It Is So Ordered

27 June 2015
Moncontour, Poitou-Charentes, France

There aren’t many mornings where I wake up crying. This morning was one of them. On a momentous day, a 5:4 majority of the US Supreme Court gave its decision in Obergefell v Hodges, declaring that the right for same-sex couples to marry is protected by the Constitution, and that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State. The judgment was deliciously timed to coincide with the start of Gay Pride celebrations in the United States and around the world, providing the champagne fizz for one hell of a party.

Here in rural France, where I’m on a writing retreat, we celebrated rather less lavishly – a pork roast dinner in the garden, seared Southern barbecue style by Aaron (though sadly not dressed in his Scarlett O’Hara outfit), followed by a late-night screening of the film of The Remains of the Day, projected onto a bedsheet hung up in the dining room. As we nodded into our half-empty glasses, trying to stay awake during all that exquisite English repression, it was a relief to consider how far we’ve come as a species in our acknowledgement of sexuality and the importance of loving, openly-expressed relationships as part of a healthy and happy life.

I spent most of yesterday afternoon reading Justice Kennedy’s majority judgment, assented to by the three female judges – Justices Ginsberg, Sotomayor and Kagan – and Justice Breyer. It is an extraordinary judgment, filled with passion and sweeping rhetoric. It is our generation’s Brown v Board of Education or Roe v Wade: a moment in which the Supreme Court identifies and advances social change, and in doing so shifts the direction of American constitutional law for a generation. There’s a self-consciousness to the writing, a straining to formulate quotable statements about law and morality, that reflects the significance of the case for American society. Kennedy’s final paragraph is already set for monumentalising as one of the great speeches of our time:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be- come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

What’s most moving about Kennedy’s judgment is how passionately he engages with the fundamental rights of LGBT people to experience liberty and equality. It is fearless, galvanising stuff, that never loses focus of the moral purpose behind the decision, even in places where some of the legal analysis feels thinly sketched. In his dissenting judgment, Chief Justice Roberts takes careful aim at the weaker points of Kennedy’s case. Though the majority decision was, in my view, the only possible conclusion that the court could reach, I wish that Kennedy and Co could have applied themselves to the technical aspects of their argument with the same vigour and precision as Roberts.

It was a particular joy to share the news with Aaron and Wayne, my friends who run the writing retreat I’m elegantly slumming in this week. Wayne is from Texas, and they both lived and worked in the States for many years before settling in France, a country with a much better public record on liberty for gay and lesbian citizens. Male homosexuality was decriminalised here in 1791 during the French Revolution, and a form of civil partnership was made available to same-sex couples in 1999. Full marriage rights were passed in 2013, just a few months before my home country, New Zealand, did the same. We’re all fortunate enough to be able to choose where in the world we want to live – a privilege not available to most LGBT people. With yesterday’s decision, the States became the kind of country that they might want to live in again, with laws that actually reflect the “life, liberty and the pursuit of happiness” rhetoric that it’s so fond of selling.

I was asked last night by one of my fellow retreaters why I cared so much about the course of gay marriage in the States. It’s a fair question: I’m not American, and my countries of birth and residence both have same-sex marriage laws, so it’s not like the law is going to affect me directly. But that underestimates the impact that American culture has on the rest of the world. Much of the iconography, pop culture traditions and language of the modern gay rights movement has its roots in American life: the Stonewall riots of the late 1960s, Armistead Maupin’s Tales of the City novels, the brief political career of Harvey Milk, the rainbow flag, the AIDS Quilt project, the outing of gay politicians – it all began in America, but resonated around the world and inspired gay rights campaigns in Britain, Canada, Australia, New Zealand, South Africa and elsewhere.

The American legal system, with its tendency to test weighty moral debates via litigation, provided plenty of highly polished statements on the extent and limits of human rights. When I started at law school in the mid 1990s, the leading American case on homosexuality was Bowers v Hardwick, a 1986 decision in which the Court upheld the constitutionality of a law in Georgia criminalising sex between men. The majority of the court held that the Constitution did not confer “a fundamental right to engage in homosexual sodomy”, and quoting approvingly from biblical and academic condemnations of homosexuality. In 1996, New Zealand had its own Obergefell case: Quilter v Attorney-General, in which three lesbian couples argued that the exclusion of same-sex couples from marriage laws was contrary to human rights legislation. The New Zealand Court of Appeal decided that the marriage laws were written expressly to limit marriage to being between a man and a woman, and that legislative reform would be needed to allow same-sex couples to marry.

