Dawning Hope:
The Supreme Court and the Case of Lewis v. Harris
By John Spong

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.