Dawning Hope: The
Supreme Court
and the Case of
Lewis v. Harris
By John Shelby Spong,
ctaww.org from the Web, July 28, 2006
The Supreme Court of the State of New
Jersey will sometime in the next few months hand down its ruling in the case of
Lewis v. Harris. The final arguments from the attorneys for the
plaintiff and the state have already been heard. All that remains is for
the members of the Court to engage in their own deliberations, to vote and to
announce their decision.
This case was filed more than three years ago by seven gay and lesbian couples
of New Jersey, who have been living in faithful, committed and loving
partnerships that range from 13 to 34 years in duration. They are asking
in this suit for the State to recognize their relationships as marriages and to
sanction them, thus giving them the same rights and privileges enjoyed by
heterosexual couples, including equal benefits under the tax codes, full spousal
coverage in insurance programs, and equal visitation rights and authority in all
circumstances of sickness, accidents and death.
It has been my privilege to know two of these seven couples quite well. I
respect their integrity, I honor their partnerships and I yearn for the High
Court of this State to put its legal stamp of approval on their commitments to
each other. Even more, I want this Court to speak for the people of New
Jersey. It would mark one more time in our history when this State strikes
a blow for justice and inclusion in the long human struggle to make the promise
of our State Constitution to provide our citizens with equal protection under
the law a reality.
Because I feel so deeply about this matter, I have taken the unusual step of
becoming amicus curiae, filing a brief with the Court in support of the
petition of these seven couples. I wanted the members of the Supreme Court
to know that New Jersey’s retired Episcopal Bishop is ready to welcome their
positive decision. I do not believe I am alone in this.
I am encouraged about the prospects for this case. The questions asked by
the justices during final arguments seemed to me to offer sufficient reason to
anticipate a positive decision. The State of New Jersey is a place where a
consensus has already been formed in favor of extending basic human rights to
all of our citizens. This case has been in the legal process since 2002,
winding its way step by step to this last stop with the Supreme Court. The
time for a decision has come. I thus have great expectation for a positive
decision.
This decision is a deeply personal one for me. I grew up as homophobic as
anyone I know. It was healthy, whole and indeed wonderful gay and lesbian
people who by the beauty and integrity of their lives, forced me to reassess and
finally to abandon my ill-informed prejudices. On the day that I retired
as the Bishop of Newark, I had 35 openly gay and lesbian clergy serving churches
in my Diocese. Thirty-one of those clergy lived with their partners, once
again quite openly. Our Diocesan Convention supported the issues brought
to us by our homosexual members with huge majority votes. Gay and lesbian
clergy were elected by this Convention time after time to the highest offices a
Diocese can bestow upon a priest. Never once in my 24-year career as a
bishop did I have a complaint about sexual misconduct on the part of any of our
gay or lesbian clergy. I cannot make that statement about our heterosexual
clergy.
Our stance as a Diocese also brought tremendous numbers of gay and lesbian lay
people out of their closets of fear and into significant roles of leadership in
the life of the Diocese. At this moment a gay attorney is the president of
our Standing Committee, a gay university professor is the chair of the committee
to nominate candidates for the office of the tenth Bishop of Newark, who will be
elected in September and who will then become my successor twice removed.
These people were chosen for these positions for no other reason than that they
were competent and devoted Christians. I no longer believe it is possible
for any part of the institutional church to claim to be ‘the body of Christ,’ if
it is not open to all of the variations that exist in the human family.
For me that is not being liberal, it is simply being Christian! I do not
think it is coincidental that two of the seven couples in this lawsuit are part
of the Episcopal Church in the Diocese of Newark. Both of these couples
are people I admire. That is why I have chosen to stand with them in this
case.
The first is a lesbian couple; active lay people in one of the churches I was
privileged to serve as bishop. These women, who have been a couple as long
as I have known them, have children who are reaching toward the teenage years.
Their parish priest is one of our finest; an open, sensitive and courageous man,
whose church signboard states overtly, that in this house of worship all gay,
lesbian, and transgender people are welcome. That welcome is real.
The homosexual members of that church are not merely tolerated; their presence
is enthusiastically celebrated. Indeed this wonderfully diverse and open
congregation charters buses on ‘Gay Pride’ day so that its straight members can
join its gay members marching together in the ‘Pride’ parade down 5th Avenue in
New York City.
