From the Supreme Court Forward
What Was & What’s Next for the Marriage Equality Movement
When Edith Windsor exited the Supreme Court after nearly two hours of arguments March 27 on the constitutionality of Section 3 of the Defense of Marriage Act, a roar erupted among the hundreds of marriage-equality supporters who had gathered outside. ”Edie! Edie!” the crowd chanted, waving rainbow flags alongside American flags.
The 83-year-old lesbian widow at the heart of one of two landmark gay marriage cases before the Supreme Court strode over to a horde of reporters and television cameras looking frail, but as confident as ever. With several pages of a prepared statement in one hand, she crumpled them up.
”Hi, I’m Edie Windsor and somebody wrote me a large speech, which I’m not going to make,” she said. ”I wanted to tell you what marriage meant to me.”
Speaking about the more than four decades she spent with her late wife, Thea Spyer, Windsor offered her unique definition of marriage. “It’s a magic word,” Windsor said. “For anybody who doesn’t understand why we want it and why we need it, it is magic.”
It was difficult to find anyone on the steps of the Supreme Court last week who didn’t use the word ”hero” to describe Edie Windsor. Windsor’s fortitude in the face of the institutional injustice inflicted against her following the death of the love of her life has captured much of the country’s attention, something Americans of any orientation, gender or generation have connected with.
Windsor has been challenging the Defense of Marriage Act since 2010, following Speyer’s death in February 2009. She is suing to recoup about $363,000, the federal estate tax she was forced to pay on her ”inheritance” from Spyer. The federal government does not tax wealth that passes to a surviving heterosexual spouse.
Living most of their lives in New York City’s Greenwich Village, Windsor and Spyer were engaged to marry in 1967. Instead of an engagement ring, Spyer gave Windsor a circle pin adorned with diamonds so as to keep their relationship a secret. Windsor wore that same pin in court March 27. The long engagement was finally sealed in May 2007 with a Canadian marriage license, as Spyer’s health began to deteriorate. Overwrought with grief following Spyer’s death, Windsor suffered a heart attack. As she recovered, however, she began to realize the injustice of her situation. Even though New York recognized the couple’s marriage, because of Section 3 of DOMA, which prohibits federal recognition of same-sex marriage, the federal government treated Windsor and Spyer as legal strangers.
”The story of Edie Windsor is an unbelievably compelling and unfair story,” said former Republican National Committee Chair Ken Mehlman, who came out in 2010 and helped organize the brief filed in the Proposition 8 case – the challenge to California’s same-sex marriage ban – signed by more than 100 GOP leaders.
And it’s the story of Windsor fighting back, winning in district court and the Second Circuit Court of Appeals, as well as winning the hearts of nearly everyone she has met. Outside the high court, Windsor had rock-star status.
”There are a lot of people there who came to see me,” Windsor told reporters apologetically before excusing herself to greet the throngs of supporters gathered at the bottom of the Supreme Court steps. ”I just want to go see them.”
Blowing kisses, Windsor spread her arms in an open embrace of the crowd as photographers captured what will undoubtedly be one of the movement’s most iconic images: the elderly lesbian widow who sued the United States government, dressed in a dark pinstripe suit with a vibrant pink scarf around her neck, looking joyous with her arms outstretched on the steps of the nation’s highest court.
A LONG TIME COMING
The arguments before the Supreme Court on March 26 and 27 in the cases regarding California’s ban on same-sex marriage and DOMA were the culmination of years of litigation. They were also a defining moment in a movement that few predicted would see same-sex marriage enter center stage.
Indeed, during many of the years following the 1969 Stonewall Riots the movement’s attention was focused elsewhere – on hate-crimes legislation, federal workplace protections (which remain stalled in Congress) and the military’s ”Don’t Ask, Don’t Tell” ban on out servicemembers. It was only a handful who looked to marriage as the issue that might provide the movement’s defining moment.
