Amazing. In this blog, we go from a penguin-assassination to a constitutional law discourse in the click of a mouse. (The eye is too slow.) The Jillster offers up an essay today that would grace any law review in the land. From the horrifying to the sublime, in the click of a mouse. With top-nitch legal writing as a lagniappe. If this is (fair & balanced) demonstration of the breadth and depth of cyberspace, so be it.
[x The New Yorker]
To Have And To Hold
By Jill Lepore
Tag Cloud of the following piece of writing
When Louise Trubek and her husband, Dave, drove from New Haven to Washington to listen to oral arguments before the Supreme Court in Trubek v. Ullman, she was pregnant. The Trubeks had met at the University of Wisconsin, Madison, and married in 1958. The next year, while they were both students at Yale Law School, they filed a complaint against the State of Connecticut about a statute that prevented their physician, C. Lee Buxton, the chief of obstetrics and gynecology at Yale Medical School, from discussing contraception with them. They wanted to have children one day, according to the complaint, but “a pregnancy at this time would mean a disruption of Mrs. Trubek’s professional education.” By the time that Trubek v. Ullman reached the Supreme Court, in the spring of 1961, Louise Trubek had graduated from law school and was ready to start a family. The case was dismissed, without explanation.
This spring marks the fiftieth anniversary of the case that went forward instead: Griswold v. Connecticut. (“We became the footnote to the footnote,” Trubek told me.) In Griswold, decided in June, 1965, the Supreme Court ruled 7–2 that Connecticut’s ban on contraception was unconstitutional, not on the ground of a woman’s right to determine the timing and the number of her pregnancies but on the ground of a married couple’s right to privacy. “We deal with a right of privacy older than the Bill of Rights,” Justice William O. Douglas wrote in the majority opinion. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”
In the half century since Griswold, Douglas’s arguments about privacy and marriage have been the signal influence on a series of landmark Supreme Court decisions. In 1972, Eisenstadt v. Baird extended Griswold’s notion of privacy from married couples to individuals. “If the right of privacy means anything,” Justice William Brennan wrote, “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Griswold informed Roe v. Wade, in 1973, the Court finding that the “right of privacy... is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” And in Lawrence v. Texas, in 2003, Justice Anthony Kennedy, writing a 6–3 decision overturning a ban on sodomy, described Griswold as “the most pertinent beginning point” for the Court’s line of reasoning: the generative case.
A few weeks ago, the Supreme Court heard oral arguments in Obergefell v. Hodges, a consolidation of the petitions of four couples seeking relief from state same-sex-marriage bans in Kentucky, Michigan, Ohio, and Tennessee. The federal Defense of Marriage Act was struck down by the Court in 2013, in U.S. v. Windsor, a ruling in which Kennedy cited and quoted his opinion in Lawrence. But bans still stand in thirteen states. In 2004, Ohio passed a law stating that “only a union between one man and one woman may be a marriage valid in or recognized by this state.” The Ohioans James Obergefell and John Arthur had been together for nearly twenty years when Arthur was diagnosed with ALS, in 2011. In 2013, they flew to Maryland, a state without a same-sex-marriage ban, and were married on the tarmac. Arthur died three months later, at the age of forty-eight. To his widower, he was, under Ohio law, a stranger. The Court is expected to issue a ruling in June.
The coincidence of the fiftieth anniversary of the Court’s ruling in Griswold and its anticipated decision in Obergefell makes this, inescapably, an occasion for considering the past half century of legal reasoning about reproductive and gay rights. The cases that link Griswold to Obergefell are the product of political movements that have been closely allied, both philosophically and historically. That sex and marriage can be separated from reproduction is fundamental to both movements, and to their legal claims. Still, there’s a difference between the arguments of political movements and appeals to the Constitution. Good political arguments are expansive: they broaden and deepen the understanding of citizens and of legislators. Bad political arguments are as frothy as soapsuds: they get bigger and bigger, until they pop. But both good and bad constitutional arguments are more like blown-in insulation: they fill every last nook of a very cramped space, and then they harden. Over time, arguments based on a right to privacy have tended to weaken and crack; arguments based on equality have grown only stronger.
