By Joel P. Engardio
When I saw the Supreme Court’s close-as-it-gets 5 to 4 vote granting gay and lesbian Americans the Constitutional right to marry, my first thought was “thank God for Justice Anthony Kennedy.” He was the fifth vote.
Then I thought, “If only Justice Lewis F. Powell Jr. were alive to see this.”
Nearly 30 years ago, Powell was also the fifth vote. It was 1986 and the Supreme Court ruled 5 to 4 that it was OK for states to criminalize same-sex relationships. We’re not talking about just a ban on marriage, but to make sex between gay and lesbian couples punishable by law.
Powell was 79-years old when he cast the deciding vote in Bowers v. Hardwick. He reportedly told one of his law clerks, “I don’t believe I’ve ever met a homosexual,” according to a New York Times profile. To which his gay clerk replied, “Certainly you have, but you just don’t know that they are.”
Powell retired from the court the next year. His replacement? Anthony Kennedy.
A few years before Powell died at 90, he publicly admitted his decision to criminalize gay relationships was “a mistake.”
It was Kennedy who fixed Powell’s mistake in 2003 by writing the majority opinion that overturned the 1986 decision.
It was Kennedy who would cast the fifth and deciding vote in 2013 to strike down the discriminatory Defense of Marriage Act.
And it was Kennedy’s vote this year that granted all same-sex couples the freedom to marry nationwide: “No longer may this liberty be denied,” he wrote for the majority. “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law.”
At 78, Kennedy is the same age Powell was when Powell professed to not know any gay people. What has changed is that today’s senior citizens do not have to be a so-called product of their time — too many of their children, nephews, nieces and grandchildren have come out.
Nearly 60 percent of Americans support same-sex marriage — up from a third a decade ago — because of the courage of lesbian, gay, bisexual and transgender people to tell their stories and put a face on the issue. It’s hard to discriminate against someone you know and love.
When I worked for the American Civil Liberties Union in 2004, President George W. Bush was calling for a U.S. Constitutional amendment against same-sex marriage and 11 states had marriage bans on the November ballot.
My job was to find and tell the stories of Americans who would be harmed by these bans. The hope was to win over the court of public opinion with compelling stories and move undecided people to do the right thing.
We lost every campaign. There was a clean sweep of marriage bans and I felt like a miserable failure. Yet now I realize the purpose of my work — planting the seeds that would eventually help change minds and the course of history.
The work, however, is not over. When I was married in San Francisco in February, my mom wouldn’t attend for religious reasons. My husband’s home country of Taiwan has yet to allow same-sex marriage. Too many countries continue to criminalize LGBT people. And LGBT employees still don’t have legal protections in 28 states.
President Obama said the Supreme Court’s marriage decision “made our union a little more perfect.” I like to think late Justice Powell would have agreed.
Let’s honor and emulate Powell’s ability to admit a mistake as we continue to grapple with all kinds of issues in our quest for a perfect union that includes everyone.