When a judge refers to being gay as “lifestyle choices,” you know there’s going to be a problem.
That’s how U.S. District Court Judge Martin Feldman, appointed to the bench in 1983 by President Reagan, teed up his ruling on Wednesday upholding Louisiana’s denial of the freedom to marry to gay couples.
Fortunately, Judge Feldman’s legal opinion is an outlier, the only one out of 26 in federal courts in the last year that didn’t find marriage discrimination unconstitutional.
The very next day, another Reagan appointee, Judge Richard Posner, in a unanimous ruling for the 7th Circuit federal appellate court, struck down comparable marriage bans in Wisconsin and Indiana. In an authoritative, hard-hitting opinion Judge Posner eviscerated the justification Judge Feldman had latched onto, writing, “The only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously.” Judge Posner’s dismantling of the specious arguments for the denial of the freedom to marry was so pointed, so effective, so direct—so readable!—that I wonder if any other state will dare trot them out again.
Other Republican-appointed judges—by Reagan and both Bushes—are among those who have ruled similarly. The judicial consensus in favor of the freedom to marry is unambiguous, bipartisan, and unprecedented.
And that judicial consensus mirrors the consensus we have grown in the hearts and minds of the American people. A supermajority of Americans now support the freedom to marry, including majorities from every region and a majority of young evangelicals and Republicans under 45.
And yet, even though it took a candid judge just one day to demolish the arguments embraced in Louisiana by Judge Feldman’s opinion, that loss in Louisiana underscored that marriage discrimination is still harming families every day in most states in the country, that until the Supreme Court acts couples remain at the mercy of different laws and different judges—deprived of the constitutional protections they deserve—and that our work is not yet done.
Two of the Louisiana plaintiffs, Derek Penton and Jon Robicheaux, have lived there all their lives, surrounded by large, supportive families. "Louisiana is our home," Penton has said. "And when you can’t get married in your state, it makes you feel unwelcome in your home. We have to jump through hoops to do things that should be simple—filing taxes, being respected as a family. All of those hoops tell us one thing, again and again: You are excluded."
Some say not to worry—that the Supreme Court is bound to take up one of the cases pending before it, whether in one year or a few. But delay hurts, deprivation is unfair, and waiting (and waiting) matters.
Just last week, Arizonan Fred McQuire lost his life partner of 45 years—and husband of less than one—to pancreatic cancer. But because Arizona continues to discriminate, he wasn’t allowed even to submit the paperwork for his deceased husband’s VA burial benefits, nor would the state issue him a death certificate for his husband, let alone let him be identified on it as the spouse. Instead, the state insists on listing each of them as “never married.” As a result, McQuire—even as he grieves his profound loss—was forced to file a lawsuit to fight for what the Constitution says he deserves, the dignity and legal respect of marriage.
Every day that goes by while discrimination persists means children throughout the country whose families are denied protections and treated as second-class, and parents and grandparents who don’t live to see the chance to dance at their child’s wedding.
The patchwork of discrimination and disrespect in too many parts of our country is irrational, confusing, unsustainable, and worst of all, plain wrong. Every American deserves the same freedom and dignity to marry the person they love, and they deserve to have their marriage respected no matter where they live.
Corporate America gets it. Yesterday, 30 companies, including General Electric, Pfizer, Oracle, Nike, Alcoa, Staples, Target and Amazon, argued in a friend-of-the-court brief that the Supreme Court should bring national resolution immediately. They explained that the current, piecemeal landscape is unfair to their employees and adds additional bureaucratic burdens that inhibit their ability to conduct business and attract and retain the best and brightest employees.
In my forthcoming book, Winning Marriage: The Inside Story of How Same-Sex Couples Took on the Politicians and Pundits—and Won, I look back at how advocates have won the freedom to marry in America over the past decade. Any who are concerned that there will be backlash from a nationwide ruling can rest easy. In state after state, from Massachusetts and New York to Utah and Arkansas (where marriage was allowed for a short period of time before courts stayed the pro-marriage rulings), it’s always been the same—great joy and happiness for same-sex couples and their families and friends and acceptance among everyone else, even among those who may not fully be supportive.
Only the Supreme Court can bring end this discrimination nationwide, do right by all families throughout America, and get our country on the right side of history. When the Court begins its term at the end of the month, it should agree to take one of the three cases already before it, and swiftly end marriage discrimination once and for all. America is ready, and it is time to move forward together, with liberty and justice for all.
Marc Solomon is national campaign director for Freedom to Marry and author of the forthcoming book, Winning Marriage: The Inside Story of How Same-Sex Couples Took on the Politicians and Pundits --and Won.