Among them was Evan Wolfson, the president and founder of Freedom to Marry. It was 30 years ago when a 26-year-old Wolfson wrote his Harvard Law thesis on same-sex marriage. Submitted in April 1983, the 140-page ”Samesex Marriage and Morality: The Human Rights Vision of the Constitution” has become the modern-day manifesto for the marriage-equality movement.
”For gay women and men, who also love, samesex marriage is a human aspiration, and a human right,” Wolfson wrote at a time when most states still had anti-sodomy laws. ”The Constitution and real morality demand its recognition. By freeing gay individuals as our constitutional morality requires, we will more fully free our ideas of love, and thus more fully free ourselves.”
As one of the early advocates for a constitutional right for same-sex couples to marry nationwide and as a key player in the 1993 Hawaii Supreme Court case challenging the state’s same-sex marriage ban, which sparked a political backlash leading to President Bill Clinton’s signing of DOMA, Wolfson bears a special connection to both cases.
”It’s extremely exciting to be at this moment and to know that the strategy of winning more states and winning more hearts and minds and having those millions of conversations has brought us to 58 percent support among the American people, up from 27 percent when I was doing the trial in Hawaii,” Wolfson told Metro Weekly on the steps of the Supreme Court after the March 26 arguments in the Proposition 8 case.
It was in August 1989 that the academic discussion of same-sex marriage hit major newsstands when the gay journalist Andrew Sullivan presented the ”conservative case for gay marriage” in the pages of The New Republic. In his cover story, ”Here Comes the Groom,” Sullivan argued against local governments’ decisions to create domestic partnerships in the wake of the AIDS epidemic and instead ”legalize old-style marriage for gays.”
”[G]ay marriage is not a radical step. It avoids the mess of domestic partnership; it is humane; it is conservative in the best sense of the word. It’s also practical,” Sullivan wrote. ”Given the fact that we already allow legal gay relationships, what possible social goal is advanced by framing the law to encourage these relationships to be unfaithful, undeveloped, and insecure?”
There were many dark years that saw defeat after defeat for the marriage-equality movement in courts and legislatures before the ”sea change” of public opinion discussed by the justices during March’s oral arguments.
DOMA’s political reality was not forgotten by some members of the high court. During questioning of Paul Clement, the lead attorney defending DOMA for the Republican-controlled House Bipartisan Legal Advisory Group (BLAG), Justice Elena Kagan took issue with the argument that Congress approved DOMA to provide uniformity to the states; and that with Hawaiian courts weighing legalizing same-sex marriage, Congress approved DOMA to ensure that no other state would be forced to honor same-sex marriages performed in other states. She questioned if ”Congress’s judgment was infected by dislike, by fear, by animus, and so forth.”
“[W]hat happened in 1996 — and I’m going to quote from the House Report here — is that ‘Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.’ Is that what happened in 1996?” Kagan asked to gasps and murmurs from the courtroom.
“Does the House Report say that? Of course, the House Report says that,” Clement responded. “And if that’s enough to invalidate the statute, then you should invalidate the statute.”
The pace at which America has embraced marriage equality has been nothing short of staggering. It’s easy to forget that it was less than a year ago President Barack Obama and much of the Democratic Party remained opposed to same-sex marriage.
“I believe that marriage is the union between a man and a woman. Now, for me as a Christian — for me — for me as a Christian, it is also a sacred union. God’s in the mix,” then-Sen. Obama said during a presidential campaign appearance at the Saddleback Presidential Forum in April 2008. Although Obama repeatedly said gay couples should be entitled to rights and benefits through civil unions, he maintained marriage is between a man and a woman.
But since Obama announced on May 9, 2012, that he believes “same-sex couples should be able to get married,” the number of other politicians who have followed has been overwhelming to even the most ardent supporters of marriage equality.
“Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well,” Obama said during his second inaugural address, also citing the Stonewall riots, as the Supreme Court justices sat feet away.
