Defending Gay Marriage at the Supreme Court

Solicitor General Donald Verrilli at the Supreme Court yesterday. "Lawrence" is the case in which the Court struck down state laws that criminalized gay sex:

May it please the Court:

The opportunity to marry is integral to human dignity. Excluding gay and lesbian couples from marriage demeans the dignity of those couples. It demeans their children, and it denies both the couples and their children the stabilizing structure that marriage affords. Now, the Respondents’ principal argument, and what we’ve been discussing this morning so far, is whether the issue of whether this discrimination should persist is something that should be left to the political process, or whether it should be something decided by the Court. And I’d like to make three points about that, if I could.

First, I think it’s important to understand that if this Court concludes that this issue should be left to the political process, what the Court will be saying is that the demeaning, second-class status that gay and lesbian couples now inhabit in States that do not provide for marriage is consistent with the equal protection of the laws. That is not a wait-and-see. That is a validation.

And second, to the extent that the thought is that this can be left to the political process because this issue will take care of itself over time, because attitudes are changing, what I respectfully submit to the Court is that although no one can see the future perfectly, of course, that it seems much more likely to me that the outcome that we’re going to end up with is something that will approximate the nation as a house divided that we had with de jure racial segregation. You may have many States, perhaps most States, in which gay couples can live with equal dignity and status, but you will have a minority of States in which gay couples will be relegated to demeaning, second-class status, and I don’t know why we would want to repeat that history.

And third, I want to expand on what Ms. Bonauto said, that the decision to leave this to the political process is going to impose enormous costs that this Court thought were costs of constitutional stature in Windsor. Thousands and thousands of people are going to live out their lives and to go their deaths without their States ever recognizing the equal dignity of their relationships.

Justice Kennedy: Well, you could have said the same thing ten years ago or so when we had Lawrence. Haven’t we learned a tremendous amount since Lawrence, just in the last ten years?

Verrilli: Yes. And, Your Honor, I actually think that’s quite a critical point that goes to the questions that Your Honor was asking earlier. I do think Lawrence was an important catalyst that has brought us to where we are today. And I think what Lawrence did was provide an assurance that gay and lesbian couples could live openly in society as free people and start families and raise families and participate fully in their communities without fear.

Two things flow from that, I think. One is that it has brought us to the point where we understand now, in a way even that we did not fully understand in Lawrence, that gay and lesbian people and gay and lesbian couples are full and equal members of the community. And what we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people, we now understand do not justify that kind of oppression.

Chief Justice Roberts: The difference, of course, is Lawrence, the whole argument is the State cannot intrude on that personal relationship. This, it seems to me, is different in that what the argument is is the State must sanction. It must approve that relationship. They’re two different questions.

Verrilli: It is different, I agree. And that leads to the second thing I think that Lawrence catalyzed for our society, was it put gay and lesbian couples, gay and lesbian people, in a position for the first time in our history to be able to lay claim to the abiding promise of the Fourteenth Amendment in a way that was just impossible when they were marginalized and ostracized.

And you’re right, Mr. Chief Justice, this is about equal participation, participation on equal terms in a State-conferred status, a State institution. This is different than Lawrence, but I do think that what Lawrence has allowed us to see is that the justifications for excluding gay and lesbian couples from equal participation in this institution don’t hold up.