Dear Justice Kennedy: Look not to the millennia

In the most important civil rights case of this Supreme Court term, the issue of whether the constitution requires every state to recognize same-sex marriages was argued this week.

The four liberal justices, including all three women on the Court, appear ready to hold that the equal protection clause of the constitution’s Fourteenth Amendment bans discrimination against same-sex couples nationwide. Four conservatives seem likely to vote the other way. As has happened in the last three major gay rights cases to come before the Court, Justice Anthony Kennedy looks like the swing vote, so the comments he made at the oral argument matter enormously.

Justice Kennedy appeared to be stuck on an issue the conservatives seized upon: the thousands of years of human history that did not recognize the right of two women or two men to marry.

“I don’t even know how to count the decimals when we talk about millennia,” he said. “This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we know better.’”

Oh! The millennia!

True, Justice Kennedy, state-sanctioned gay marriage has only existed since 2001 (the Netherlands was first). True, prior to that, marriage was defined everywhere as between one man and one woman.

Here’s what else is true.

Throughout much of U.S. history, gay and lesbian sex was a crime. A felony. Punished by many years in prison. At best.

For example, in 1779, Thomas Jefferson proposed a Virginia punishing men who engage in sodomy with castration. And he intended this to be a liberalization of the sodomy laws in Virginia at that time. Jefferson’s bill was rejected by the Virginia legislature, however, which continued to prescribe death as the maximum penalty for the crime of sodomy in that state. (As is still true in some countries.)

Throughout the 20th century American lesbians and gays were frequently arrested. In 1986’s Bowers v. Hardwick, two men were arrested for having consensual gay sex in the privacy of a home, with a police officer peeking in through the window. The U.S. Supreme Court upheld the law criminalizing their adult acts, because who were they to argue with millennia of locking up the gays?

Until 2003, when the Supreme Court was forced to reverse its odious decision in Bowers, consensual adult gay or lesbian sex was a crime in 14 states.

I guess at that point the millennia no longer counted for much in the face of the massive human rights violation of incarcerating people for their choice of sex partners.

Justice Kennedy, please don’t allow the court to make that mistake again. Don’t allow a long history of viciousness toward LGBT people to justify more discrimination, when you know perfectly well that respecting their dignity – the word you’ve used most often in gay rights cases, appropriately — is the right call.

The millennia have been twisted and sick to same-sex partners. LGBT folks have represented about 1 in 5 hate crime victims in the U.S. for many years, representing thousands of people who have been beaten or killed.

A tiny sample through the last few decades:

In 1973, an arsonist torched a gay bar in New Orleans, Louisiana, killing 32 people.

In 1988, Rebecca Wight and Claudia Brenner were shot by Stephen Roy Carr while hiking and camping along the Appalachian Trail, simply because they were lesbians.

In 1998, Matthew Shepard, a gay student in Laramie, Wyoming was tortured, beaten severely, tied to a fence and left for dead. He died a week later.

In 2005, Emanuel Xavier, an openly gay poet and activist, was surrounded and brutally beaten by a group of 15 to 20 teens on the streets of New York City which left him permanently deaf in his right ear.

As a result of all the violence, shaming and abuse, LGBT people have historically committed suicide at alarming rates. Alan Turing, the brilliant mathematician depicted in the film The Imitation Game, cracked the Nazi codes and helped bring down Hitler. A few years later, he was prosecuted for gay sex and sentenced in the UK to disabling “chemical castration.” He committed suicide.

Even today, suicide remains the second leading cause of death for LGBT teens, who are four times as likely to kill themselves as other young people. Each episode of harassment increases the likelihood of self-harm by a factor of 2.5.

For millennia, loving a person of the same gender has meant a life of secrecy, shame and fear.

For millennia, LGBT folks have been objects of scorn and ridicule, sent to quack doctors for “cures,” even lobotomized.

James Baldwin and Lorraine Hansberry and all the other great historical LGBT writers, activists, artists, politicians, parents and every other occupation under the sun who did not live to the 21st century never got to see the day when their state and country recognized their relationships as fully equal to those of heterosexual couples.

Today, elderly or sick LGBT Americans in places like Tennessee, which does not recognize gay marriage, await the day when the dignity of their chosen relationships will be recognized by the states they pay taxes to. They wonder if they’ll live to see it.

Justice Kennedy, you hold the power to change the course of history’s ugly treatment of our LGBT friends and neighbors. Using a history of discrimination to justify discrimination would prevent us from ever moving forward towards equality, and would justify slavery, women as property and the dehumanization of disabled people.

Don’t look back to the darkness of the millennia. Look forward, toward the light of progress. With the stroke of your pen, centuries of cruelty can now come to an end, as every decent person knows they should.

Don’t be afraid for a fourth time to write a decision recognizing the dignity of LGBT Americans. If you do, yours will be a decision for the millennia.

The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.