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Marriage at Supreme Court

June 15, 2015

My sophomore year in college, I took constitutional law. The final project was a moot court argument of a fictional marriage equality case from Ohio. I was thrilled that I got to “be” Justice Ruth Bader Ginsburg! The class’s fictional Supreme Court held that the Ohio marriage ban violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

The momentum of the marriage equality movement has been so rapid that only five years later, my classroom hypothetical is almost identical to the question that’s currently before the real U.S. Supreme Court. On April 28, the U.S. Supreme Court heard arguments in Obergefell v. Hodges, which consolidated all Sixth Circuit marriage cases. Obergefell and his partner of twenty years, who was dying of ALS, flew to Maryland from Ohio to have their marriage legally recognized. Advocates at the Supreme Court argued not only that all states must perform same-sex marriages but that all states must recognize the marriages of same-sex partners performed in other states that currently have marriage equality. A decision on whether the Fourteenth Amendment requires a state to perform and recognize same-sex marriages is expected at the end of this month.

Rea Carey at Supreme Court, April 28 2015

National LGBTQ Task Force Executive Director Rea Carey at Supreme Court, April 28 2015

The fast-approaching decision is certainly exciting. While opponents of marriage equality, like Alabama Chief Justice Roy Moore, fear that nationwide marriage equality would “literally cause the destruction of our country,” the stories of the plaintiffs from Ohio, Michigan, Kentucky, and Tennessee are far from destructive. They are couples and families who want dignity, humanity, and equality as spouses and as parents.

But it is crucial to remember that even the broadest Supreme Court ruling on marriage is not the panacea for the struggles many LGBTQ people face. It will do nothing to address the realities that LGBTQ youth are still subjected to harmful conversion therapy practices and rejected by their families; that 40% of homeless youth are LGBTQ; that transgender people, particularly transgender women of color, are disproportionately likely to be victims of violence, including at the hands of law enforcement; that 40% percent of transgender prisoners report sexual violence while incarcerated (and that’s only the percentage who feel safe enough to report it); and, that LGBTQ people can still lose their jobs or their housing in many states simply for being themselves.

The Obergefell decision will also do nothing to address that some LGBTQ people may choose not to get married or may be harmed financially from marriage. Low-income people, regardless of sexual orientation, may lose necessary government assistance, such as food stamps, Section 8 housing, and Earned Income Tax Credits and Child Tax Credits by living together or by marrying. These systems must be reformed to allow every family to access the benefits they need. Furthermore, many members of the LGBTQ community may choose not to marry for political or personal reasons. The Supreme Court is also unlikely to address the abundance of ways LGBTQ people parent and the ways we form loving, supportive families.

Francesca Rebecca Acocella, Holley Law Fellow

Francesca Rebecca Acocella, Holley Law Fellow

I came out as gay the semester I took that constitutional law class, and reading those decisions helped me discover that the community I craved existed. I realized that these issues are not merely school assignments – they are real life issues facing members of my community and that I wanted to play a role for myself and for other members of my community who need an advocate. Embracing the diversity of our community means embracing everyone, including those who wish to marry and those who do not. Now, it’s in the Supreme Court’s hands whether everyone can have the personal autonomy to choose whether to get married. Let’s hope it will reach the same conclusion my class’s mock Supreme Court reached.

by Francesca Rebecca Acocella, Holley Law Fellow, National LGBTQ Task Force

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