Celebrating Obergefell — But Breaking a Glass

By Martha Ackelsberg and Judith Plaskow

Traditional Jewish wedding ceremonies end with the breaking of a glass. There are many explanations of this practice, but one is that it serves to remind participants — even in the midst of great joy — that the world is still broken, and work remains to be done. This perspective seems particularly apt as we analyze our reactions to the recent Supreme Court decision in Obergefell v. Hodges that establishes a national right to marry, regardless of the sex of one’s partner.

Our enthusiasm is muted both by the language in which it was expressed and the context in which it was announced. We are concerned that the “soaring” and poetic language of parts of the decision may obscure the distinction between the legal status conferred by civil marriage and the spiritual/religious dimensions of a relationship; and that a focus on the extraordinary changes in the country with respect to acceptance of gay marriage may mask the extensive work yet to be done to overcome discrimination against lesbian, gay, bisexual, and transgender people. Further, we are profoundly disturbed by the difference between the rapid progress in the struggle to extend certain rights to LGBT folks, as compared to the country’s extraordinarily slow movement (if not backsliding) on issues of race.

The significance of civil marriage. In our view, what was at stake in the “right to marry” were legal rights and standing. It may well be true that what swayed the Court — and many people in the country — to change its views on whether same-sex partners should be allowed to marry were stories of love, companionship, and commitment despite legal non-recognition. The primary issues at stake here, however, are — and were — legal. Many same-sex couples (including the two of us!) held rituals of commitment (whether within or outside of traditional religious institutions) in the years before civil marriage was recognized by individual states or by the federal government. And the new law will not affect religious marriage at all: individual religious institutions will continue to make and enforce their own rules and customs about whom to marry and how. But what Obergefell did change is the way those relationships are recognized in terms of legal standing: whether, if one spouse is ill, the other can visit the hospital as a spouse; whether both parents of children in a family can be legally recognized as the parents, whether in terms of responsibilities toward the children or the ability of children to inherit from them; and, of course, there are multiple implications for taxes, criminal justice, etc. — over 1000 benefits, in all, that are guaranteed to those who are recognized as legally married (regardless of the “spiritual” state of their relationships). It is equal access to those legal benefits that is, it seems to us, the fundamental reason why it was necessary and correct.

Not all marriages, of course, confer “nobility and dignity” upon the partners; not all embody “the highest ideals of love, fidelity, devotion, sacrifice and family.” Some are abusive, some are simply matters of convenience, and many are “ordinary;” yet, they are equally deserving of legal recognition. In 2004, when same-sex marriage became legal in Massachusetts, we expressed concern that a focus on gay marriage would serve to re-enforce the primacy of traditional norms of “coupledness,” to the detriment of all those who, for a variety of reasons, do not live their lives in a couple (whether of the opposite- or same-sex variety). In fact, the activism of the past decade and the inflated language of both Windsor and Obergefell that imply that marriage is the supreme life choice have, unfortunately, proven us correct. If the winning of the right to marry serves to further marginalize those who do not live in two-parent families, or do not have a long-term intimate partner, the right will have been won at a very high price.

The Struggle is Not Over. In addition, every time some rights are newly acknowledged, there will be some who say “the struggle is over.” If we have gay marriage, that means there is no longer any discrimination against gay/lesbian/transgender people; we can “move on” to other issues. But that, of course, is wrong, and deeply problematic. Housing and employment discrimination are still, alas, rampant. Gay and lesbian (and transgender) teens — especially those of color — are still at very high risk of homelessness, harassment, and suicide. The most significant danger of the Obergefell decision would be to think that there is no more work to be done. Indeed, it might leave those facing harassment and discrimination feeling even more isolated than ever.

Respect and dignity for all? But even more poignantly, we are deeply troubled by what it means to speak of “equal respect and dignity” when, over 60 years after Brown vs. Board of Education and 50 years after the passage of the Voting Rights Act, Black lives still do not matter equally in our country. Too many black people have been harassed, shot, or killed — whether by police or civilians — for nothing more than the “crime” of “living while black” — the most recent example being the massacre in Charleston. Our criminal (in)justice system incarcerates black and brown people at rates much higher than whites, and imposes much more severe sentences for the same (or lesser) crimes. As a result, too many communities of color are deprived of adult presences; and felony disenfranchisement laws mean that very high proportions of black men, even after they have been released from prison, are unable to vote and participate in the governance of their communities and the country. And all of this is aside from the overt attacks on, and efforts to undermine, the Voting Rights Act, where Republicans are working hard to severely limit the ability of people of color to participate equally in our political process.

It is hard to comprehend or to accept the difference in trajectories in these two struggles for rights. In a mere decade, or less, the country seems to have “turned around” toward greater acceptance of (at least some) gays and lesbians. But, in the same time, we have, if anything, turned in the other direction on recognition of the rights of people of color, especially of African-Americans.

So, before we drink too many bottles of champagne in celebration, let us also break a glass, and dedicate ourselves to taking the important next steps that will truly make this country inclusive of all its residents.