suyin Lael said Tuesday. "It is creating another class of citizens."
That’s what Deborah Poritz, who was chief justice of the state Supreme Court when the decision was handed down, meant when she wrote in her dissent that "What we ‘name’ things matters, language matters."
The Laels, who were plaintiffs in Lewis v. Harris, plan to take advantage of their newly won legal benefits they will enter into a civil union Saturday during a ceremony at St. Mark’s Episcopal Church in Teaneck. The law, after all, will have great practical effect "in terms of taxation, health insurance, visitation rights and other things."
That’s how Mr. Lourie and his partner see things.
"We are calling it a marriage," Mr. Lourie said Tuesday. "I don’t care what the state says. A marriage is joined by a civil union. To me, a civil union is a marriage. What else is a civil union?"
He said it "would have been nice if the Legislature termed it married," but it is still a "big triumph."
"To me, a rose is a rose is a rose," he said. "A civil union is a marriage."
Ms. Kost and Ms. Willson took advantage of the new law in its first week South Brunswick Deputy Mayor Carol Barrett officiated at their civil union ceremony on Feb. 23. The couple, together for 26 years, were surprised at the reactions their official union received.
"Because the law was enacted so quickly, I don’t think we were prepared for the emotional and social ripple effects of doing (a civil union)," Ms. Kost said Tuesday.
Those included a variety of people offering their congratulations many of whom had known the couple for years.
"It shifts the way that people look at us," she said, adding that it gives them "a way to think about (our relationship), to put it in a context that makes sense to them."
Like Mr. Lourie, Ms. Kost says the word marriage is less important than the practical effect.
"Our feeling is that it would be great if they do call it marriage, but we already are different so what we call it doesn’t matter," she said.
She does think, however, that momentum is moving in the right direction and that it is more likely than not that civil unions will be recognized as marriages in the not-too-distant future.
"Most people just say married," she said. "I know that’s not what it’s supposed to be called, but people are using that term anyway, so I think it will come very quickly."
Suyin Lael agrees, adding that the state Legislature is "not giving the public enough credit" which is why she plans to keep fighting for full marriage equality and why she also believes the Legislature will come around eventually.
"I think we have to go ahead defining ourselves and our lives," she said. "Once we have the rights, we have to go and get the name. In a few years I don’t think it will be a big deal."
And then?
"We want to have a recommitment ceremony to reconfirm our vows in a couple of years," Ms. Lael said. "And, hopefully by then, it will be called marriage."