Then Comes Marriage (6 page)

Winning
Lawrence
was huge, since it meant gay Americans no longer had to fear being arrested merely for their private intimate behavior. But even better was the fact that, although he was careful to say the case was not about gay marriage, Justice Kennedy seemed to suggest, however obliquely, that marriage equality might one day become a reality. He wrote that antisodomy laws “seek to control a personal relationship that,
whether or not entitled to formal recognition in the law
, is within the liberty of persons to choose without being punished as criminals.” Suddenly, the Supreme Court was at least recognizing the possibility that gay relationships might one day be entitled to formal recognition.

Justice Kennedy's wording was enough to send Justice Antonin Scalia into a full-scale counterattack. In his dissent in
Lawrence
, Justice Scalia used highly politicized language to comment:

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists. . . .

Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.

Justice Scalia then went on to draw a direct parallel between the Court's reasoning in
Lawrence
and marriage equality:

Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” . . . ? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.

In 2003, Justice Scalia believed that Justice Kennedy had thrown open the door for marriage equality. As it turned out, his prediction was 100 percent accurate.

BACK IN 1992,
while I was clerking in Boston, Judge Wolf thought I should meet a good friend of his, a woman named Margaret Marshall, and kindly arranged a meeting. Margie, as she's called, was a white South African who, while in college in the 1960s, had led a powerful antiapartheid movement called the National Union of South African Students. She had bravely used her position to amplify the voices of antiapartheid South Africans at a time when doing so was considered a radical and dangerous act. As a result, after coming to the United States for graduate studies, she decided not to return to South Africa, fearful that her political activism might lead to persecution at home.

Marshall had attended Yale Law School, then spent some time in private practice, eventually at the Boston firm of Choate Hall & Stewart, the position she held when we had lunch. As she was advising me about my career, I was impressed and inspired not only by her activism but by how she managed to combine that commitment with her private practice. A few years later, Margie Marshall was appointed an associate justice of the Massachusetts Supreme Judicial Court, only the second woman ever appointed to that position. Then, in 1999, she became the first woman to be appointed chief justice. And that is where she was serving when Mary Bonauto brought the
Goodridge
case.

In November 2003, the court voted 4–3 in favor of the
Goodridge
plaintiffs, making Massachusetts the first state to legalize marriage equality. Chief Justice Marshall wrote the majority opinion, and when I read it, tears came to my eyes. Even though I knew that she had stood up for the rights of minorities throughout her life, I was still amazed at the courage Chief Justice Marshall showed in that opinion. She took on every trope of the antigay right, dismantling their arguments with each stroke of her pen:

[T]he plaintiffs seek only to be married, not to undermine the institution of civil marriage. They do not want marriage abolished. They do not attack the binary nature of marriage, the consanguinity provisions, or any of the other gate-keeping provisions of the marriage licensing law. Recognizing the right of an individual to marry a person of the same sex will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race.

Chief Justice Marshall did not mince words about the reasons behind denying gay people the right to marriage, referring at one point to the “destructive stereotype that same-sex relationships are inherently unstable and inferior to opposite-sex relationships and are not worthy of respect.” She wrote later in the opinion, “The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason,” explaining that it “suggests that the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.” And, just as Justice Scalia had predicted, she also quoted from the Supreme Court's recent decision in
Lawrence
.

The
Goodridge
decision panicked a lot of political conservatives, including President George W. Bush. In his State of the Union address, delivered two months after the decision, he criticized “activist judges,” who were “redefining marriage by court order, without regard for the will of the people and their elected representatives.” President Bush then went a step further, implying that he might want there to be a constitutional amendment to stop gay people from marrying: “If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process. Our nation must defend the sanctity of marriage.”

Conservatives in the chamber jumped to their feet, applauding wildly. One person who was not clapping, however, was Gavin Newsom. The recently elected thirty-six-year-old mayor of San Francisco, Newsom was at the State of the Union address as the guest of California Representative Nancy Pelosi, and as he listened to the president, he was getting annoyed. If gay people wanted to get married, why not let them get married? In fact, he thought, why not let them get married
now
? So, a few weeks after President Bush's address, Mayor Newsom ordered the San Francisco County Clerk to start issuing marriage licenses to same-sex couples, who then proceeded to descend in droves upon San Francisco's enormous Beaux-Arts City Hall building, the same place where the brave and groundbreaking gay rights hero Harvey Milk had been shot to death a quarter century earlier. Four thousand couples received marriage licenses before the California Supreme Court put the judicial kibosh on Mayor Newsom's experiment a month later.

When I heard what Gavin Newsom was doing, I thought it was incredible. In fact, I thought,
That's so California! No one here in New York would ever do something like that
. Perhaps that is true of New York City officials. But two weeks after Mayor Newsom's announcement, the twenty-six-year-old mayor of the Village of New Paltz announced that he, too, would allow gay couples to marry. Mayor Jason West performed twenty-five ceremonies before being arrested and charged with multiple misdemeanors of “solemnizing marriages without a license.” Mayor West's efforts were also shut down by a court order, but after years of slowly ramping up, the fight for gay marriage was now truly on.

