Obergefell v. Hodges the Supreme Court decision that has made "marriage equality" the law of the land is now a week old, the celebrations have ended and new breaking stories fill the front pages of newspapers and start trending on twitter feeds. The new headline is "Greece and the Euro." The decades long effort to unite the continent that had been both the fount of Western enlightenment and wars between nations and religions for millennia, is at risk. The hope that a common currency would cement this region in spite of brutal conflicts still in living memory of decision makers is in danger of destruction, with unknown consequences to stability of the world.
To write on meaningful ongoing issues one inherently takes sides. Sure, we can all condemn the slaughter of American Indians by those Europeans, often our own forebears, who occupied their land since it is dead history, with no active revanchist movement to return to the status quo ante. Yet, when issues of the moment arise, thoughtful balanced analysis seems a cop out, a useless endeavor and worse -- as one must find an audience from one side or the other and connect with their passions.
Supreme Court decisions, while couched in the rarefied idiom of constitutional and procedural law can productively be viewed from a different lens, as the values of the individual justices, whose decisions are formed by the most personal aspects of their lives, often forgotten experiences of childhood that never make it to the copious explanations of formal decisions.
This essay will explore this by comparing the recent Obergefell decision with first one on this issue by the Massachusetts Supreme Court case Goodridge v. Dept. of Public Health of 2003. While both decisions expanded same sex marriage by a split 4-3 decision, the nature of the dissent could not have been more profoundly different. Unlike Obergefell, written by conservatives who would end abortion along with the entire "progressive" agenda, the earlier Goodridge dissent was written by someone who is only a footnote in American legal history, Martha Sosman. Unlike the conservative four who excoriated the majority for mandating same sex marriage for the country, Sosman had been a board member of Planned Parenthood and used her incisive legal mind to advance causes dear to the heart of liberals in this country.
It so happens that Martha Sosman articulated views that I happen to share, then and now. Shortly after that decision I wrote an essay, one that is more meaningful after the current decision, after twelve years of the profound political disputation of the "sanctioning" of the most private of sexual relationships among people. Sanctioning is correctly the only word to describe this change in law and values, as the root conveys the power of holy authority to both exalt and to condemn any action. So the ambiguity of the word reflects the potency of the questions that had previously been decided by sacred authority of living Gods, but now by human beings deemed as "supreme" in cloistered chambers and black robes.
Addendum
There is this essay I wrote in 2005, a fantasy of an alternative history that is built around the real life story of the two women justices who had different positions on the Massachusetts case. On re-reading it after years, I understand both women, both legal and ethical views, even though they weren't expressed in the formal decisions. The long comment appending from Bill S. is from Bill Schurtman, with this biography: He
too was a scholar, meaning a love of knowledge that transcended his
successful profession as a lawyer. He graduated high in his class at
Harvard in the late 50s, a classmate being Ralph Nader, and a mentee
being Mike Dukakus, but in those days jobs in elite firms or clerk
positions with justices mostly excluded Jews. He
spent his earliest years in occupied Shanghai, with several interviews published
about his experience.
I wrote this essay just after the Obergefell decision in 2015, looking at how marriage is more than laws that both limit and provide benefits, but part of a vast mythos that can be a balm to the agony of isolation, that we all want to both preserve and give to others. Those who focus on preserving it are convinced that this expansion will destroy it, unlike those who want to share with all, no matter the genders.
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