A Queer Attorney On Obergefell And Orlando
I am an attorney and I am queer. But really, I’m a queer attorney. These two very distinct (and some say, immutable) parts of my identity collide, clash, intermingle and rage when it comes to the Obergefell v Hodges decision that legalized same-sex marriage throughout the entire United States only last year.
My wife, Lauren, and I were married on May 30, 2015, just a few short weeks before the Obergefell decision came down on June 26. In the months leading up to Our Special Day ™, many minute tasks were DIY’d by the two of us. Lauren — who also designed our invites, fashioned a flower crown out of bodega flowers, and rendered temporary tattoos as wedding favors (full disclosure: she’s an artist, and hey, we live in Brooklyn) — plunked down in a pair of boxer briefs to pen a short speech to be delivered after we cut the cake. The speech was intended to express our gratitude to our vendors, our families, and our friends, and to outwardly acknowledge our queerness, something that was inexorably important to the both of us when planning our wedding. She pointed her browser to SCOTUS’s website and cranked up her speakers to absorb the oral arguments presented to the court. This background music made its way into our speech (delivered almost exclusively by Lauren because I was too choked up to perform). I remember that moment, holding Lauren’s hand tightly, standing on a low stage and staring into the bright lights of this venue where Bill DeBlasio and countless other straight people had been joined in “holy matrimony,” thinking just how proud I was to be legally married (in New York state, anyway), but also very, very frightened about the imminent federal decision. But, also at that moment, I dared to hope. I dared to hope that my marriage would be validated in the open air, out of darkness and scrubbed of hundreds of years of systemic societal shame. I realized I didn’t want to feel brave anymore; I just wanted to feel normal and safe.
The Court had a once-in-a-lifetime, this-side-of-history, lead-don’t-follow opportunity to be brave itself, but it punted.
On June 26, 2015, that stubborn glimmer of hope became a tangible, solid law. Obergefell v Hodges has a weight to it that other legal writing simply does not, at least for me. When I finally got my hands on a copy of the decision, the queer part of me immediately took the wheel, and I began to sob. I latched onto Kennedy’s notion of dignity and held on tight. Emotionally, dignity is precisely what I was craving. In Kennedy’s words, Lauren and I were given permission to stop being brave. We were released from the constant struggle, the backhanded accusations that we were always drawing attention to ourselves, always trying to make a point, always swimming upstream. I admit I gave the decision a cursory read, bluntly announced to my boss that I was taking a “half day ‘cuz I’m gay” and lit out to meet my wife to celebrate freedom, justice and the end of our bravery. I rejoiced in the notion that we could, as a married couple, drive across the whole of the U.S. and still be married in every single, solitary state. Ally, thy name is Kennedy.
The dark cloud came a day later, rising with a thudding post-celebration headache and a much closer read of the decision. As remarkable, historic, progressive and breathtaking as Obergefell is, it is roundly criticized as a meandering decision based on fuzzy reasoning and foregone conclusions that does not support its assertion that marriage between two persons, rather than between a man and a woman, is a fundamental right under the Due Process clause.
Nor does it give any clarity to the level of scrutiny courts should use when considering homosexuals as a group under the Equal Protection clause of the Fourteenth Amendment to the Constitution. Now, I am clearly not a constitutional law scholar; in fact, my entire law practice consists of drafting and negotiating contracts for the independent film industry. But I am a trained and licensed attorney, and Type-A through and through, and I can recognize a missed target when I see it. Obergefell was an opportunity for the Court to declare, without a shadow of a doubt, that homos like me are a class of persons that have historically been persecuted, discriminated against, and underrepresented, and therefore need and deserve to have any laws that purport to single us out be held to “strict scrutiny,” the highest and most difficult level of examination of a law to withstand.
I won’t get into the legal tests here but suffice to say, the Court had a once-in-a-lifetime, this-side-of-history, lead-don’t-follow opportunity to be brave itself, but it punted. This is confusing to me, as a queer attorney. I can’t turn off the legal reasoning part of my brain, that little itch that says this doesn’t quite follow; this piece doesn’t fit. I celebrated and then I commenced to further hand-wringing, then I put it out of my mind and continued to celebrate, taking the decision for the huge step forward that it was. In fact, with all of this hullaballoo, I summarily ignored the fact that reality television “star” Donald J. Trump had declared his candidacy for President just ten days before Obergefell was decided. I went back to basking in the glow of #progress.
An interlude: The hateful right-wing juggernaut Justice Antonin Scalia died. It really felt like we were on a roll, making headway, breaking down barriers and unifying our citizens under a common idea of respect. Our first year of marriage was blissful, despite the plummeting level of political discourse, naked racism and unprecedented lack of truth swirling around in the current race for Ruler of the Free World.
And then, Orlando.
The brutal, heartless, intentional and grisly massacre of 49 members of my LGBTQ community and wounding of 43 more wrenched me back to what can only be described as reality (starring Donald J. Trump!). What the hell had I been thinking? How dare I hope; how dare I believe; who did I think I was? These were the thoughts running through my head as hour after hour ticked by with further reports of the worst mass shooting in the history of our country. How could this be? How could this happen? What happened to dignity?
We have to be brave. And so we will.
I, like most LGBTQ people I know, no longer feel safe. Obergefell gives us some rights, that is true. But Obergefell isn’t going to protect us when we’re up against ingrained hatred that is supported by, well, guns. My initial feeling of victory after reading Obergefell seems rather pedestrian, sophomoric, cute, even. If I sound jaded, it’s probably because I am. I’m exhausted and I don’t want to be brave anymore. Yet, the mere act of going to a club intended exclusively and specifically for LGBTQ people is now an act of bravery that I frankly thought we, as a culture, had surpassed.
But, true to my LGBTQ brothers and sisters and everyone in between and out and around before me, we won’t let hate win. We’ve got to reach down and grab those bootstraps — yep, they’re right where we left them. We are one of the strongest, most resilient groups in the history of classifying people into groups, and we will persevere. So, this Sunday, on the anniversary of Obergefell v Hodges, I will be where I am every last Sunday in June: at the Gay Pride Parade being motherfucking out and goddamn proud because, really, it’s the only way. This year, I'm not going to celebrate, though. I'm going to be brave: to represent the strength and visibility that is desperately needed in these distressing times in our LGBTQ history, when news outlets are erasing the queerness from the Orlando tragedy. We have to be brave. And so we will.