And so, the long plodding battle towards legal recognition began. In New Zealand, it started with the extension of matrimonial property rights to de facto and same-sex couples, followed by the extension of equality laws to cover sexuality as a prohibited ground for discrimination. Slowly, the focus of the debate shifted from behaviour to identity: journalists and politicians were prevailed upon to say “gay” not “homosexual”, LGBT relationships and families became increasingly visible, and eventually straight activists claimed it as a human rights rather than a special rights issue.

The tipping point for gay marriage as an international campaign was, in my view, anyway, President Obama’s 2012 speech in which he stated that gay and lesbian people should be able to marry. For impassioned activists, it was perhaps too little, from a liberal administration that had notoriously dragged its feet around issues of LGBT equality. (America’s last left-wing president, Bill Clinton, had an even worse record, by signing the Defence of Marriage Act into law). But the effect of Obama’s speech, both Stateside and internationally, was immense. When the leader of the most powerful country in the world says that we need more big gay weddings, it puts the issue on the map in a way that makes it difficult to ignore.

From there, it hasn’t exactly been a sleigh ride. As Brazil, France, Uruguay and New Zealand ratified gay marriage legislation in 2013 (the UK followed in 2014), America was in more of a scramble: Obama seemed supportive but his administration lacked the voting power or the balls to enact federal legislation. Throughout the Obergefell, he has looked on vaguely as the liberal States passed gay marriage ordinances while others rushed to restrict marriage rights to male-female couples. Watching Obama’s speech given yesterday afternoon after the Supreme Court’s verdict, I was struck by how relieved he seemed that the point had been decided judicially, rather than by a longer and more difficult legislative process.

This was, of course, the main criticism of Chief Justice Roberts and the other dissenters in yesterday’s case – that the ruling has bypassed the democratic process and assigned an academic, high-falutin’ solution to a problem that should have been debated by individual states. I’ll leave the constitutional lawyers to thrash out the nuances of the Supreme Court’s decision. What seems clear, at least from polls taken by American newspapers, is that the majority of Americans support same-sex marriage. Though it’s possible the Court may have been heavy-handed in its evangelising for gay marriage, the result has reflected the will of the people. Justice Kennedy and his cohort might not have nailed every aspect of their legal argument, but their decision will stand on the right side of history.

I woke up this morning and read about an elderly gay couple, George Harris, 82, and Jack Evans, 85, who were married on Friday in Dallas County, Texas, just hours after the Supreme Court’s decision. They are almost exactly the same age as my parents – born during the Great Depression, raised during the Second World War and coming of age during the post WWII prosperity of the 50s. Like my parents, they have also been a couple for over 50 years. Like many of us, I’m fairly sure that George and Jack lived most of their lives not assuming that a day like yesterday would ever be possible. It was an incredibly moving experience to read about their union yesterday. And on and on it goes – photos and videos of jubilant street parties, couples waving marriage licences outside town halls, and the faces of people embracing each other – tear-stained, exhausted, and overwhelmed – in recognition that a long battle is over. It’s a huge symbolic victory to gay rights campaigners in other countries, and a massive encouragement for those who continue to combat homophobia in its many and pernicious forms.

Marriage is in many ways the beginning rather than the end of LGBT equality. As an inherently conservative institution, it won’t be a happy fit for many LGBT relationships. And the number of injustices that pile up against LGBT people worldwide is still overwhelming – reparative therapy, beatings, imprisonment, censorship, bullying, rising rates of HIV and STI infection, appalling statistics on drug and alcohol addiction and suicide. We are a community with many battles still to fight, with ourselves and our opponents. It’s my hope that gay marriage (or as it’s known now, “marriage”) will give LGBT peoples a legitimacy and a dignity from which we can build more inclusive communities and happier humans. Having asked for “equal dignity in the eyes of the law”, it’s now time for us to own it.

In the meantime, I am now taking bookings to attend a lot of big gay weddings, if I can stop crying long enough to figure out what to wear. Even Chief Justice Roberts was aware of the futility of stopping the Gays from partying this weekend, ending his judgment with this riposte:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

With respect to Justice Roberts, I have no plans to celebrate the Constitution – but he’s free to come and be my date at my friend Jodhi’s big gay wedding in Dallas next year, and bust some moves with me under the disco ball.

Happy Pride, everybody. What a truly wonderful day.

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