Musings on Windsor and Perry and a Better Day for America

Having spent this week glued to SCOTUSblog, absorbing all the major rulings while waiting for the marriage decisions, it feels a bit like the withdrawal I used to treat in some of my emergency room patients. As we've learned over the years, addiction is addiction, the same pathways mediating substance addiction, sexual addiction, shopping addiction, and, I guess, SCOTUS addiction. So I feel entitled to a little withdrawal, celebration, and musing on how the world continues to change rapidly and yet leaves some people and some problems behind. And I'm not referring to the religious fundamentalists being "Left Behind," either.

I see these marriage victories, like the others, as part of a normalization process. Gay people should have the right to marry each other just as straight people do. Simple. And to divorce, just as straight people do. Our relationships, while no better, are no worse, either. It doesn't sound like much, but to me it's everything. That no child should have to suffer as so many of us did, with little hope for a decent future, is the point. That is a moral choice for our society, and these decisions take a moral stance in support of the U.S. Constitution.

As an example of how gay couples are quickly becoming normalized, a New Yorker was allowed to file for a green card for his partner Wednesday morning when his foreign national partner's deportation hearing was stopped because the DOMA decision had just been delivered to the judge. Another friend complained that while there may be a bunch of gay couples looking forward to paying their federal taxes next year -- jointly -- she and her wife will be paying the marriage penalty. And others in California look forward to the Perry decision being implemented in three weeks not because they will be able to get married in their state, but because it will remove legal impediments to their divorces. Not everyone married in the California wedding rush in 2008 did so thoughtfully or enthusiastically, and some have simply discovered what straight married couples have known for a long time. Sometimes it just doesn't work out. Mistakes are made. Welcome to the real world.

That real world, though, increasingly recognizes, as Justice Ginsburg has said, that "a prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded." Leveling the playing field. You may not be entitled to get a job or keep one, because ENDA hasn't passed (and there has been little effort on the part of the movement to make it happen) and Title VII doesn't yet cover all gay persons (just the gender non-conforming ones), but you can get married and be recognized by your government. For those who are covered by Title VII, our rights were restricted a bit more by this week's Supreme Court decisions, Vance v. Ball State University , No. 11-556 (June 24, 2013) and University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (June 24, 2013), but not any more or less than anyone else's. That's still progress. More of us are in it together.

This normalization process is exemplified by Edith Windsor, the 83-year-old plaintiff in the DOMA case, who told the press: "As we increasingly came out, people saw that we didn't have horns . . . It just grew to where we were human beings like everybody else." I can't help laughing at that, because I have to wonder, as she probably has, how different, in the mind of the ignorant, are the horns of gay Jews from those of straight Jews? She has dealt with exclusion in her many identities, as have I and many who are reading this. It's all very different, yet still all very much the same.

As for the trans take on all this, well, trans people are often married when they transition, so these rulings add comfort to knowing that the complicated politics of gendered identity will have less impact on their relationships, particularly when they dissolve or inheritance issues arise. Courts will be less likely now to rule a trans person's marriage invalid because of ignorance of the concept of gender identity. A marriage is a marriage, and won't matter whether the trans person's marriage is viewed as same or opposite sex.

More importantly, however, are Justice Kennedy's words, words that will have a direct impact on the lives of trans and gay individuals in future litigation and legislation. When he wrote in United States v Windsor, Executor of the Estate of Spyer, et al., No. 12-307 (June 26, 2013), he said of DOMA, a law which discriminates against an unpopular group, that it had the effect of "diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect." He also stated that the "avowed purpose and practical effect" of DOMA was to "impose a disadvantage, a separate status, and so a stigma on all who enter into same-sex marriages made lawful by the unquestioned authority of the States," a fact exposed by Justice Kagan during oral argument with Paul Clement. She quoted from the House committee report providing the rationale for the 1996 passage of DOMA: "Congress decided to 'reflect and honor a collective moral judgment' and to express 'moral disapproval of homosexuality.'"

Justice Kennedy is talking specifically about marriages here, but these words apply even more forcefully to us all as individuals. And with those words, we can look forward with hope to being covered by the Fifth Amendment's liberty clause: nor be deprived of life, liberty, or property, without due process of law, and enhanced by "the equal protection guarantee of the Fourteenth Amendment [that makes the] Fifth Amendment right all the more specific and all the better understood and preserved."

Since Justice Scalia, the swing vote for us in Hollingsworth, et al. v Perry, et al., No. 12-144 (June 26, 2013), laid out the path for full marriage equality in his dissent, we already have the playbook. And while we need to organize to fight the gutting of the 1965 Voting Rights Act (a blatant "thumb in the eye" to the overwhelming will of Congress in 2006 (98-0 and 390-33)) and the restrictions on Title VII of the 1964 Civil Rights Act, we can take comfort in noting that on some days America does get it right.