Estelle Griswold became the director of the Planned Parenthood League of Connecticut in 1953, the year that Vern Countryman, a professor at Yale Law School and a former law clerk of Justice Douglas, bought a box of condoms from a drugstore in Hamden and then went to the police and asked them to arrest the druggist for violating an 1879 statute banning the sale of contraceptives. Countryman and several of his colleagues at the law school, including Fowler Harper, were interested in challenging the ban by concocting a test case. So was Griswold, who was tired of driving around Connecticut with boxes of diaphragms in the trunk of her car. By 1957, they’d teamed up with Buxton, who agreed to identify patients who could serve as plaintiffs, and with a civil-liberties attorney named Catherine Roraback. In 1958 and 1959, Roraback filed complaints on behalf of four married couples, a set of plaintiffs that, like the petitioners in this year’s same-sex-marriage cases, were carefully selected. All but the Trubeks, whose complaint was filed separately, chose anonymity. Jane Doe had suffered a stroke near the end of a pregnancy; the child had been stillborn, and Doe had been partially paralyzed; another pregnancy might end her life. Pauline and Paul Poe had three children born with multiple congenital abnormalities; all three had died shortly after birth. Harold and Hannah Hoe had a genetic incompatibility that led their doctor to strongly recommend against having children.
Banning contraception at a time when the overwhelming majority of Americans used it was, of course, ridiculous. (Justice Potter Stewart, who dissented in Griswold, called the Connecticut statute “an uncommonly silly law.”) The law was little enforced. Condoms were openly sold in drugstores, and people of means could get other forms of contraception out of state. (Estelle Griswold once asked whether the police intended to “put a gynecological table at the Greenwich toll station” and examine every woman who crossed the state line.) The ban was a real hardship, though, for the poor, and especially for poor women in relationships with men who refused to use condoms. And if the law was ridiculous it was also intransigent. For decades, Planned Parenthood had tried to get it overturned in the Connecticut legislature, to no avail. So the question was: What legal argument could be used to challenge its constitutionality?
The Constitution never mentions sex, marriage, or reproduction. This is because the political order that the Constitution established was a fraternity of free men who, believing themselves to have been created equal, consented to be governed. Women did not and could not give their consent: they were neither free nor equal. Rule over women lay entirely outside a Lockean social contract in a relationship not of liberty and equality but of confinement and subjugation. As Mary Astell wondered, in 1706, “If all Men are born free, how is it that all Women are born Slaves?”
Essentially, the Constitution is inadequate. It speaks directly only to the sort of people who were enfranchised in 1787; the rest of us are left to make arguments by amendment and, failing that, by indirection. Historically, people who were originally left out of the Constitution or who have wanted to make constitutional arguments about things not originally in the Constitution have most often grounded their arguments in the Bill of Rights. This is a disadvantage. During the debates over the ratification of the Constitution, Federalists warned that if a bill of rights was adopted it would severely constrain constitutional argument. Bills of rights prevent kings from abusing the liberties of the people, but in the United States the people are sovereign, and in the Constitution the people grant to the government certain powers, and no others. Alexander Hamilton argued that it was therefore not only unnecessary to make a list of rights held by the people—“Why declare that things shall not be done which there is no power to do?”—but also dangerous, because once such a list was written down it would imply that those were the people’s only rights.
By the time that Roraback and Harper set about crafting arguments on behalf of their plaintiffs, the Constitution had been much amended. Roraback and Harper chose to base their argument on the Fourteenth Amendment, which lies at the heart of this year’s same-sex-marriage cases, too. The briefs submitted by the petitioners in Obergefell v. Hodges raise two questions: “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” And “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?”
The Fourteenth Amendment was first discussed by Congress in 1865; its purpose, in the aftermath of Emancipation, was to guarantee citizenship, due process of the law, and equal protection of the law for all Americans. Section 1 reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
With this gain came a loss. Section 1 prohibited discrimination by race. Section 2 mandated discrimination by sex: it guaranteed the right to vote not to all citizens but to all “male inhabitants.” When Elizabeth Cady Stanton and Susan B. Anthony, who had been fighting for universal suffrage, learned about that language, they straightaway began petitioning Congress for language that would, instead, specifically “prohibit the several States from disenfranchising any of their citizens on the ground of sex.” When that failed—the amendment was ratified in 1868—they tried to get universal suffrage incorporated into the Fifteenth Amendment; that failed, too. In 1869, Stanton and Anthony introduced into Congress a proposed Sixteenth Amendment, guaranteeing women the right to vote. And, when that failed, Anthony went to the polls and in 1872 tried to vote, insisting that the privileges-and-immunities clause of the Fourteenth Amendment had, in fact, enfranchised women. The Court rejected that claim.
