Justice Sandra Day O’Connor approached performing a same-sex wedding the way she approached just about everything — all business and no fanfare yet with a confident smile and sense of humor. She married my husband, Stuart Serkin, and me on October 29, 2013, more than a year and a half before the landmark Obergefell decision which recognized the constitutional right of same-sex couples to marry.
She was under no obligation to marry us or any same-sex couple in the U.S. Supreme Court in 2013, so why did she do it? And, to the best of our knowledge, ours was the only same-sex wedding where she officiated.
As it happened, we had both served in official roles for the College of William & Mary, my alma mater. She was then our university’s Chancellor while I served as Rector (chair of the board of trustees). Even so, I felt sure she would not have agreed to marry us is if she had any reservations.
I believe her decision to take part was grounded in her understanding of the simple humanity of gays and lesbians and that we enjoyed the constitutional right to be protected from governmental discrimination. Her 2003 concurring opinion in Lawrence v. Texas recognized the right of “homosexual” Americans to participate in society, without the power of the government excluding them from benefits other Americans enjoyed. She cited the Equal Protection Clause to the 14th Amendment as the guarantor of these rights for gay and lesbian Americans.
I have no doubt that Justice O’Connor, known not only for her ability to listen and to learn, had come to know gay men and lesbians like us. She believed the exclusion of gay and lesbian Americans from basic rights condemned us to second-class citizenship that the Equal Protection Clause prohibits.
Appointed by President Ronald Reagan, a conservative’s conservative, O’Connor was the first woman appointed to the U.S. Supreme Court, after serving as Republican leader in the Arizona State Senate. At that time, she was the only member of the Supreme Court who prior to joining the Court had been elected to office, where she developed the habits to listen and learn from the American people. Her trademark was common-sense. She sought consensus and problem-solving, rather than the embrace of extremist philosophies, perhaps one of the reasons that she and Justice Scalia were often at odds.
When I was elected Rector of William and Mary in 2011, I went to her office to pay my respects and to discuss affairs of the university, where she was beloved on campus. That afternoon, her flat, unadorned words recounted how much she enjoyed her visits to Williamsburg. She had even donned a slicker and gone oystering out on the Chesapeake Bay with the students from the marine science school. On other occasions law students had been surprised to find the retired Supreme Court justice casually hanging out in the student lounge, accessible and interested in their studies.
Our conversation that afternoon rambled over the landscape of higher education, interjected with her repeated admonition to protect the rigor of the traditional liberal arts curriculum. “Give them a good well-rounded exposure to a little of everything” she stated, perhaps drawing on how Stanford had provided her that exposure to the world that she had been denied growing up on the “Lazy B” ranch in rural Arizona.
When our discussion drew to a close, it was time for me to say what was foremost on my mind. I did not know the retired Justice very well at that point and hesitated to raise my personal life at the end of what was a professional discussion. But I realized I had to do it, as my life and the lives of millions would have not been the same had she not taken a stand.
“On a personal matter, I want to thank you for Lawrence v. Texas and for making my partner of 34 years and me no longer felons in our own country.” There. Despite my apprehension about speaking so candidly about myself, when the purpose of the meeting was completely unrelated, I had verbalized my much-rehearsed words of appreciation. And, in the process, I had come out to Sandra Day O’Connor.
The retired Associate Justice of the Supreme Court looked away for a second. Then a smile of acknowledgement wordlessly emerged across that famous Western face. The bluest of blue eyes penetrated me for a second. Her elbows resting on the chair arms, she wove her fingers together and looked to the side. From reading about her life, I knew she had felt the sting of being an outsider as a student at Stanford, having grown up in the isolation of the Arizona desert. And I knew that she had been both conservative and a champion of women in Arizona. There was both a fearlessness and an inscrutability about her that made me a little uncomfortable.
But there was no mistaking the half-smile and nodded response that told me that she likewise was pleased that the 2003 Lawrence v. Texas decision had finally freed millions of Americans in same-sex relationships from the lingering fear of arrest, law enforcement intimidation, or even imprisonment.
Two years later, Stuart and I went to the Supreme Court to be married by Justice O’Connor. History hung in the air that day. She would affirm our basic right to marry. Our decades old relationship would no longer be ambiguous, existing outside of the law.
I thought back to when she told me of her reverence for Chief Justice John Marshall, a William & Mary alumnus, whose portrait, seemingly radiated through the marble walls of the court. His gift of judicial review forged the court and its ability to protect the constitution. Without Marshall’s embrace of judicial review and the Lawrence v. Texas decision, Stuart and I and millions of other same-sex couples could have been prosecuted as felons in a number of states.
The 83-year-old former Republican Arizona legislator, now using a cane, appointed by President Reagan 32 years earlier, was making history again, one of many times she had done so in her long career.
After saying hello, Justice O’Connor needled me “You know you’re a few minutes late.” Then, looking down, at the black sneaker I wore on my left foot, slow to heal from a break of the fifth metatarsal, she asked me, “Is that a proper shoe for getting married?” As I looked at the black sneaker on my left foot and the polished black wingtip on my right, I explained the broken foot.
She used her standard wedding vows, which had been slightly altered to accommodate the marriage of two men. She pronounced us married and beamed, her blue eyes reflecting the excitement of the moment. She signed the marriage license, and we were lawfully married.
In the following days, the media focused on a Republican-appointed Justice performing a same-sex wedding in the Supreme Court. Most of the coverage was straightforward but some of it was not. “Sandra Day O’Connor Bringing God’s Judgment by Officiating Wedding for Gay Couple” was the headline in one conservative publication. Even if she bothered to read the critical pieces, which she probably avoided, she would have been unfazed. After all, for many years she had embraced controversy with the same fearlessness, directness, and common-sense that made her one of the nation’s most respected jurists. She touched many lives and we were privileged to count ourselves among them.
Jeff Trammell is a former presidential campaign advisor and former Rector of William & Mary.
Views expressed in The Advocate’s opinion articles are those of the writers and do not necessarily represent the views of The Advocate or our parent company, equalpride.
