Asked and Answered

Flickr/Ted Eytan

The scene outside the Supreme Court yesterday

It’s a strange thing, living on the cusp of social change—miraculous and dizzying. Ten years ago to the day, on March 26, 2003, I sat in the tiny hallway that functions as the Supreme Court’s press gallery, off to the justices’ right, trying to hear the oral arguments in Lawrence v. Texas, the case in which the Supreme Court—years after the rest of the developed world—knocked down the country’s 13 remaining anti-sodomy laws. Yesterday morning, I sat there again to hear the justices consider the constitutionality of California’s ban on same-sex marriage, written into the state constitution by Proposition 8. I’ve spent my adult life writing about LGBT issues; back in the mid-1990s, I was the first lesbian to write broadly in favor of same-sex marriage, and in 1999 I published a book explaining how same-sex couples fit into marriage’s shifting historical definition.

I'm going to ask you—especially if you’re not gay—to imagine having spent your youth knowing that you were a social outcast, that you could be beaten up if you were spotted holding your girlfriend’s hand, that you were a presumptive criminal in half of the country for having sex with someone of the same sex. Put yourself in the shoes of a friend of mine, who was unable to find out whether his boyfriend was alive or dead after he was shot on a business trip. Imagine agonizing—knowing it could happen to you—over the fact that Karen Thompson could not bring her longtime partner Sharon Kowalski home from the nursing home in which Kowalski’s parents had parked her after a disabling car accident, a travesty widely reported only in the subcultural press. Imagine watching for the flicker of discomfort and recoil behind people’s eyes when they learned that your beloved was another woman. Then, a flash cut: You’re sitting in the nation’s marble-and-red velvet cathedral of justice as the guardians of righteousness debate your full equality. You’re flanked by scores of straight people—celebrity journalists, celebrity lawyers—who believe your marriage is one of the most exciting and important issues of the day. It feels unreal. 

On the cusp, some things are messy and unclear; some people are changing their minds, others are still hesitating; so it was in court yesterday. During the Lawrence argument, it was easy to tell exactly what each justice was going to decide. Quite the opposite this time, as you’ve surely heard or read elsewhere by now. These justices were mucking about in procedural details, unsure about whether the people defending Prop. 8 even had the right to bring the case to court, much less what the right way was to decide the various questions being presented. 

The justices face two problems. The bigger one: They’re re-hearing these cases just as the country is in the middle of changing its mind. During the 1990s and 2000s, much of the country passed similar bans on same-sex marriage, and no one brought lawsuits over them—and if they had done so, the Supreme Court wouldn't have taken them. What’s different about Prop. 8 is that it came just as the once-unthinkable—two people of one sex marrying—was becoming reality. In California, voters passed a law that Democratic officials, who happened to be in power, find offensive—or more accurately, which would be politically toxic for them to touch. So the Supreme Court is left asking: Well, if the state’s elected officials won't defend the law, then who can? What’s even more confusing is that California’s public opinion has shifted in the handful of years since the ban was enacted; those voters would probably knock it down if they could vote again today. The lawyer defending Prop. 8, Charles Cooper, couldn’t even make a full-hearted argument that same-sex marriage was an offense against society and impossible by definition, because that would have alienated too many justices (including Mr. Swing, Justice Kennedy). Rather, he had to argue that Californians could reasonably decide to put this social experiment on “pause,” waiting to see how things turned out for other states before racing headlong into the experiment themselves. 

The lawyers tell me that today is going to be similarly messy. The Obama administration’s Justice Department has refused to defend the Defense of Marriage Act (DOMA), saying that they believe it’s unconstitutional. But if the executive branch won’t take up its duty to defend its laws, who can? And—paradoxically—if no one can fairly represent that point of view in court, that means those who are on my side and think the federal government should recognize my Massachusetts marriage to my wife can’t defeat the law in court.  