The nature of those rejections proved fateful. In dismissing the claims of suffragists, opponents cited their own right to privacy. As one senator put it in 1881, the enfranchisement of women constitutes a breaking in “through a man’s household, through his fireside... to open to the intrusion of politics and politicians that sacred circle of the family.” In 1884, the House Judiciary Committee rejected the proposed Sixteenth Amendment on the ground that women inhabit and must remain confined to a secluded and private sphere: “To the husband, by natural allotment... fall the duties which protect and provide for the household, and to the wife the more quiet and secluded but no less exalted duties of mother to their children and mistress of the domicile.”
Connecticut’s 1879 anti-contraception law, a “little Comstock law”—so called because it’s a state version of the federal Comstock Act of 1873—is swathed in the same concern for female chastity, privacy, and seclusion. And so is the constitutional “right to privacy” first defined by Louis Brandeis and Samuel Warren, in a law-review essay in 1890 in which they described a violation of that right as any “intrusion upon the domestic circle.” The notion of privacy that Justice Douglas, in Griswold, said was “older than the Bill of Rights” was actually devised in the Victorian era, and is bound up with the idea that the home lies outside the sphere of politics, and that women, therefore, ought not to be allowed to vote.
It took suffragists decades of sweat and ink to counter that idea. “To get the word male... out of the Constitution cost the women of the country fifty-two years of pauseless campaign,” Carrie Chapman Catt said after the Nineteenth Amendment was ratified, more than half a century after the Fourteenth.
All amendments are not created equal. As the Yale legal scholar Reva B. Siegel argued in a brilliant Harvard Law Review article called “She the People,” the Court at first understood the Nineteenth Amendment as making a foundational change by providing grounds for countering discrimination on the basis of sex. But then that interpretation was abandoned, and the Nineteenth Amendment was left, jurisprudentially, to wither.
People who want to make arguments against laws that discriminate against women tend to reach for awkward and imperfect analogies: sex discrimination is like racial discrimination; women are to men as blacks are to whites. In the appeal that Harper submitted to the U.S. Supreme Court in Trubek v. Ullman and Poe v. Ullman, he followed Brown v. Board of Education, in which, in 1954, the Court had found that segregated schooling violated the Fourteenth Amendment’s equal-protection clause. In 1961, the Court issued no formal ruling in Trubek, but, in Poe, Justice Felix Frankfurter, writing for a 5–4 majority, ignored the hardships faced by the Poes, and more or less waved the complaint aside, since neither Buxton nor his patients had been arrested. In a dissent three times the length of the majority opinion, Justice John Marshall Harlan hinted that Harper might have been better advised to pursue a different argument. In 1944, the Court had affirmed the existence of constitutional protections for a “private realm of family life which the state cannot enter.” (Privacy, in this sense, is figured as a form of liberty, freedom from the intrusion of the state; when people talk about liberty and due process they are talking about this notion of privacy.) In his Poe dissent, Harlan wrote that the plaintiffs’ ”most substantial claim... is their right to enjoy the privacy of their marital relations.”
That suggestion did not go unheard. Five months after the decision, Estelle Griswold opened a Planned Parenthood clinic in New Haven, with Buxton as its medical director, so that they could get themselves arrested for dispensing birth control—which, in short order, they did. Privacy was the argument that the Yale Law School professor Thomas Emerson stressed in his appeal of their conviction. (Harper died just before the case reached the Supreme Court; Emerson took his place.) Griswold, unlike Trubek and Poe, involved no married couples and certainly no claims like Louise Trubek’s equal-rights interest in contraception as a means of gaining an education. It did, however, involve an argument about privacy. “The Constitution nowhere refers to a right of privacy in express terms,” Emerson argued in his brief. “But various provisions of the Constitution embody separate aspects of it.” During oral arguments in March, 1965, the Justices asked Emerson what part of the Fourteenth Amendment his argument relied on:
JUSTICE HUGO L. BLACK: You’re abandoning your idea of any argument under equal protection as such?
MR. EMERSON: We have never made any argument on equal protection as such, Your Honor.
BLACK: You pitch it wholly on due process, with the broad idea that we can look to see how reasonable or unreasonable the decision of the people of Connecticut has been in connection with this statute.
EMERSON: We pitch it on due process in the basic sense, yes, that it is arbitrary and unreasonable, and in the special sense that it constitutes a deprivation of right against invasion of privacy.
