A Smart Lesbian Attorney and Her U.S. Supreme Court Case

John C. Rankin

(January 16, 2013)

The argument for same-sex marriage is now set for the United States Supreme Court in March, 2013. One case from the First Circuit U.S. Court of Appeals in Boston challenges the federal Defense of Marriage Act, and another challenges California Proposition 8 which upheld man and woman in marriage. Does the church have even the slightest clue on how to address these questions?

The lead attorney arguing against DOMA is Mary L. Bonauto. I met her in March, 2012, at the University of Connecticut (UConn) School of Law, spoke with her afterward, and have been in touch by email several times since.

Mary works for the Gay & Lesbian Advocates and Defenders (GLAD), and also won the Goodridge case before the Massachusetts Supreme Judicial Court (SJC) in 2003. There the Court ordered the legislature to pass a same-sex marriage law. And, by the way, at that time, Governor Mitt Romney had the constitutional authority to hold the SJC accountable for its extra-legal interference with the legislature. But he did not do so.

Mary is a patient strategic thinker, key to the same-sex marriage movement, articulate and gracious in demeanor. Her legal goal for 23 years has been the enshrinement of same-sex marriage as a fundamental constitutional right, and she has come a long way in that pursuit.

When I heard Mary speak at UConn, it was attended by a modest audience, mostly lawyers. They were on her side of the issue. And even as she spoke to a friendly group, she never once demonized or spoke disparagingly of any person who opposes her position.

Yet too, she also stated that in all her years of interacting with people who oppose same-sex marriage – or “marriage equality” as she calls it – they were people with a visceral disgust of homosexuality and its practices. In other words, she felt treated as sub-human. She did not believe their arguments had anything to do with constitutional law.

This is not how Jesus treats people. His loves draws them into the light – it does not drive them into deeper darkness. Those who wind up in the darkness do so out of their chosen resistance to Jesus, as he made clear in his conversation with Nicodemus.

In her presentation, Mary was accurate in telling the history of the legal battle over same-sex marriage. But she was also very shrewd in what she did not say. There are two major issues upon which same-sex marriage will either rise or fall when it reaches the U.S. Supreme Court. The question of unalienable rights, and that of whether or not homosexuality is a “fixed trait.” Mary did not raise the first issue. And with the second one, she made a remarkable grammatical construct that admitted it, but while deftly redefining it at the same time.

I have read the Goodridge (Massachusetts), Re: Marriage Cases (California) and Kerrigan (Connecticut) decisions in detail. These are the first three court rulings in favor of same-sex marriage that set the template for all else that has followed. In these rulings, too, the two central issues have not been honestly addressed. Nor since. How do we do so?