Private: Longtime Constitutional Advocate Provides Moving Argument for Marriage Equality

by Jeremy Leaming

In a powerful, personal piece for USA Today, the Constitutional Accountability Center’s Judith Schaeffer explains why it’s far past time for the demise of the so-called Defense of Marriage Act.

Schaeffer, vice president of CAC and a longtime attorney handling constitutional matters, and her partner Eileen Ryan had hoped to get married in 2004 after then-San Francisco Mayor Gavin Newsom ordered city officials to issue marriage licenses to same-sex couples. Schaeffer and Ryan planned a trip to San Francisco to wed, after nearly 26 years together, but the California Supreme Court moved too quickly and shut down “Mayor Newsom’s noble endeavor,” Schaeffer writes. Subsequently the couple was able to wed in Canada. Schaeffer notes the couples’ “wedding announcement joyfully expressed our ‘gratitude to the enlightened people of Canada.’”

Now before the U.S. Supreme Court are two cases that could decide whether lesbian and gay couples have a constitutional right to wed. As noted here yesterday, oral argument in the first case, Hollingsworth v. Perry, which involves a constitutional challenge to California’s ban on same-sex marriage, did not bode well for a high court opinion declaring that same-sex couples have a constitutional right to marry. (It appeared the justices were searching for a way to avoid reaching the question; and tossing the case on standing grounds may well be that avenue.)

Today, the justices are considering in U.S. v. Windsor a constitutional challenge to a provision of DOMA, which narrowly defines marriage, excluding same-sex couples.

Schaeffer notes that the discriminatory federal law denies “same-sex couples legally married under state law more than 1,000 federal rights, benefits and protections.”

But she concedes the high court may move in such a way that permits some states to continue discriminating against same-sex couples.

“On a more personal level, will Eileen and I continue to be respected as a married couple during the day when we are at work in Washington, but not after we drive home in the evening across the Potomac River into Virginia? Or will the Supreme Court do what it should – enforce the Constitution’s equal guarantee of the equal protection of the laws and ensure that gay men and lesbians enjoy marriage equality across our nation?”

Schaeffer and Ryan and scores more like them should not have to wait decades longer for state lawmakers to get over their disdain, fear or hatred of the LGBT community. Here’s hoping the Supreme Court does just what Schaeffer says it should do – honor our Constitution’s call for liberty and equal protection for all.

Constitutional Interpretation, Equality and Liberty, LGBTQ Equality, Supreme Court