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As co-counsel for the Kentucky plaintiffs (and, before them, the Oklahoma plaintiffs) in the marriage equality litigation, I helped draft over one hundred pages of briefs in the Supreme Court arguing for the right of lesbians and gay men to marry on the same terms as everyone else. Upon receiving today’s decision, however, I find myself somewhat at a loss for words. Perhaps this is because – at least right now – I’m more interested in taking in what the Court’s opinion means than in quibbling over what it says. The decision means that gay people can fully share in the dignity, protections, and fulfillment of marriage, and it means that our country is a better place.

Or perhaps I have so little to say because the outcome seems so clearly correct. For all of the accusations in the dissenting opinions about the lawlessness of the five-Justice majority, today’s ruling is actually a legal one in the truest sense. There is no more basic tenet of American law than similarly situated people must be treated equally – and all the more so when things of fundamental importance are at stake. That is why blacks cannot be forced to go to separate schools from whites. That is why women cannot be paid less than men for the same work. And that is why gay people – similarly situated to straight people in all relevant respects with respect to the institution of marriage – cannot be excluded from that institution. To argue to the contrary is not simply to reject the notion of a living Constitution. It is to deny that new information and understandings can inform the Constitution’s timeless guarantee of equality.

One other word about the legal roots of today’s decision. The law is nothing without lawyers to develop it and to enforce it. In the Kentucky and Oklahoma cases, the students in Stanford’s Supreme Court Litigation Clinic and I had the incredible privilege to work with teams of lawyers who made this day happen. There were movement lawyers who conceptualized litigation strategies decades ago, and then executed them over many, many years. There were courageous local lawyers who brought and managed these recent cases. And there were countless others – from the conference-room brainstorming sessions to the trenches – who played vital roles in educating the public and the judiciary as to why equality is essential here. It is a proud day for the profession and a powerful reminder of the good one can do with a law degree.

1 Response to Equality and the Rule of Law
  1. I just wish the remarkable jurist, Judge Heyburn whose original judgments were vindicated by the Supreme Court had lived to see the decision handed down.

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