More than half the country now supports same-sex marriage. According to a Washington Post-ABC News poll released a week prior to the Supreme Court arguments, 58 percent of Americans believe same-sex couples should have the right to marry, compared to 36 percent who oppose. The numbers were a near reversal compared to a decade ago, in 2003, when 37 percent supported same-sex marriage and 55 percent opposed. Among millennials, those aged 18 to 29, 81 percent now support marriage equality.
In the weeks leading up to the Supreme Court’s historic arguments in the Proposition 8 and DOMA cases, the number of politicians — particularly moderate Democrats — who have endorsed same-sex marriage has increased at such a pace they have ceased to gain headlines.
It began when Republican Sen. Rob Portman of Ohio announced a “change of heart” earlier in March and became the first Senate Republican to support marriage equality, after learning his son is gay. A few days after, former Secretary of State Hillary Clinton announced what many had long suspected: She, too, supports marriage equality.
And then, with the Supreme Court poised to consider whether same-sex couples in all 50 states have a constitutional right to marry, the flood began.
In little more than a week, Democratic Sens. Mark Begich (Alaska), Tom Carper (Del.), Bob Casey (Pa.), Tim Kaine (Va.), Kay Hagan (N.C.), Claire McCaskill (Mo.), Jon Tester (Mont.) and Mark Warner (Va.) all announced their support for same-sex marriage, primarily through statements on social-media platforms. That leaves – as of Metro Weekly deadline – only seven Democratic senators who have not stated support for same-sex marriage: Sens. Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), Tim Johnson (S.D.), Mary Landrieu (La.), Joe Manchin (W.Va.), Bill Nelson (Fla.) and Mark Pryor (Ark.).
On April 2, Republican Sen. Mark Kirk (Ill.) announced his support for same-sex marriage, joining with Portman as the second Senate Republican to endorse marriage equality. “Our time on this Earth is limited, I know that better than most,” Kirk wrote on his blog. “Life comes down to who you love and who loves you back — government has no place in the middle.”
According to the Alaska Star, Alaska’s Republican Sen. Lisa Murkowski recently described her view on same-sex marriage much as Obama described his a year ago.
“The term ‘evolving view’ has been perhaps overused, but I think it is an appropriate term for me to use,” Murkowski said, signaling that she too may soon endorse same-sex marriage.
For those Democrats who have yet to declare their support, they are to the right of Portman, Kirk and former Vice President Dick Cheney on the issue.
The Republican Party itself has indicated a renewed attempt to be more inclusive toward those with differing views on same-sex marriage. In an interview with USA Today, Republican National Committee Chairman Reince Priebus said that while the GOP’s platform opposes same-sex marriage, the party does not “need to act like Old Testament heretics” and must “strike a balance between principle and grace and respect.”
The scramble to be on the ”right side of history” was not lost on the Supreme Court justices either. “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Chief Justice John Roberts said to Windsor’s attorney, Roberta Kaplan.
Some have welcomed these new allies to the LGBT fold, while others have criticized what they deem political opportunism. Portman, in particular, has faced criticism from some in the LGBT community for supporting same-sex marriage only after it directly impacted his family. But others, considering the Portman family’s journey on a more personal level, have pointed to the enduring words of one of the movement’s most iconic figures.
“Harvey Milk was right,” Sen. Tammy Baldwin (D-Wis.), the chamber’s only out member, told Metro Weekly. “Come out, come out wherever you are and that’s how you’re going to change the world.”
The Democratic Party’s decision to write support for marriage equality into its national party platform last summer, along with Obama’s support, has all but assured that no viable Democrat will be able to run for the party’s presidential nomination again without supporting same-sex marriage.
Indeed, the four most likely to seek the nomination in 2016 — Hillary Clinton, Joe Biden, Maryland Gov. Martin O’Malley and New York Gov. Andrew Cuomo — all support marriage equality. While less than a decade ago the most advocates could hope for were Democratic politicians to openly support civil unions, now it’s a lack of support for marriage rights that draws more – and negative – attention.
Same-sex marriage opponents have argued that this indicates the political power of the gay-rights movement and shows the court need not issue a sweeping ruling as this debate plays out in the states. Supporters, however, argue that while the influence of gay people has grown, they still face explicit discrimination in more than 30 states.
”Gay people have been targeted by ballot measures more than any other group in American history,” said Wolfson. In an exchange with Justice Sonia Sotomayor, Charles Cooper, who argued on behalf of Proposition 8 supporters, could not name any other rational basis outside of the marriage context for a state using sexual orientation as a factor to deny benefits or impose burdens.
No matter how the Supreme Court rules, it is clear that it’s no longer radical to believe gays and lesbians deserve full equality. However, while public opinion is clearly shifting at a pace few could have imagined less than a decade ago when President George W. Bush endorsed a constitutional amendment banning same-sex marriage and voters in 11 states defined marriage as between a man and a woman on Election Day in 2004, divisions remain.
Outside the hushed courtroom, on the National Mall, opponents of same-sex marriage rallied to preserve marriage as between a man and a woman.
”I’m a Republican,” said Gary Bauer, a former Reagan administration appointee and president of American Values, during a rally orchestrated by the National Organization for Marriage. ”Let me say to my party: If you bail out on this issue, I will leave the party, and I will take as many people with me as I possibly can!”
When Edie Windsor embraced the crowd of marriage-equality supporters after oral arguments in the DOMA case, it signaled the start of what will likely be more than two months of anxious waiting.
The Supreme Court is not expected to issue a ruling in either case until mid-June, before its summer recess. What the justices decide will be a tightly guarded secret until those opinions are issued. And unlike other branches of government, the Supreme Court does not leak.
Few are willing to predict how the Supreme Court will rule in the two cases. During oral arguments in the DOMA case, the apparent skepticism of a majority of the justices regarding the 1996 ban on federal recognition of same-sex marriage indicates its days may be numbered. (As Justice Ruth Bader Ginsburg put it, Section 3 of DOMA creates separate classes of marriage: “full marriage, and then this sort of skim milk marriage.”)
Few, however, felt as confident about the justices’ reactions to the broad arguments of a constitutional right to marry, put forth by Theodore Olson, the conservative half of the star legal duo leading the charge against Proposition 8.
All eyes were also on swing Justice Anthony Kennedy who, while appearing poised to argue DOMA should be struck down as an overreach of federal power, expressed skepticism to a sweeping ruling in the Proposition 8 case.
“There is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children,” said Kennedy. “There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”
Nevertheless, Kennedy said that information regarding how children are impacted by being raised in a household with two parents of the same sex is too new to be definitive. “We have five years of information to weigh against 2,000 years of history or more,” Kennedy said.
Many point to Kennedy’s 2003 majority opinion striking down a Texas anti-sodomy law in favor of two gay plaintiffs as a hint as to how he might rule.
”The petitioners are entitled to respect for their private lives,” Kennedy wrote, fueling many of the legal battles for LGBT equality that have persisted in the years since. ”The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
Justice Antonin Scalia, writing the dissenting opinion, accused the court of signing onto the ”so-called homosexual agenda” directed at ”eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Perhaps presciently, Scalia added, in part, ”If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ … what justification could there possibly be for denying the benefits of marriage to homosexual couples?”
As the long wait begins, advocates who have seen the trajectory of public opinion change dramatically in just a few short years, say this is not the time for complacency.
“This argument was obviously lively and choppy and engaged and I think rather than sitting around handwringing and speculating, what we need to do is go out and continue creating that momentum that’s going to get us there,” Wolfson said after arguments in the Proposition 8 case. “We have four states we can win if we do our work right over the next few months and others shimmering within reach and we have more people to persuade and bring on board.”
