Protestors make their case before yesterday's DOMA hearing at the Supreme Court.
As I sat in the press gallery off to the side of the Supreme Court yesterday morning, waiting for the justices to file in and begin hearing arguments about the constitutionality of the Defense of Marriage Act (DOMA), I had that sickly excited feeling that you get when the roller-coaster car is climbing the first hill. The day before was easier for me: I didn’t want the Court to take Perry, the Prop 8 case, to begin with. I was relieved when very quickly we all could hear that the justices had no appetite for a broad ruling. But the DOMA case—and here please let me confess that I’m terribly human—the DOMA case is about my marriage. As regular readers will know, I’m married to my wife in Massachusetts, but because DOMA bars the federal government from recognizing same-sex marriages performed in the states, I’m not married in the United States. The justices were going to discuss whether to end that split identity. This morning, it was very personal again, as it hasn’t been in a while.
I will assume that you have by now heard or read the news reports of what was discussed. The first hour’s debate was on “standing,” or whether, under the Constitution’s Article III, the various parties had a right to be in court at all. Given that Obama’s Justice Department has concluded that DOMA is unconstitutional and refused to defend the law in court, could Edie Windsor, the plaintiff, bring her appeal? Does the House Bipartisan Legal Advisory Group (BLAG) have the authority to step in for the administration and defend the law in court on Congress’s behalf? If the House Republican leadership doesn't have the authority to charge into court as it has done, we have no court case—and therefore DOMA can’t be struck down. Yet, who in the various legislatures, national or state, cares enough about a minority that constitutes perhaps 3 percent of the population (on a good day) to push through a repeal, either of the federal law or the myriad state mini-DOMAs? As Justice Anthony Kennedy put it, that gives me “intellectual whiplash.”
Listening today, I felt as if I were looking at two overlapping but entirely different worlds, one torn from the future and the other from the past. In one sunny, blue-sky universe, everyone agreed that my marriage was so ordinary that there was nothing to discuss—here, have a dandelion! But on the other side, a dark and stormy night, my marriage was a harbinger of social disarray and unimaginable moral peril. I remember that world well.
Of course, no one talks about same-sex couples as morally disastrous anymore, at least not in ordinary public discourse; even our most fervent opponents speak of us as having the right to be together, just not the right to “redefine marriage.” Paul Clement, representing BLAG, explained smoothly and at length that by passing DOMA, Congress was just trying to clarify that all the marriage-related laws it had passed had referred to the conventional definition of marriage and that DOMA was not targeted at lesbians and gay men in particular. In his interpretation, uniformity, not animus, was the goal.
As it happens, I lived through that period. I remember the despair I felt about some of the hideous things that were being said about us during the 1992 Republican convention and the 1996 DOMA debates. So, clearly, did Justice Elena Kagan, who read this aloud from the House’s report on its deliberations: "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality." Those words inspired loud gasps in the courtroom. (Over at The Atlantic, Garance Franke-Ruta has more.)
There it was: The new universe alongside the old one. The reaction bemused me: Is it possible that folks don’t remember how much we were hated? Back then, Jerry Falwell offhandedly disparaged “Ellen Degenerate” when her character came out on a sitcom, and House Majority Leader Dick Armey “accidentally” referred to “Barney Fag,” rather than Barney Frank. Such slurs were issued at no cost, because so much of the country agreed. The cruelty of those debates—and so much else that was said and done at the time, the horrifying initiatives that roiled the states, the apocalyptic pronouncements about “man on dog” marriage coming next—these were ordinary. All that cruelty wounded me, as it did so many of us who lived through those years. Does this explain, in part, why my official marriage certificate strikes me as so miraculous and unexpected that I’ve framed and hung it on the wall?
By my count, five justices (including Kennedy)—or maybe six, including Samuel Alito—appear to believe that the Department of Justice is justified in staying involved with the case, which would be enough to strike down DOMA. Kennedy clearly thinks that DOMA’s Section 3, which defines marriage for federal purposes as between one man and one woman (thereby skimming off federal benefits and responsibilities from same-sex marriages like mine), constitutes federal overreach and that marriage’s definition should be left to the states. He told Clement that DOMA seems to be “in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody.” That made it sound as if he is heading our way.
I walked out of the court smiling broadly. But let’s be clear: This roller-coaster ride has a long way to go. No matter what the Court issues in its opinion come June, the question of my marriage is not going to be settled for a while. DOMA’s Section 2 will stay in place, telling the states that they needn’t recognize other states’ same-sex marriages. Which is part of why, when my family travels outside of New England, I take copies of the various legal papers that say my wife and I belong to each other. Not my marriage certificate, which would be meaningless in Texas. I take, rather, a packet of things like health-care proxies and wills. If we were to be sick or struck by a car in a foreign country like the Lone Star State, where my brother’s family lives, I have no idea whether the paramedic or medical examiner we’d encounter would be from the past or future universe. So I come prepared.
Here we return to the problem I wrote about yesterday—the problem of being in the front seat on the roller coaster of social change. There will be ups, downs, and whiplash as we go around the curves. Yet everyone knows where this ride will end. The next generation of lesbians, gay men, and bisexuals will have full marriage rights, no matter where in the country they go—because my generation, and some of the young’uns right behind us, will have shown the country that same-sex couples commit ourselves fully to one another, till death or divorce do us part, just like our siblings.
Before the morning’s arguments started, to settle my queasy stomach, I went up to the barrier between the press gallery and the courtroom to see who was in the audience. It was disorienting to see so many faces that I know, whose homes I’ve visited, whose brains I’ve picked, whose weddings I've attended, whose ideas and actions I’ve reported on, whose work I admire beyond words. There was Mary Bonauto, GLAD’s civil-rights director, the person most responsible for the strategies that have won marriage rights throughout New England and who first put DOMA on track to be heard at the Supreme Court. There was Kate Kendall, head of the National Center for Lesbian Rights; Jenny Pizer, who for years ran the marriage project at Lambda Legal Defense Fund, a dear friend; Jon Davidson, Lambda’s legal director; Suzanne Goldberg, formerly of Lambda, now a law professor; Evan Wolfson, the brilliant and indefatigable national strategist who left Lambda to found Freedom to Marry; and many more. I felt like one of the Hebrews in the Sinai, looking out on the promised land, a land where we could easily and naturally take our seats in the halls of power, where Chief Justice Roberts could talk about our political influence as if we’d been there all along.
My generation has spent 30 years now on this business of making the world safer for lesbians, bisexuals, and gay men, so that those who come after us needn’t have the hateful rhetoric from years like 1992 or 1996 tattooed inside them. We grew up as second-class citizens, objects of hatred, at times afraid for our lives. We were standing in the Supreme Court, which was seriously discussing our lives and marriages. How did we get from that universe to this one, which we are leaving for those who come next? For a few minutes, before the buzzer rang and the justices took their seats, I found it hard not to cry.