Gay Marriage, SCOTUS, Supreme Court

After Obergefell: A Conversation About The Supreme Court's Ruling

What lies ahead in the LGBT community's battle for legal equality?

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Two years ago, at a panel discussion about the U.S. Supreme Court’s rulings in United States v. Windsor and Hollingsworth v. Perry, Freedom to Marry founder Evan Wolfson predicted that the Court would someday tackle the issue it dodged in Perry: namely, whether there is a federal constitutional right to same-sex marriage. He didn’t predict when SCOTUS would reach the question, but expressed the hope that it would be “within years, not decades.”

How about two years? Two short years after Windsor, which unleashed a torrent of lower-court rulings supporting the freedom to marry, the Court ruled in favor of nationwide marriage equality in Obergefell v. Hodges.

So on Monday night, two years after that Windsor/Perry panel, I found myself back at the gorgeous offices of Proskauer for another panel hosted by LeGaL and Proskauer’s LGBT Affinity Group to discuss the Supreme Court’s latest landmark ruling on LGBT rights. The panel featured the following impressive participants:

  • Evan Wolfson, Founder and President of Freedom to Marry;
  • Tobias Barrington Wolff, Professor of Law at the University of Pennsylvania Law School;
  • Dahlia Lithwick, Senior Editor and Supreme Court correspondent for Slate; and
  • Matthew Skinner (moderator), Executive Director of LeGaL – The LGBT Bar Association of Greater New York.

Skinner began the discussion by asking the panelists to describe where and when they were when Obergefell came down. Wolfson was in the offices of Freedom to Mary, refreshing SCOTUSblog like the rest of us and monitoring multiple devices for news. After reading enough of the opinion to realize they had won, he and his colleagues had a quick champagne toast, then went to their “battle stations” to respond to the ruling. Wolfson retreated to his private office to read the decisions in detail in preparation for media appearances. As he read through Justice Kennedy’s opinion, he couldn’t stop crying; different passages reminded him of the years of struggle, arguments over strategy with colleagues, and prior cases lost and won on the way to this moment.

Wolff, who was in Palm Springs when the news came down, described his principal reaction as relief. He had spent the past few months resisting what he viewed as the reckless confidence of so many people around him. It wasn’t clear to him that the LGBT community would get a clear victory — so when it did, he felt a weight lifted.

Lithwick was, of course, in the courtroom at One First Street — so she, ironically enough, learned the bottom line later than everyone else. Without any electronic devices, she couldn’t simply pull up SCOTUSblog and then the Court’s opinion like the rest of us; she had to wait for it to be announced from the bench by Justice Kennedy. The timing caught her somewhat by surprise; she had appeared on television the night before and predicted Obergefell would come down on Monday, June 29. When it came down that Friday, June 26, she had a minor freakout — in the middle of composing a letter to her sons at summer camp, she started repeatedly writing, “Holy s**t, holy s**t, holy s**t!” (She talks a bit more about how she felt in the courtroom that morning in this episode of Slate’s Amicus podcast.)

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Discussion then turned to the substance of Justice Kennedy’s opinion. According to Wolff, “If you eliminate the poetry, it’s very doctrinal. It’s an examination of the Court’s prior cases about the fundamental right to marry.” And the lyrical passages in the opinion are in the service of the principle of equal dignity.

Skinner presented the panelists with some commentary from academics about Justice Kennedy’s opinion. Professor Andrew Koppelman in Salon complained that “[a]ll of Kennedy’s worst traits — the ponderous self-importance, the leaps of logic, the worship of state power — were on display. For a decision this important, the Court should have been able to do better.” Professor Akhil Reed Amar offered a kinder assessment in Slate, but still would have written a very different opinion.

Wolfson was having none of it. “Academics sometimes completely miss the point,” he said. “This is what heightened scrutiny looks like — due process and equal protection theories working together. Why don’t professors teach what the Court is doing, not what they think it should do or what they learned in law school forty years ago?”

Lithwick defended Justice Kennedy’s rhetorical flourishes, noting that he was writing both for the ages and also for the newspapers. Some of the more flowery passages that made uptight lawyers uncomfortable were exactly the lines that ordinary citizens wound up tweeting or that media outlets ended up citing.

Wolff offered harsh criticism for the four dissents (see also Richard Posner’s reverse benchslap). According to Wolff, the dissenters failed to grapple with the impact that excluding gays and lesbians from marriage has upon these individuals and their families. He opined that Chief Justice John Roberts’s dissent was “the most appalling” of the four. Responding to the Chief Justice’s rhetorical “who do we think we are?” question, Wolff said, “I think you’re the Chief Justice of the United States” — and your job is to address the important and legitimate constitutional questions presented in Obergefell. Wolff refused to even discuss Justice Scalia’s dissent, dismissing it as “not a legal document, but a political document.”

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In the wake of Obergefell, what comes next for the gay community? Wolfson cited the need to pass a federal civil rights law prohibiting discrimination on the grounds of sexual orientation and gender identity. Wolff said that the LGBT community needs to resist efforts to undermine marriage equality through religions exemptions. He discussed the Elane Photography case, which he litigated, in which the New Mexico Supreme Court ruled that Elane Photography’s refusal to photograph a 2006 commitment ceremony based on the photographer’s religious beliefs violated the state’s Human Rights Act. The Obergefell opinions don’t say much about how to reconcile marriage equality and religious belief, but in the years ahead, we will see many more cases raising this issue.

Despite the past and future clashes between, for example, marriage equality and religious belief, the movement for marriage and national discussion around the subject have been impressively civil. As Evan Wolfson noted, “This has been a nonviolent, patient, tenacious movement, supported by straights as well as gays.” So as we celebrate the result in Obergefell, we should also celebrate the process that brought the decision into being.

After Obergefell: A Conversation About the Supreme Court’s Ruling [LGBT Bar Association of Greater New York]

Earlier: The Supreme Court Rules In Favor Of Marriage Equality Nationwide
Why The Same-Sex Marriage Decision Will Likely Come Out On June 26
After Perry & Windsor: A Conversation About The Supreme Court’s Rulings

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