A few weeks after officials shut down the New Paltz weddings, I received a call from an American Civil Liberties Union attorney named Matt Coles. Matt told me that the ACLU was planning to bring a lawsuit on behalf of couples who had signed up to get married in New Paltz but had not succeeded in doing so before the shutdown. He wanted to know if I would take on the case pro bono, not because I had any kind of reputation as a gay rights activist, but for far more pragmatic reasons. For one thing, Matt knew that bringing in a lawyer from Paul, Weiss, a firm known for its litigation prowess, meant gaining the resources of a big law firm, which would be a tremendous help to a nonprofit like the ACLU. But there was another reason as well.

Matt also knew that I had clerked for Chief Judge Kaye and that, as a result, I knew most of the other judges on the Court of Appeals at that time and was familiar with the way that the Court of Appeals operates. Being able to make a personal connection was crucial in a case like this, because marriage equality was still a foreign concept to most people. Matt felt that having a familiar person, who happened to be gay, standing up and making the argument to the judges might help to shift the equation in our favor.

The personal is political, as the saying goes. And that became abundantly true in my own life over the next two years as I prepared, filed, and argued the case for marriage equality in New York.

THE FIRST TIME
I asked Rachel if she wanted to get married, she responded with “Don't be ridiculous.”

We had been domestic partners for a couple of years at that point, and although I had never been the type to fantasize about walking down the aisle in a frilly white dress, I was surprised that I had recently begun to think about actually getting married. Rachel and I still could not marry anywhere in the United States because Massachusetts, the only state that permitted marriage for same-sex couples, then offered that right only to Massachusetts state residents. But we could get married in Canada, and in the first months of 2004, hundreds of gay American couples, including some friends of ours, made the trek north to do just that.

Yet even though we could finally get legally married, we still had conflicted feelings about it. For one thing, it was not entirely clear at first that the state of New York would recognize Canadian marriages between gay couples. But it was absolutely clear that the U.S. federal government would not, because of DOMA. At the time, Rachel thought,
What's the point?
As she explained:

We would not have had the same rights as straight married couples so it did not feel like an act of equality—it felt like begging for acceptance as if we were trying to say we're normal. It felt like an act of conformity, not an act of affirmation. And I did not feel like doing that. I wanted to have equal rights as a married lesbian couple. Getting married at that point felt like a pretense because it had no real substance. We wouldn't get any additional rights, and no New York official would recognize our marriage as socially, legally, or even emotionally equivalent to the marriages of straight people.

I understood how Rachel felt. I too was frustrated by the lack of real recognition and rights for gay Americans. But at the same time, I found myself increasingly wanting to get married, and to get married to Rachel. On top of that was the fact that we had started talking about having a child. Both of us had known from the very beginning of our relationship that we wanted children, and with both of us edging toward forty, it was time to get moving if we were truly serious.

For a lesbian couple, having a baby is not a simple endeavor. Pretty much every available avenue—from using a sperm donor (anonymous or otherwise) to adopting—involves multiple steps and lots of legal documents, so we knew it might be a while before any baby showed up. As we started making plans for our long-term future as a family, I asked Rachel again, “So, would you like to get married?” Once again, she said no. But she was not calling the idea ridiculous anymore, because something surprising had happened as our gay friends started getting married.

Rachel had been to a lot of straight weddings in her life, and even when she loved the bride and groom, she hated the weddings themselves, because they made her feel excluded. Once we started going to the weddings of our lesbian and gay friends, however, that changed. These weddings were full of wondrous joy. Everyone there, not just the brides or the grooms, was filled with gratitude, love, and awe. For the first time, Rachel felt not only included but actually engaged in these weddings. She began to understand that marriage was not simply a social construct or legal partnership with rights and benefits—something for a lifelong activist such as herself to fight for in Albany—but a personal promise that is shared with the community.

Rachel also came to realize that there had been another, deeper reason behind her disdain for marriage, that there was also an element of self-hatred involved. For years, the idea of getting married had embarrassed her. It was not only that it felt like scrabbling for second-class status; on some level, it also felt unseemly and almost cartoonish. She had carried inside her the assumption that she did not deserve the right to marry. But now, witnessing these other profoundly happy celebrations, something shifted. She began to see how the power of marriage was more than merely symbolic or legal—marriage meant something very fundamental about your commitment to another person, your integration of all of your family relationships, and most of all your very sense of self.

When Rachel realized that getting married was a legitimate—even healthy—thing to do, she decided that it was time. One morning in the spring of 2005, she looked at me and said, “We're having a child together. Let's get married. I want us to publicly celebrate our commitment to each other. We don't have many rights, but whatever rights we do have, I want us to have them together as parents.” That was good enough for me. A few weeks later, as if on cue, Rachel became pregnant.

Suddenly, Rachel and I were transformed from domestic partners to engaged parents-to-be. We had a wedding to plan, baby books to read, and a nursery to design. I was ecstatic. Actually, we had two weddings to plan: one small, legal ceremony in Toronto, to be followed by a large Jewish wedding at Rachel's parents' home in Rhode Island.