Civil and Human Rights

Hopeful after almost 30 years of waiting in line for marriage equality

Lawyer hears little merit in arguments against gay marriage at Supreme Court.


At the crack of dawn today, I joined the long line of lawyers waiting to enter the Supreme Court, hoping to snag one of the few seats available to bar members to hear oral arguments in the marriage equality cases. This was hours before the start of argument, earlier than I’ve ever arrived before, but I could not miss this. I’ve been at the court for every major gay rights case, starting back in 1986 with Bowers v. Hardwick, when the court ruled that states could criminalize sex between gay partners. In those many hours in line, I could not help but reflect on how life for gay people, including me, has changed so dramatically since then. We’ve gone from being presumptive criminals to standing on the cusp of nationwide marriage equality.


Nervously, I wondered whether today’s cases would deliver on the promise of the court’s 2013 ruling striking down a key part of the Defense of Marriage Act, a ruling that prompted a slew of lower court decisions invalidating state laws prohibiting gay and lesbian couples from marrying. Disagreement by one appellate court brought us to today’s cases. The stakes for same-sex couples and their children could not be higher. With marriage equality a reality in nearly 40 states, could the Supreme Court really attempt to un-ring the wedding bells?


Finally, I was inside. The court had allotted an unusual two-and-a-half hours for argument, a marathon. Five lawyers, including the solicitor general of the United States, sparred with the justices, fielding questions from “redefining” marriage to whether courts even have any role to play here. Over those hours, what struck me the most was that the lawyers for the states seeking to defend the exclusion of same-sex couples from marriage could not provide any legitimate reason for doing so.


John J. Bursch, arguing for Michigan, repeatedly insisted that allowing same-sex couples to marry would delink child-rearing from marriage and discourage opposite-sex couples from marrying, an illogical argument if ever there was one. When pressed repeatedly by a number of justices to explain the connection, he really had nothing meaningful to offer. And it certainly did not help his argument that many same-sex couples are raising children, and that denying those families the important legal protections of marriage cuts against the states’ asserted interest in protecting children. Bursch even went so far as to claim that marriage was not intended to not confer “dignity” on married couples, an assertion that did not sit well with the justices. Not surprisingly, I’ve never found merit in any of the purported justifications for denying same-sex couples the freedom to marry, and it was refreshing today to see the emptiness of those arguments played out in our nation’s highest court.


The states were pretty much left with their plea to the court to go slow, to let the democratic process play out, to let state voters decide whether gay people like me can enjoy our constitutional rights. And there’s little question that those pleas fell on some sympathetic ears. But our Constitution does not permit majorities to deprive minorities of fundamental rights; there’s no “will of the people” exception to the 14th Amendment, which guarantees liberty and equality to all. As Solicitor General Donald Verrilli forcefully explained today, “Gay and lesbian people are laying claim to the promise of the 14th Amendment. Now.” And, as he further explained, it is the duty of the court to say what the Constitution requires — this is not something that is up to the voters. In other words, it’s not my burden to convince my neighbors that I’m entitled to my constitutional rights.


I don’t like to make predictions from oral arguments, and I certainly would not do so based on today’s. But as I left the court, I was hopeful, and that’s more than I could say back in 1986. I don’t believe that a majority of the justices were convinced today that there’s any legitimate reason to deny gay and lesbian couples the right to marry. And I think they understand how much gay and lesbian couples and our families are harmed by the denial of that right. Our nation is certainly ready for marriage equality, and the Constitution demands no less. I hope and trust that the court agrees.

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