Today the Supreme Court considered whether everyone has the right to get married. The Court might overrule the Defense of Marriage Act–a 1996 law aimed at limiting marriage to heterosexuals. But you have to go back further to appreciate the Court’s struggle with marriage rights.
In 1982, the police came to Michael Hardwick house and found him having sex with another man. They arrested him and charged him with the crime of sodomy. Hardwick’s lawyers appealed. They argued that the Constitution bars the Government from jailing men simply because they have sex with other men.
In 1986, the Supreme Court provided its answer, ruling that “The Constitution does not confer a…right for homosexuals [to have sex.]”
So what was the Court saying?
A Constitution devoted to liberty, happiness and privacy–a Constitution that has been fortified to protect the rights of women, of black Americans, and of criminal defendants–that Constitution stopped short for gay Americans.
So it fell to Tyron Garner to push the Court again. Texas police also arrested Garner for the crime of having sex with his partner. But his case made it to the Supreme Court in 2003.
By that time, the Court had a change of heart. Justice Kennedy said the Court had not only been wrong to rule that there was “no Constitutional right” to have sex–but that defining the issue so narrowly actually “demeans” the dignity of the struggle for gay rights “… just as it would demean a married couple [to say] marriage is simply about the right to have sexual intercourse.”
So just ten years ago, the Court finally ruled that gay Americans have a right to have sex.
But that left a problem. For the last decade, the court’s 2003 decision has left gay Americans in a legal purgatory.
Yes, they finally received the right to be gay, the right to be in relationships without criminal sanction, and the right to have sex.
But it’s about dignity. It’s about liberty. And like most fights to ensure that our Constitution lives up to its rhetoric, it’s about equality. But since that 2003 ruling, the one thing gay Americans still don’t have is the right to commitment. Step back and think about that. What kind of principle guarantees the right to lead a “gay lifestyle,” but no right to build a committed and loving life with another person? It doesn’t make sense because that’s not how rights work. In this week’s oral arguments, several Supreme Court Justices asked how they could endorse gay marriage when it is such a new concept. Justice Alito asked one lawyer how he can prove gay marriage is a good thing when it is a newer invention than cell phones. But just like the case against Michael Hardwick, that question is too narrow. Gay marriage is new, but liberty and equality are very old. And long overdue.
Ari Melber
Ari Melber, an Emmy Award-winning journalist, writer and attorney, is the host of “The Beat with Ari Melber” airing nightly at 6 p.m. ET on MSNBC. He also serves as MSNBC’s chief legal correspondent and an NBC News legal analyst. Before joining MSNBC, Melber practiced First Amendment law and served as a legislative aide in the U.S. Senate. He received a J.D. from Cornell Law School and is a member of the New York Bar. Recommended
