James Obergefell and John Arthur lived together for 20 years. In 2011, Arthur developed ALS, a disease with no known cure. The two decided to marry before Arthur died. Because their home state, Ohio, did not permit same-sex marriage, they travelled to Maryland, which did, and were actually married inside a medical transport plane on the tarmac, since Arthur was by then unable to move. Three months later, Arthur died. Obergefell brought a suit to be listed as a surviving spouse on Arthur’s death certificate.
April DeBoer and Jayne Rowse, residents of Michigan, celebrated a commitment ceremony in 2007. Both trained nurses, they adopted three children with extensive medical needs. Michigan law, however, did not recognise their union, so their children faced numerous legal risks and disabilities should one of them need hospital care, and even more should one of their parents die.
Army Reserve Sergeant Ijpe DeKoe married his partner, Thomas Kostura, in New York, before he was deployed to Afghanistan. Because they now work in Tennessee, which did not recognise same-sex marriage, their lawful marriage was not recognised where they live, creating uncertainty should one of them fall ill or die.
These are the plaintiffs who entered history last week, when the US Supreme Court ruled that all states must now recognise same-sex marriage. But their stories stand for thousands of stories of men and women across the US who are celebrating their recognition as citizens of equal dignity. We have all known for a while that this result was likely in the offing, but the reality brings tears of astonishment and joy.
The legal issues are subtle and complicated. One fault in all of the opinions, majority and dissents alike, is that the reader can’t see that complexity. All the opinions were written for the media and the history books. If you want to understand debates about the relationship between the due process clause and the equal protection clause, about the scope of substantive due process, and about the vexed question of unenumerated fundamental rights and the judicial role in defending them, you will need to turn to other cases and to law journals. Justice A. Kennedy has uplifting things to say about equal dignity, but his analysis (as is often the case in his opinions) does not fully settle these hard legal questions, although they are clearly best settled in his direction. The strength of his opinion is in its insistence that marriage has always evolved and changed, and that this new phase represents not a subversion of the institution, but a strengthening by more equal inclusion. “The nature of injustice,” he rightly observes, “is that we may not see it in our own time.” His patient effort to document injustices to gays and lesbians — including the bizarre patchwork of rights that make couples and children insecure whenever they cross state lines — tells people what many already know, but it gives recognition and stature to the pursuit of justice in which so many have been engaged for so long.
What happened? Until 2003, same-sex “sodomy” could still be a criminal offence. Now, in 2015, same-sex couples have a constitutionally protected right to marry across the nation. What explains this rapid shift, which is strongly supported by public opinion? Hollywood certainly played a large part, as both film and TV gradually introduced the reality of gay and lesbian lives to a wide range of Americans, with grace and charm. Perhaps more than any other single creation, the sitcom Will and Grace showed audiences that gay men were not monsters, but complex human beings capable of friendship, some longing for love and a settled lifestyle, some more focused on fun — rather like straights, in fact. (The two gay men in Will are sometimes hard to distinguish from the two straight bachelors of Two and a Half Men, except that the former are funnier and kinder.) But the bigger story was people coming out to their families, friends and even classmates. People change when they learn that someone whom they love already is gay or lesbian; or, through friendship and talk, come to see the world through the eyes of such a person. The stories told at the opening of the case reminded us that this transformation has, at its root, been a tale of the stories we tell and permit ourselves to hear.
Fifty years ago, as a teenage actress, I had a huge crush on a fellow actor, a gifted, funny and kind man. Then, observing him closely, I realised he was gay, with a long-time partner who visited him on weekends. The two had exchanged rings as a token of commitment. I was disappointed, but soon curiosity and sympathy took over. Why in the world, I wondered, could these men be open about their love in our little world of the repertory theatre, but not in larger society? What was wrong with America that good people were forced to hide their love? I though it absurd, unjustifiable. I’ve been on the barricades ever since. But times do sometimes change for the better. When I dedicated my 2010 book on sexual orientation law to that actor, he wrote and told me he is now happily married.
I was lucky to be in the theatre, where I learned early to care for people who were being deprived of equal dignity. But recently, particularly after the legalisation of same-sex sex acts, more or less everyone knows people who are gay and lesbian. Everyone knows their friends and children might come out at any time. And a growing majority of Americans believe that it is strange and repugnant to push these people to the margins of society, denying their love equal respect.
India has a long way to go on the journey to equal dignity. The repeal of Section 377 is an urgently necessary first step, so that people will come out without fear of the law. But since stories are where the action is, Bollywood needs to take a more active role; bold in matters of communalism, it has been quiescent, virtually Victorian, in matters of sex. Above all, we all — Indians and friends of India — need to tell many stories about gay and lesbian lives, about the harm done to families and children by the denial of equal dignity, and about the manifold ways in which gay and lesbian lives, honoured and included, enrich the lives of all of us.
The writer is Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago. She is author, among others, of ‘Political Emotions’.
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