In the opinion issued by the Court in June, Douglas, citing Harlan’s dissent in Poe, insisted that although a “right to privacy” is not mentioned either in the Constitution or in the Bill of Rights, it is nevertheless there, not in words but in the shadow cast by words. He wrote, mystically, that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” No one mentioned the Nineteenth Amendment, or the idea of equal rights for men and women.
“There is nothing in the United States Constitution concerning birth, contraception, or abortion,” Jay Floyd told the Court in Roe v. Wade, when the case was first argued, in 1971. Floyd spoke on behalf of the Dallas County prosecutor, Henry Wade, defending Texas’s anti-abortion statutes. When Sarah Weddington, representing Jane Roe, a Texas woman who sought an abortion, was asked by Justice Stewart where in the Constitution she placed her argument against the Texas statutes, she said, in so many words: Anywhere it would stick.
MS. WEDDINGTON: Certainly, under the Griswold decision, it appears that the members of the Court in that case were obviously divided as to the specific constitutional framework of the right which they held to exist in the Griswold decision. I’m a little reluctant to aspire to a wisdom that the Court was not in agreement on. I do feel that the Ninth Amendment is an appropriate place for the freedom to rest. I think the Fourteenth Amendment is equally an appropriate place, under the rights of persons to life, liberty, and the pursuit of happiness. I think that in as far as “liberty” is meaningful, that liberty to these women would mean liberty from being forced to continue the unwanted pregnancy.
JUSTICE POTTER STEWART: You’re relying, in this branch of the argument, simply on the Due Process clause of the Fourteenth Amendment?
WEDDINGTON: We had originally brought this suit alleging both the Due Process clause, Equal Protection clause, the Ninth Amendment, and a variety of others.
STEWART: And anything else that might be applicable?
WEDDINGTON: Yes, right.
But in the Court’s decision Justice Harry Blackmun, writing for the majority, located the right to an abortion in a right to privacy, wherever in the Constitution or amendments anyone cared to find it.
Roe, of course, incited protest on the right. But by the nineteen-eighties the Court’s opinion was being criticized on the left, too, as a failure of legal reasoning and even as a betrayal of the idea of equality, especially after the Equal Rights Amendment, first introduced in Congress in 1923, and passed by Congress in 1972, fell short of passage in the states before its ratification deadline, in 1982. “A right to privacy looks like an injury got up as a gift,” the feminist legal theorist Catharine MacKinnon argued in 1983, since “privacy doctrine reaffirms and reinforces what the feminist critique of sexuality criticizes: the public/private split.” In 1984, Ruth Bader Ginsburg, then on the U.S. Court of Appeals in the District of Columbia, regretted that the Supreme Court had “treated reproductive autonomy under a substantive due process/personal autonomy headline not expressly linked to discrimination against women.” Ginsburg found the Court’s opinion in Roe wanting for a number of reasons; among them was its failure to pay any attention to discrimination against women, or to a woman’s “ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.”
In Bowers v. Hardwick, in 1986, the Court refused to overturn a ban on sodomy in Georgia, disagreeing with the assertion of Bowers’s attorney that the law was a violation of a right to privacy established by the chain of cases that began with Griswold, because “no connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated,” and therefore the case turned on an asserted “fundamental right to engage in homosexual sodomy,” which, the Court determined, did not exist. But in a stinging dissent Justice Blackmun countered that the case did indeed turn on a right to privacy, because “if that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate aspects of their lives, it must do more than assert that the choice they have made is an ‘abominable crime not fit to be named among Christians.’ ”
The year after Bowers, Harvard Law School’s Martha Minow wrote an essay called “We, the Family,” in which she argued that, despite the Court’s claim that it was relying on a long-standing tradition, the privacy doctrine it had fashioned from Griswold to Bowers was new, incoherent, and unpredictable. “The family is not mentioned in the Constitution,” Minow pointed out, adding that Douglas’s language about “a right of privacy older than the Bill of Rights” was the language of fiction.
In the nineteen-eighties and nineties, while the reproductive-rights movement struggled against efforts to overturn or roll back Roe, the gay-rights movement, fighting AIDS, grew. “Privacy” remained a watchword of the reproductive-rights movement—and abortion became more hidden, and more difficult to procure—but LGBT activists insisted on the importance and the urgency of visibility, of pride, and of coming out. The legal reasoning employed by these two movements began to split. Privacy arguments, long troubling to feminists, were especially troubling to gay-rights activists. And the divide widened when the fight to overturn anti-sodomy laws became a fight for same-sex marriage, a movement whose watchword is “equality.” In many ways, this split made sense: sexuality and reproduction may be private but, as the historian Nancy F. Cott demonstrated in the book Public Vows (2001), marriage is public. (Cott, a colleague of mine, has been an expert witness in many same-sex-marriage cases.) Still, contraception and abortion don’t lie entirely outside the state, either, as the continued agitation over public funding of health care for women has made abundantly clear.
