“The arc of the moral universe is long, but it bends toward justice.” That is what the Rev. Martin Luther King, Jr., memorably wrote. When it comes to marriage equality, that arc is bending more and more steeply, more and more rapidly, toward its goal.
This spring, I had the honor of assisting the CCAR in its decision to participate as a plaintiff in General Synod of the United Church of Christ v. Cooper. This lawsuit challenges two related provisions in North Carolina law. One prohibits same sex marriage. The other makes it a crime to officiate at a prohibited marriage ceremony. We contend that, read together, these two laws have the effect of threatening rabbis who participate in religious only ceremonies of kiddushin for same sex couples. We also claim that the United States Constitution outlaws the prohibition on same sex marriage in general.
Last week came the news that the Fourth Circuit Court of Appeals had affirmed the decision of the District Court for the Eastern District of Virginia in Bostic v. Rainey. This case challenged Virginia’s ban on same sex marriage, and first the district court and now the court of appeals have ruled that this ban is unconstitutional.
To explain why this is important in the North Carolina case, I need to say a few words about how the federal court system is organized. At the bottom are the district courts, which hold trials and make initial decisions. One step above them are the twelve circuit courts of appeal, which hear appeals from the district courts. Above the circuit courts of appeal is only the Supreme Court.
North Carolina is in the Fourth Circuit, the same circuit as Virginia. Any rules of law that come out in the Virginia litigation would also normally apply in cases from North Carolina. The decision in the Virginia case thus spells very bad news for the ban on same sex marriage in North Carolina. Indeed, North Carolina Attorney General Roy Cooper, the “Cooper” who is the named defendant in our case, announced yesterday that he no longer believes that he can defend the North Carolina ban in court.
More generally, I am amazed by how quickly and how steadily federal and other courts are dispatching bans on same sex marriage on broad constitutional grounds. Thirteen short months ago, in United States v. Windsor, the Supreme Court held the federal Defense of Marriage Act to be unconstitutional. Since that time, federal district courts in sixteen states, two federal circuit courts of appeal, and three state courts have held that bans on same sex marriage are unconstitutional. Not one case has gone the other way. I cannot think of another example where the law has moved with this much momentum to affirm a civil right.
The struggle is not over. Our case in North Carolina remains active, and there will almost certainly be an appeal of the Fourth Circuit decision. But that arc is bending hard toward justice. I am proud to be a member of an organization that is helping to bend it there.
Rabbi Thomas Alpert serves Temple Etz Chaim in Franklin, MA. He was ordained from the New York campus of the Hebrew Union College – Jewish Institute of Religion in 2000 after a previous career as a lawyer.