Inside the Supreme Court’s Gay-Marriage Debate
Lawyers for the states failed to articulate a rational, secular reason for marriage bans—and Justice Kennedy was not impressed.
This morning, I sat with Evan Wolfson—the architect of the marriage equality movement—and watched as our friend and colleague of more than a decade, Mary Bonauto, laid out a powerful case before the Supreme Court about why denying marriage to same-sex couples violates the U.S. Constitution. For me, it was the culmination of 14 years in the movement. For the country, it was history in the making.
In some ways, things had come full circle. On display today, I saw the same unique confidence and spark that inspired me to join the marriage fight—when I saw Bonauto win a 2001 lawsuit on behalf of seven brave same-sex couples in Massachusetts. As a result of that winning case, I went to work full-time as a political organizer and strategist to protect that decision, Goodridge v. Dept. of Public Health, and once it was safe, to replicate the first-in-the-nation win for marriage equality in other states.
It’s easy to look back on the movement with a sense of inevitability. But for a long while, there were many moments of anxiety. Our momentum felt like it could turn on a dime. Could we hold Massachusetts with so much opposition? Could we add even one other state? Could we win in a legislature or at the ballot box? Could we win in purple, or even red states? Even as we began prevailing, so often our victories were by the skin of our teeth, the outcome unknown until the 11th hour.
But today—both inside and outside the courtroom—things felt very different.
As Bonauto, civil rights project director at Gay & Lesbian Advocates & Defenders, stood up and addressed the justices: “Mr. Chief Justice and may it please the court,” she began. She then spoke with confidence in making the case that the freedom to marry is guaranteed by the Constitution as a fundamental right—and that the 14th Amendment’s Equal Protection clause ensures that same-sex couples can’t be denied it.
As one would expect, not long after she began, the court’s conservatives began peppering Bonauto with questions. Justice Alito asked about polygamy, and lessons from ancient Greece. Justice Scalia insisted that clergy could be forced to issue marriage licenses were they to rule in favor of equal marriage. (Of course, they wouldn’t.) But I wasn’t worried. Mary calmly answered one question after the next.
Two years ago, I stood in line at the Supreme Court to hear oral arguments on the Defense of Marriage Act and stared at the engraved words above the building’s entrance: “Equal Justice Under Law.” I wondered if that time would be our turn for those words to apply to the LGBT community and to our marriages. I breathed a sigh of relief when Justice Ginsburg spoke of the wrongness of “skim milk marriages”—or some unions with less protections—and Justice Kennedy seemed to agree. Of course, the Court did rule in favor of equal justice, striking down the Defense of Marriage Act and leaving we advocates the job of continuing to make the case before we could get to marriage nationwide.
Today, after staring at those same words again, I have confidence we will get the final answer we’ve been working toward all these years, an answer with which more than 60 judges, including many appointed by Reagan and both Bushes, agree: Marriage bans are unconstitutional.
Our opponents’ core argument in court today was that marriage bans exist for a rational, secular reason: namely, because allowing same-sex couples to marry will have a negative effect on marriage for straight people, leading to more kids born out of wedlock and all the resultant harms. But when the four more liberal justices peppered them with questions and challenges, they couldn’t back up the claim (no shocker to me!) and didn’t even pretend to have any evidence.
That contrasted with the very tangible, real harms that same-sex couples and their families face through the denial of marriage, which our attorneys brought forward again and again.
The swing vote, Justice Anthony Kennedy, asked questions of both sides, but when the states’ attorneys argued that marriage wasn’t about love, respect and dignity, Kennedy jumped in, defending the importance of dignity and the “noble purpose” of marriage. He also strongly implied that there had been a sufficient amount of time since the Supreme Court recognized the dignity of gay people in Lawrence v. Texas (which found sodomy laws unconstitutional) for the country to evolve its social mores.
Reading the SCOTUS tea leaves is not a precise science. But my optimism isn’t based only on the arguments and the justices’ responses. The hard work of our movement over the decade since we won Massachusetts—and in the two years since the DOMA ruling--gives me great confidence that we’ve gotten America ready for nationwide victory. We now have 37 states where same-sex couples can marry, and a supermajority of more than 60% support. Support has grown lightning fast in the South over the past year since Freedom to Marry set up its Southern marriage strategy to complement our national plan. GOP pollsters continue to concede that opposition is a loser for their party, with independents and young voters overwhelmingly on board with the freedom to marry. A decade ago, Democratic contenders were tying themselves into knots trying to thread the needle on marriage. But today, Democrats are unified and solid and it’s the Republicans who are doing that painful-to-watch dance.
As I reflect on my 14 years in the marriage movement, today it feels as if things have come full circle. I left the courtroom feeling confident about a win, but whether we win on this case or not, I feel as though our movement has done the work, built the momentum, shown the American people the depth of our love and commitment, and made our case for a better, more equal country. Even in the worst-case scenario—if we had to go back to work after a loss—the question is no longer if we’ll have the freedom to marry nationwide. The only question is how soon.
But if I were a betting man, I’d certainly put my money on the Justices doing the right thing by the end of June. Love, like freedom and family, must—and will—win.
Marc Solomon, National Campaign Director for Freedom to Marry, is author of Winning Marriage: The Inside Story of How Same-Sex Couples Took on the Politicians and Public—and Won.