Feminist legal scholars began trying to put the equality back into reproductive-rights cases, not least as a matter of historical analysis, pointing out that, in Griswold and Roe, amicus briefs submitted on behalf of the plaintiffs by organizations that included the ACLU and Planned Parenthood made equality arguments that the Court simply ignored, preferring to base its opinion in these cases on privacy. (The same was true in Bowers: organizations like the Lambda Legal Defense and Education Fund submitted amicus briefs arguing equal protection, but the Court talked about privacy.) The gay-rights movement learned from that dilemma.
Meanwhile, privacy doctrine left reproductive rights vulnerable. In Burwell v. Hobby Lobby, in 2014, the Supreme Court ruled that the religious liberty of a for-profit corporation, Hobby Lobby, had been infringed upon by the Affordable Care Act’s mandate that employers provide their employees with health insurance that covers contraception. (Similar religious-liberty claims have been and will continue to be made against same-sex marriage.) The Department of Health and Human Services argued against Hobby Lobby’s objections, but the Court found its argument wanting: “HHS asserts that the contraceptive mandate serves a variety of important interests, but many of these are couched in very broad terms, such as promoting ‘public health’ and ‘gender equality.’ ” Justice Ginsburg, in a sharply worded dissent, quoted the Court’s opinion in a 1992 reproductive-rights case, Planned Parenthood v. Casey: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Justices Breyer, Sotomayor, and Kagan joined in Ginsburg’s dissent, though, obviously, they failed to convince their brethren on the bench. Counterfactuals are famously foolish, not to mention futile. Still, it’s hard not to ask: If the Nineteenth Amendment had been a broadway in constitutional law, instead of a dead end, and if, beginning with, say, Trubek v. Ullman, reproductive-rights cases had proceeded from arguments for equality, rather than for privacy, would Justices Scalia, Alito, Kennedy, Thomas, and Roberts still have been able to rule in favor of Hobby Lobby?
The fork in the constitutional road that led the reproductive-rights movement to Hobby Lobby and the gay-rights movement to Obergefell came in 2003. In June of that year, in Lawrence v. Texas, the Supreme Court overruled Bowers by declaring a Texas sodomy law unconstitutional. Presented with two Fourteenth Amendment arguments, a due-process privacy argument and an equal-protection argument, Justice Kennedy, in the majority opinion, explained that the Court had decided the case on the strength of the Griswoldian privacy argument. In a concurring opinion, Justice Sandra Day O’Connor said that she based her decision on the equal-protection argument, asserting that the Texas law constituted sex discrimination: a man could not be prosecuted for engaging in a particular activity with a woman but could be prosecuted for engaging in that same activity with a man. O’Connor’s reasoning, not Kennedy’s, marked the way forward for LGBT litigation that turned, increasingly, to marriage equality.
In November, 2003, five months after the ruling in Lawrence, the Massachusetts Supreme Judicial Court issued a decision in Goodridge v. Department of Public Health. Mary Bonauto, a lawyer for GLAD, the Gay and Lesbian Advocates and Defenders, argued on behalf of seven couples that Massachusetts’ marriage-licensing law “violates the equality rights” guaranteed in the state’s constitution. Bonauto cited privacy doctrine, but she based her argument on equal protection, telling the court, “To deny individuals the right to seek personal fulfillment through marriage is, at the most basic level, a denial of the equal citizenship of gay and lesbian people.” Chief Justice Margaret Marshall agreed. In a ruling that established Massachusetts as the first state to guarantee same-sex marriage as a constitutional right, Marshall, following Bonauto, discussed the private nature of intimate family relationships but stressed their civil and public role in communities:
Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community’s most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law.
Marshall also cited Loving v. Virginia, the 1967 Supreme Court case that struck down a ban on interracial marriage, drawing an analogy between racial discrimination (if a black person can marry a black person but cannot marry a white person, that is discrimination by race) and sex discrimination (if a man can marry a woman but cannot marry a man, that is discrimination by sex).
