October 8, 2020
Statement of GLAD’s Civil Rights Project Director Mary L. Bonauto
When our community secured recognition of our right to marry at the Supreme Court in 2015, we had been making and winning the case for the humanity, dignity, and equality of all LGBTQ people and families under the US Constitution for decades. Those willing to join with us in this fight expanded over the years, as families and neighbors alike recognized the fundamental freedoms at stake.
Justice Thomas’s recent concurrence in Davis v. Ermold, joined by Justice Alito, contains no surprises on substance: these Justices have already stated their positions favoring LGBTQ specific exceptions to the law, even as our Constitution refuses to “tolerate classes among citizens.”(Romer v. Evans, 1996).1 But it is disappointing to see members of the Court choose this stratospherically political moment – on the eve of both a divisive election and a rushed confirmation process for a new Associate Justice – to raise the stakes and try to thrust the Court into a maelstrom by essentially inviting challenges to Obergefell. Millions upon millions of American people and families, along with businesses, schools, insurers, to name a few, rely on it and believe it is right.
Obergefell was not writing on a blank slate and it’s silly to pretend otherwise. Past changes in marriage showed the way. Choosing the person you will marry is a “vital personal right,” the Court said in 1967, and the choice of whether and whom to marry belongs with the individual, not the government. (Loving v. Va., 1967). States make their marriage laws, from who can marry to the rights and responsibilities of married couples, and States are therefore accountable for inequalities in their laws. Laws denying same-sex couples the ability to join in marriage – an institution touching nearly every aspect of life and death – even as they are willing to abide by the same rules, make the same commitment, and assume the same responsibilities as others who marry – violate, as Obergefell said, “central precepts of equality.” The Court’s opinion in Obergefell also explained why marriage is a fundamental right – linking it to constitutional protections of personal autonomy, familial and parenting choices, along with the massive role marriage plays in the social order, all of which applied equally to same same-sex couples. Marriage has never been static and ending the exclusion of same-sex couples was simply another in a long line of such judicial and legislative changes.
Trying to push LGBTQ people out of the Constitution will not work. We will stand against efforts to move our country backward, to compromise rights and responsibilities, or to make it harder for people to care for themselves and their families and contribute to their communities. Through relationships forged as friends, family, coworkers, and members of faith communities, through the democratic process and the judicial process, LGBTQ people are rooted in the fabric of this Nation.
1 517 U.S. 620, 623 quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion).