Gay Rights, There and Back Again

AP Photo/Marcio Jose Sanchez

Demonstrators chant during a rally against Proposition 8 outside City Hall in San Francisco, March 4, 2009. The Supreme Court is slated to hear oral arguments about the constitutionality of the ban this week.

Tomorrow, I’m going to the Supreme Court to hear a bunch of lawyers debate the status of my marriage. Do I have a right to be married? Am I married just in Massachusetts, or in the United States at large? Simply attending the arguments feels like a high point in my career: I’ve written about and followed LGBT issues, and marriage in particular, for most of my adult life. I still remember sitting at my cousin’s wedding in 1993 when someone told me about the trial-court win in Baehr v. Lewin, the Hawaii marriage lawsuit that kicked off the past twenty years of marriage organizing. Before that, marriage hadn’t occurred to me—or many of us, back in the day—as something I could have. By 2003, I knew that we would win it, and in my lifetime.

This will be the second time I hear the nation’s highest court consider the rights of lesbian and gay people. The first came a decade ago in Lawrence v. Texas, when the Court reconsidered whether Texas and 13 other states could criminalize sodomy. 

Let me fill in some of the backstory. Back in 1986, when dinosaurs roamed the earth, the Supreme Court in Bowers v. Hardwick upheld the anti-sodomy laws that made me a presumed felon in 24 American states. Gay men were sickening and dying of a disease that our president wouldn’t even name out loud; when they died, too often their widowers were barred from their beloved’s funerals, lost any claim to their shared property, or were in danger of becoming homeless if a lease or mortgage had been in the other man’s name. A very large proportion of this country believed that AIDS was an appropriate punishment for being gay. When haters beat up faggots or threw them over bridges just for fun, no one but the lesbian and gay press paid attention. Yet even given all that, lesbians, gay men, and bisexuals (the transgendered weren’t yet named as such) were shocked when, in Bowers, the Supreme Court declared that the police in Georgia had a right to walk into Michael Hardwick’s bedroom and arrest him for having sex with another man.

By 2003, when the Supreme Court was preparing to reconsider that decision, few non-gay people were paying attention. I, like many of my fellow LGBT folks, on the other hand, was delirious—levitating, really—about the rematch. My then-editor here at the print version of the Prospect, Bob Kuttner, let me write an in-depth explainer about why Lawrence v. Texas would be so important. Still more brilliantly, my online editor here, Richard Just (who until recently was editor at The New Republic), got me credentials to sit in the press gallery during the argument so I could come right back and bang out coverage for the web.

Attending the Supreme Court is a little like having an audience with the Wizard of Oz. The red velvet curtains, the justices up on a stage, the august black robes, the enormous pillars lining the hall—it’s all designed to induce awe, respect, and a sense that the wizards are far above the fray. But here’s the part that I already know is not going to be the same tomorrow: Except for the permanent actors—the justices, the administrators, the standing Supreme Court press, and of course the litigators—just about everyone at the oral arguments in Lawrence was gay. The benches were overwhelmingly filled with lesbian and gay members of the Supreme Court bar. It was the same way in the press room: Except for folks like New York Times journalist Linda Greenhouse and NPR’s reporter Nina Totenburg, for whom the Court was a steady assignment, all of us with one-day press passes were gay. Three of us were women: me, Deb Price of the Detroit News, and longtime advocate and broadcaster Ann Northrop. The other two dozen were gay men, a hunch I confirmed as I talked to those around me. Many of them weren’t even usually assigned to legal issues. I talked with one business reporter who had begged his editor to give him the Lawrence assignment, coming out in the process. 

In the antechamber, we relinquished all our wordly goods except for notepads and pencils; the Wizard permits no phones, recording devices, laptops, or pens inside. We grinned at each other as we queued up to follow the clerk on high heels who led us down the marble hall to two long rows of folding chairs that were behind the enormous pillars that stood between us and the courtroom. Off to the side, we couldn’t see anything but those pillars. If your folding chair was in the right spot, you could see through the backs of the perma-press, but most of us couldn’t. Who cared? We were there.

It was a decade ago now, but I can still recall scribbling desperately with my pencil as, over the loudspeaker, the disembodied voices of the liberal justices asked questions of the stumbling Harris County District Attorney. The pencil-heel lady ran up and down the row between us, whispering the name of whatever justice was speaking since we couldn’t see. As the liberal justices asked droll questions that ridiculed the Texas DA’s position, conservative Justice Antonin Scalia tossed him softballs. The poor man was either shockingly ill-prepared or actively sabotaging his argument because he opposed the law—and so Scalia would then swoop in with suggested answers. 

Everyone there knew, from the tenor of the arguments, that Bowers would be going down. The U.S. was the last developed nation in the world with laws against same-sex intimacy; all our peer nations had accepted the idea that such laws were a violation of human rights. By the end of June, American lesbians, bisexuals, and gay men would become citizens instead of presumed felons. Justice Anthony Kennedy wrote the decision in the sweeping language he’d used in Romer v. Colorado, the first Supreme Court decision that handed lesbians and gay men a legal victory at the top. Scalia wrote one of his brilliant poison-pen dissents, insisting if there was anything a state legislature could do, it was to define right and wrong—and warning that if same-sex couples could have sex, next thing you know, we’d want marriage—and on what grounds could states say no? Of course he was right. But few then guessed how quickly acceptance of gays and lesbians would accelerate.

This week, as I sit in on Perry v. Brown and then Windsor v. United States—the two related marriage cases the Court is consideringI know with absolute certainty that my fellow observers won’t all be gay. You all—by which I mean, non-gay people—have begun to care about our civil rights, sometimes passionately so. I’ve spent years arguing—in print, in person, in pixels—that LGBT issues were not distractions from the important issues, that we were not losing elections for the Democrats, that we are in fact human beings and that our rights detract from no one else’s. I don’t think I’ll ever get over the fact that I don’t have to make that argument any more. Sometime in the last two years—it seems as if it happened overnight—the country shifted over to my side and is angry on my behalf. No one’s telling us to keep quiet any more; now my folks are the cautious ones, saying we do not want the total victory in Perry that celebrity lawyer team Ted Olsen and David Boies are arguing for. Instead, you all keep telling me it’s just obvious that my marriage should be legally recognized not just by the commonwealth of Massachusetts but also by the U.S. “You” includes most major pundits, my president, the Justice Department, the Democratic Party, and my stepfather the retired Air Force colonel. The amount of social change I’ve lived through—and, yes, contributed to, in my small way—would have been unimaginable back when I was first horrified to realize that I wanted to kiss another girl, making me that thing that my father mocked, a “queer.” 

The downside is that this time around, I had far more competition for those few, limited press seats at the Court. In 2003, I got press credentials as soon as my editor applied for them. This round, so many people want to hear this argument that no one could tell me until this past Friday whether I would get in. In 2003, I had to explain even to progressives why ending sodomy laws was important. This time, the country is watching, proud of itself for being “on the right side of history.” According to the most recent poll, 58 percent of the country supports marriage equality. That includes significant percentages of young people in every demographic, including Southerners and evangelicals. 

As I’ve written many times before, we’re going to win. LGBT advocates and other court watchers have persuaded me not to be afraid in Perry, the lawsuit over whether or not California’s voters had a right to yank away the freedom to marry when they passed Proposition 8 in 2008. Most observers I’ve talked to believe the Court is going to take a stand on “standing.” What many of us have feared is that the Court would either declare that no state could ban same-sex couples from marrying—a ruling that would be too far ahead of public opinion—or that it would overrule the Ninth Circuit’s decision to strike down Prop. 8, reinstating that ban and forcing California’s LGBT advocates to go back to the ballot, where they’re sure they’d win this time given how much public opinion has shifted there. The standing issue would be much narrower; the Court might simply say that the proposition’s backers had no right to bring the suit, and that since California’s government refused to defend Prop 8, the ban could not stand. Everyone I’ve spoken to believes that SCOTUS will knock down DOMA section 3 in Windsor. That’s the section that says that the federal government will only recognize state-sanctioned marriages between a man and a woman. If SCOTUS knocks that out, I’m married both in my state and in my country at large. 

Of course, no one outside of Oz really knows what the wizards are thinking, which is part of what makes this week’s arguments so exciting. Last time I was eager to hear what the justices would say about whether my right to love deserved full respect and citizenship. Now I can’t wait to hear what they have to say about my marriage. I’ll tell you everything, as soon as I get back to the Prospect offices, once again with my notepad and pencil.

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