The marriage bans passed in Kentucky, Michigan, Ohio, and Tennessee, whose constitutionality the U.S. Supreme Court is considering this spring, were passed in reaction to Marshall’s decision. The best predictor of how the Court might think about Obergefell is Justice Kennedy’s majority opinion in Windsor, in which he found that the Defense of Marriage Act violated “the Constitution’s guarantee of equality”—specifically, the equal-protection clauses of the Fifth and the Fourteenth Amendments. He did not utter the word “privacy.”
In April, Mary Bonauto made the case for the petitioners in Obergefell. The Fourteenth Amendment’s equal-protection clause provides “enduring guarantees” against discrimination, she said. The Justices ignored her constitutional arguments and wandered around in ancient history. Justice Kennedy talked about life thousands and thousands of years ago. He mentioned the Kalahari, anthropology, “ancient peoples.” Bonauto talked about the Constitution. Justice Alito invoked Plato. Bonauto talked about American history. “When our nation did form into this union in 1787 and then when it affirmed the Fourteenth Amendment in 1868,” she told the Court, “that’s when we made—our nation collectively made—a commitment to individual liberty and equality.”
“You’re not seeking to join the institution,” Chief Justice John Roberts told her. “You’re seeking to change what the institution is.” Justice Ginsburg interjected that marriage was hardly changeless. “You wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago,” she said, pointing out the indebtedness of the gay-rights and marriage-equality movement to the movements for reproductive and women’s rights. “There was a change in the institution of marriage, to make it egalitarian. When it wasn’t egalitarian, same-sex unions wouldn’t fit into what marriage was.” Bonauto had a kind of refrain: “Times can blind.” Justice Alito said that marriage had been defined as being between a man and a woman for centuries; Bonauto said, “Times can blind.”
In the second half of oral arguments Donald B. Verrilli, Jr., the solicitor general, tackled the question of interstate recognition of same-sex marriages. Privacy didn’t come up. Gay men and lesbians “deserve the equal protection of the laws, and they deserve it now,” Verrilli said. A protester shouted, “Homosexuality is an abomination!” As the police escorted the protester out of the courtroom, the cry “Burn in hell!” could be heard from the hall.
The baby that Louise Trubek was carrying the day she sat in the Supreme Court to listen to oral arguments in Trubek v. Ullman was born in September, 1961. Her name is Jessica. The Trubeks had two more daughters. Louise Trubek stayed home to take care of them when they were young. In 1970, she went back to work, as a public-interest lawyer. “One of the first cases I was involved in had to do with equal rights,” she told me. “Myself, I never was that interested in the privacy argument.”
There is a lesson in the past fifty years of litigation. When the fight for equal rights for women narrowed to a fight for reproductive rights, defended on the ground of privacy, it weakened. But when the fight for gay rights became a fight for same-sex marriage, asserted on the ground of equality, it got stronger and stronger.
Jessica Trubek is fifty-three and lives in Brooklyn with her wife, Margie Rubins, and their young daughter. “I didn’t think that we were going to be able to get married in our lifetime,” Trubek told me. They met in 1998, when they were both working at Long Island University. Trubek, who has a Ph.D., used to teach social studies, but she’s now a social worker, attending to low-income families in East New York. Right after Vermont began allowing civil unions, Trubek and Rubins had a ceremony there, but after Massachusetts began allowing same-sex marriage, and some of their friends got married in Provincetown, they decided to wait for federal recognition, even though they were under some pressure at home. “Our daughter wanted us to get married,” Trubek says. The Court issued its ruling in Windsor, striking down the Defense of Marriage Act, in June, 2013; Trubek and Rubins married that September. Their daughter was ten. They had a Jewish wedding in Prospect Park, in front of a tree they’d had planted there when their daughter was born.
It was a beautiful day. All the family was there. Louise and Dave Trubek read one of the seven blessings. Trubek and Rubins’s daughter sang “Lean on Me,” a song about love, and solace. I’ll be your friend, that little girl sang. I’ll help you carry on. Ω
[Jill Lepore is the David Woods Kemper '41 Professor of American History at Harvard University as well as the chair of the History and Literature Program. She also is a staff writer at The New Yorker. Her latest books are The Story of America: Essays on Origins (2012) and Book of Ages: The Life and Opinions of Jane Franklin (2013). Lepore earned her B.A. in English from Tufts University, an M.A. in American Culture from the University of Michigan, and a Ph.D. in American Studies from Yale University.]
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