Main Article on Name/Gender Change

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Arkansas Democrat Gazette, July 5, 2015

Note:  This is the original article of the author, Joshua M. Silverstein.  The alternative, published version is available online here.

On June 26, the United States Supreme Court ruled that same-sex couples have the constitutional right to marry. This landmark decision was a critical legal and moral victory for gay, lesbian, bisexual, and transgender people, and for all others who support welcoming them into the fold of the American community. But the case represents more than the culmination of a long struggle for equality irrespective of sexual orientation and gender identity. It was also another dramatic step forward in the centuries-long project to fulfill the Enlightenment Dream.

The scholars and thinkers of the Enlightenment sought to identify principles of natural law that transcend our religious, social, ethnic, and racial differences in a quest to discover a universal moral code grounded in reason and our common humanity. The axiom at the zenith of their theorizing was a conception of political equality under which all persons share the same legal rights without regard to bloodline, property ownership, religion, race, ethnicity, sex, or the like. The philosophers of the Enlightenment thus wished to dismantle the caste systems then in place throughout Europe and the rest of the world and replace them with governing structures that prize liberty, equality of opportunity, and democracy, rather than status.

These values spread out from the learned academies, universities, and urban coffee houses, seeping into the cultural DNA of the 17th and 18th Centuries. As a result, Enlightenment precepts were included in many of the great political charters of the era, including the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen. To wit, the former, in striking language crafted by Thomas Jefferson, provides that "We hold these truths to be self-evident, that all men are created equal . . ."

Of course, no society of that era fully lived up to the promise of the Enlightenment vision in words or conduct. The Declaration itself refers to "all men" being created equal, leaving half the population outside the jurisdiction of its canons. And the United States Constitution established slavery as the law of the land, denying countless men and women their rightful place as citizens of the new nation. But what began in the treatises of Locke, Voltaire, Montesquieu, and Condorcet and the founding documents of England, America, and France was an enduring social journey aimed at attaining justice for all.

The path has not been easy. With every two steps forward, we take one step back. America liberated its slaves at the close of the Civil War, only to see African Americans consigned to a new type of second-class status with the failure of Reconstruction. Jews like my ancestors obtained social acceptance throughout Europe, then suffered the horrors of the Holocaust. But the last two centuries were marked by unmistakable progress in the achievement of human rights. As explained by Dr. Martin Luther King, "The arc of the moral universe is long, but it bends toward justice."

The story of blossoming equality in this country contains celebrated chapters on faith, race, and sex: the First Amendment to the United States Constitution, with its clauses establishing freedom of religion; the Nineteenth Amendment, which granted women the franchise; Brown v. Board of Education and the 1964 Civil Rights Act, which together expunged the stain of legal segregation from our republic. To these, we now add an equally momentous chapter on sexual orientation and gender identity: Obergefell v. Hodges. In that case, the Supreme Court correctly found that the equal protection and due process clauses of the Fourteenth Amendment guarantee the right of same-sex couples to full participation in marriage, the institution at the foundation of our society. With this ruling, America has made a giant leap towards realizing our self-professed commitment to the "unalienable rights [of] ... Life, Liberty, and the Pursuit of Happiness."  The judgment in Obergefell, in combination with other Supreme Court opinions, the holdings of lower courts, federal and state legislation enacted throughout the land, and a sweeping political and social movement, has succeeded in removing a badge of inferiority that was no less corrosive than the brandings and yellow stars of old.

It has been suggested by some, including the dissenters on the Supreme Court, that Obergefell amounts to a defeat for religion. This is not so. First, the political theories of the 17th and 18th Centuries were meant to transcend differences in religion, not reject the core tenets of our belief systems. The philosophers of that era owed a considerable debt to the religious scholars preceding them such as Catholic theologian Thomas Aquinas, who constructed a theory of natural law that influenced Enlightenment thinkers in innumerable ways.  The Declaration of Independence itself reflects the profoundly important place of faith in the march towards justice. It states "that all men are created equal, that they are endowed by their Creator with certain unalienable rights." And religious conceptions of human dignity have been instrumental in social crusades since the birth of America, including abolition and the civil rights movement, as well as the quest for equal treatment under the law for gay, lesbian, bisexual, and transgender persons. In short, the history from the Enlightenment forward is not one of reason replacing faith, but of these two paramount virtues working in harmony to form more perfect unions throughout the world.

Second, whatever the specific doctrines of each religion say about marriage and same-sex relationships, the core principles of those religions are consistent with the Supreme Court decision. In all of the great faiths, the obligations to love your fellow human and abide by the Golden Rule are more important than any others, except perhaps the duty to honor one's deity or deities. Secular moralities are of a piece. Can any heterosexual--Jew or Christian, Muslim or Buddhist, Hindu or atheist--honestly deny that we would demand the right to marry the soul mate of our choosing as a matter of basic fairness in a country where heterosexuals were a minority? If not, then our belief systems entail that we owe no less to our gay, lesbian, bisexual, and transgender brothers and sisters.

Four centuries after the dawn of the Age of Enlightenment, the United States of America made crucial headway toward fulfilling the promise of equality set out all those years ago. As such, this was not merely a triumph for those who wish to marry a person of the same sex. It was a victory for all who came before us and for all alive today--everyone who has suffered from wrongdoing and everyone who has fought, and even died, to eradicate injustice. And most imperative of all, we have come tantalizingly closer to achieving the Enlightenment dream for our children and our children's children.

Joshua M. Silverstein is a Professor of Law at the University of Arkansas at Little Rock William H. Bowen School of Law. The opinions in this guest column are his own.

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