According to Wolfson, ”The strategy that has brought us to this moment of hope is the strategy that will bring us the freedom to marry nationwide, whether in June or in the round of work leading to going back before the court as soon as possible.” Wolfson promised that marriage-equality will be back if the high court gets it wrong in either of the cases. Noting the Supreme Court’s 1967 decision in Loving v. Virginia, which declared that laws restricting interracial marriage violated both the Due Process Clause and the Equal Protection Clause of the 14th Amendment and reversed previous court rulings, Wolfson said the Supreme Court got interracial marriage wrong before it got it right.
It is a sentiment echoed by nearly everyone who has seen momentum for marriage equality increase to epic levels in such a short period. The Human Rights Campaign and Freedom to Marry continue to devote financial resources and energy to the states considering same-sex marriage legislation.
”Now what we can do is wait and of course continue to have the conversation with the American public that this case has brought about a phenomenal opportunity with Ted and David and these plaintiffs to have a national conversation,” said Human Rights Campaign President Chad Griffin. ”And we’ve seen what happens when you have that national conversation.”
As the co-founder of the American Foundation for Equal Rights, Griffin spearheaded the suit against Proposition 8 in 2009 and personally recruited Olson, the former solicitor general for President George W. Bush, and David Boies. The conservative Olson and liberal Boies faced each other on opposing sides in 2000 when they argued Bush v. Gore before the Supreme Court. Olson told reporters his teaming up with Boies was “intended to make the point to America that this is not a Democratic issue or a Republican issue, conservative or liberal, this is an issue of American constitutional rights.” And as that unlikely pair symbolizes, times and minds have changed since DOMA and Proposition 8 became law.
When DOMA was approved, it had little impact as no state recognized same-sex marriages. That changed in November 2003 when the Massachusetts Supreme Judicial Court ruled there was no rational basis for the state to deny same-sex couples the right to marry. DOMA now denies same-sex couples more than 1,000 federal rights and benefits enjoyed by straight couples. President Clinton himself has called for the repeal of the discriminatory law, which bears his signature.
When California voters approved Proposition 8 in November 2008, taking away same-sex couples’ right to marry after California courts had already granted that right months earlier, it was one chapter in a long history of defeats for marriage equality at the ballot box. On Election Day four years later, voters in three states — Maryland, Maine and Washington — approved same-sex marriage. Today, nine states and D.C. permit same-sex couples to wed.
That cultural and political reality is not always apparent inside the marble hallways and behind the red-velvet curtains of the Supreme Court, but it was during these two historic cases.
Although some wondered what language might be used by some of the more conservative members of the court – including Scalia, who is well known for his off-the-cuff remarks – the discussion was respectful. At most, conservative members of the court questioned if it was best for children to be raised by two parents of the same sex.
Dustin Lance Black, the Oscar-winning screenwriter of Milk who has been involved in the fight against Proposition 8 since the start, said that tone was likely connected to a shift in the country caused by more people coming out, just as Harvey Milk urged.
“If I had to guess, I’d say everyone up there knows someone who is gay or lesbian now,” Black said of the justices. “And so they’re learning about us and they don’t want to be hurtful to people who are in their family or they work with, and so I think a lot of people are learning to be much more kind to their LGBT brothers and sisters and learning what is hurtful and not hurtful.”
In fact, among those seated in the section reserved for guests of Chief Justice John Roberts during Tuesday’s arguments was 48-year-old Jean Podrasky — a lesbian from San Francisco and Roberts’s cousin.
Speaking to reporters on the steps of the Supreme Court, Edie Windsor, who for decades lived life in the closet, expressed a sense of relief and optimism for June’s ruling.
”I didn’t feel any hostility, okay, or any sense of inferiority, you know, ‘What do these people want?”’ Windsor said of the justices’ attitudes. ”I felt we were all very respected. And I think it’s going to be good.”