The liberal justices and swing voter Anthony Kennedy weren’t happy with some of their other options. They clearly knew that this wasn’t the time for the sweeping ruling that celebrity legal team Ted Olson and David Boies’s briefs are calling for—the ruling that extends equal marriage rights by fiat to every state in the union. Neither did they like the option proposed by the Solicitor General’s Office of insisting that states with civil unions must upgrade immediately to full marriage because separate-but-equal isn’t: Wouldn't it be “ironic,” as Justice Sonia Sotomayor put it, if the few states that had “progressed,” as Ruth Bader Ginsburg said, were the ones forced to go further, while states that had no protections or recognitions for same-sex couples at all weren’t forced to move ahead. How could they “in a principled manner,” as Justice Sotomayor asked Ted Olson, the lawyer challenging the ban, write an opinion whose effects would be confined to California? As is so often the case, Justice Kennedy came down firmly on both sides of the issue, worried about leaping too quickly into the uncertain currents of social experimentation, but also worried about the injury to the children of same-sex couples, who want their parents to be married. In other words, there's no telling what they will do. 

But don’t worry; be happy. These are the kinds of messy technicalities that come up in periods of social ferment and rapid, yeasty change, when new ideas are bubbling up but aren’t yet fully baked.  All these divided questions make me think about the quote from one Supreme Court justice about divorce. For decades our country was furiously debating whether divorce that allowed remarriage was legitimate or constituted polygamy, since that meant a person would have two living spouses. During that time, several cases came up to the Court in which one partner had gone out of state to get a divorce, returned, remarried, and been jailed for bigamy. In exasperation, one justice said that if there were anything people should be able to expect from their legislature, it was rules that made it clear whether a person was married, and if so, to whom. 

Scalia appeared to find it frustrating that the question of same-sex marriage was in front of them at all: When exactly did same-sex marriage become a constitutional right, he kept asking Ted Olson. In 1791? When the 14th Amendment was passed? Sometime after the Court rejected the notion out of hand, in 1971, with Baker v. Nelson? You could hear the originalist doctrine sparring with the doctrine that rights evolve over time. Olson countered: When did it become unconstitutional to ban interracial marriage? His implied answer: When the country was ready. Toward that end, he quoted a section of Justice Ginsburg’s opinion in the landmark Virginia Military Institute case, in which SCOTUS knocked down VMI’s ban on female cadets: "A prime part of the history of our Constitution is the story of the extension of constitutional rights to people once ignored or excluded."

That’s exactly right. As we walked into the Court I was thinking about what I have believed for the past 20 years: To ask this question is to answer it. Once you can ask, in a serious manner, whether same-sex couples should be free to marry, the answer is obvious. Yes, it means changing the definition from an institution that emphasizes procreation to one that emphasizes love, but that shift has already been made. The question was inconceivable only 50 years ago; today, same-sex couples marry in nine states and ten countries, with more on the way.

Scalia is right to ask when, exactly, our marriages became a constitutional right. It became a constitutional right with the combination of Griswold v. Connecticut and Eisenstadt v. Baird, which allowed heterosexuals to snip the link between sex and babies by legalizing contraception, and Lawrence v. Texas, which Scalia rightly predicted would lead directly to same-sex marriage. It became a constitutional right when thousands upon thousands of us started coming out to our families and having weddings, thereby enlisting cousins and nephews and sisters-in-law and stepfathers and neighbors to our side. It became a constitutional right as we told our myriad stories of love and commitment, of bereaved widowhood or denied military benefits, of unfair treatment and happy families. It became a constitutional right when you all realized you had nothing to fear from me and my gal.

Comments

No, Scalia's question is the meaningless uttering of a deranged mind.

The US Supreme Court does not analyze each case a new, discarding all that has come before. It has set up standards and tests it is to apply. In analyzing what restrictions government may place on what are called fundamental rights, and marriage is one, when the restriction became unconstitutional is meaningless. It becomes unconstitutional when the Court declares it so. Up until the Court held de jury segregation of public schools by race was unconstitutional in Brown v. Board of Education, 347 U.S. 483 (1954), it was absolutely Constitutional under Plessy v. Ferguson, 163 U.S. 537 (1896).

Earlier this term, the Court heard challenges to the Voting Rights Act of 1965 ((42 U.S.C. §§ 1973 et seq.), a hallmark of civil rights legislation that Scalia spat upon with his utter contempt. He clearly wants to declare it unconstitutional. It has been reviewed by the Supreme Court three times and found Constitutional each time, most recently in 1992. So, if Justice Scalia overturns it now as Unconstitutional, ask him his question, "when did it become unconstitutional"?

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