This lesbian couple has also been an inspiration to this congregation.
When their child was baptized some years ago in that Church, the entire
congregation gathered to be the welcoming community. It was quite poignant
to me that during the closing arguments before the New Jersey Supreme Court, one
of the members of this particular couple told the justices that it was her hope
that she and her partner “could get married before our children do.” I
join them in that hope.
The partners who form the other couple I know even better, for one of them was
and is a priest in our Diocese. His partner is an Episcopal priest in the
Diocese of New York. Both serve with distinction in two different
Episcopal Churches, separated only by the Hudson River. Beyond having had
this professional relationship with them, these two people are also close
personal friends both to me and to my wife. The four of us have shared
meals together on five or six occasions since my retirement, sometimes in our
home and sometimes in theirs. When I was still the active bishop this
priest was one of the most effective ordained leaders of our Diocese. He
was and still is an extraordinary clergyman, well loved by his congregation that
deeply appreciates his sensitive and enthusiastic ministry. He lives his
life quietly but quite openly and enjoys the admiration of all who know him.
He is respected in his community, writing a well-read and popular weekly column
in his local newspaper. He has served on the Board of Trustees at the
major hospital in his area, giving much of his time to that facility.
Doctors and nurses alike, as well as the administrative staff and trustees hold
him in high esteem. He is active in the civic life of his larger region
and state, including doing volunteer work on the telephones for the Public
Broadcasting System during their annual fundraising drive. He has an
infectious sense of humor and is quite often the life of the party in a variety
of social settings. His partner is a dedicated urban priest in New York
City, whose church has helped to transform his neighborhood. The Bishop of
New York is as fond of him as I am of his partner. These two priests have
found in each other a sustaining love that has made each of them more whole,
more giving and more alive.
The arguments against gay marriage are to me so strange, revealing, as they do,
deep levels of irrationality. The State of New Jersey, in the defendant
role in this case, has argued that marriage is by definition between one man and
one woman. However, there were times in American history when that was not
all it took. It was not until 1967 that the Supreme Court of the United
States ruled that all state laws prohibiting racially mixed marriage were
invalid. There were also times in history when the words one man and one
woman did not imply equality since the woman did not enjoy the same rights in
that marriage as the man. Now the State of New Jersey is actually arguing
that gay marriage will somehow compromise this historically already compromised
institution. This defense is an example of how entrenched interests always
grasp at irrational straws to buttress their dying prejudices.
The executive director of the league of American Families, John Tomicki,
opposing the petition of these couples, said before the proceedings, “We hope
the Court will resist the temptation to legislate from the bench.” That is
a tired argument and was used to try to stop the Supreme Court from both
declaring segregation illegal and supporting the rights of women to equal
treatment. “Legislating” is an interesting code word. New Jersey’s
Assistant Attorney General, Patrick De Almeida, took the same line in his
closing statement, basing his entire case on the argument that this is an issue
that should be decided not by the courts but by the legislature. Since
when, I wonder, have basic human rights been granted by the vote of the
legislature, rather than by the guarantee of the Constitution? What this
argument seems to be based on is the hope that there is sufficient homophobia
still existing in the people of this State to defeat equality for homosexual
people through a legislative process. If that is true then no person would
ever be safe from the tyranny of the majority. This pitiful argument is a
tacit admission that justice for gay and lesbian people is right but it might
not yet be sufficiently popular to be passed by a vote in the legislature.
Clearly, under our State Constitution, it is the Court’s duty to make this
decision. If inequality before the law is the plight or the reality of any
citizen of this state, then the Supreme Court must act to remove the barrier.
I believe this Court will act and when it does I will be very proud of my
adopted and now much loved state.
(Other “recent articles” by Bishop Spong can be found at
www.ctaww.org)
GayPasg Note: The
following two books by Bishop Spong have been very helpful to us with our
keeping loaner copies:
1988 -- Living in Sin? A Bishop Rethinks Human Sexuality, ISBN 0060675071
1991 -- Rescuing the Bible from Fundamentalism: A Bishop Rethinks the
Meaning of Scripture, ISBN 0060675187
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