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History in the high court

DOMA is doomed

Friday, March 29, 2013

So it’s over. Two days that are now part of LGBT history.

Two back-to-back arguments at the United States Supreme Court, with most of the country paying attention—hearing about our lives, our relationships, and how discriminatory government policies and voter initiatives mark us as inferior, unequal, and vulnerable.

In Wednesday’s case, the issue was section 3 of the Defense of Marriage Act (DOMA), which withholds federal protection and recognition from same-sex spouses. Once again, the Justices were not only engaged, but talked about us in terms we have rarely heard in these hallowed halls.

My good friend and terrific legal scholar Nan Hunter has written up her analysis here. I won’t rehash all the details of the argument.

Nan and other folks on many other sites, including the fabulous SCOTUSblog, do a great job of that. But on Wednesday, even more than on Tuesday, I was struck by the general respect the Justices displayed for us and our relationships.

I agree with most of the commentary so far: it looks like DOMA is doomed.

Justices Ginsburg, Breyer, Kagan, and Sotomayor made plain their view that the federal government’s refusal to recognize the marriages of same-sex couples simply because they are same-sex couples is not justified by any legitimate rationale.

Justice Kennedy, the fifth and deciding vote, also expressed the clear view that DOMA harms children. Protecting the children in same-sex headed households clearly weighs on Kennedy—an issue he mentioned multiple times yesterday as well.

Even Justice Alito — clearly no champion on our issues—talked about “committed and loving same-sex couples” in a moment that stunned me. This is not the language of someone who sees us as an other or an abomination.

While Justice Alito may be no friend, his comment at least suggests he views us through a frame of common humanity.

What was also telling was the absence of bare bigotry. No statements on either day compared us to pedophiles or murderers. Nobody claimed that states have a right to penalize people for being LGBT (just the pretense by some that Proposition 8 and DOMA do not do so). There was tone of civility and respect. This is a new day in the country’s most famous courtroom.

As NCLR Legal Director Shannon Minter and I were walking back to my hotel after lunch, we happened, by a total freak of timing (and maybe divine Goddess intervention), to run into Jean Podrasky and her partner Grace.

Jean, as you may recall from her guest commentary on Monday, is the first cousin of Chief Justice John Roberts. I had just been lamenting that I had not seen Jean over the two days despite trading e-mails and scanning every crowd. And then, there she was.

Jean and Grace had been in the courtroom for both days but had not been able to see the Chief Justice. Still, they were elated to have witnessed the arguments with other family members.

Jean’s simple story put a face on what we all know to be true—EVERYONE knows or loves someone who is gay, lesbian, bisexual, or transgender. Her willingness to raise her hand at this moment, when all eyes were on the court, helped reinforce that truth. I love that I got to say thank you again to this wonderful woman.

By June, we will know the outcome in both cases.

I expect we will win both, although the opinions may be fractured and narrow. But the victories will cement the progress that nothing can now interrupt. And even in the worst of cases—which I do not remotely expect to see—if Prop 8 or DOMA were to survive, we may stagger, but we will not fall down.

We are never going back, we are never turning around, and we are never giving up.

We all know how our story ultimately ends, and we have just written several pages that bring us ever closer to the near final chapter.

What an honor to have been here. What a gift to be able to do this work. Thank you for everything.

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14 more reader comments:

  1. Yay!

    Posted on Friday, March 29, 2013 at 10:17am
  2. The end of this article is inspiring, and so true. It gave me chills.

    Posted on Friday, March 29, 2013 at 10:18am
  3. I certainly hope so…but I wouldn’t be popping the corks off champaign bottles quite yet as it seems most have already

    Posted on Friday, March 29, 2013 at 10:25am
  4. Hey that’s me holding the rainbow banner!!

    Posted on Friday, March 29, 2013 at 10:28am
  5. I look at this with trepidation. I’m nervous about the outcome and don’t want to get my hopes up.

    Posted on Friday, March 29, 2013 at 10:41am
  6. I hope so …I have hope…But we can’t give up on this

    Posted on Friday, March 29, 2013 at 10:58am
  7. I would like to invite you to join our political debate group! All political affiliations are welcome and interaction is encouraged. I hope to see you all there and hear some of your thoughts! https://www.facebook.com/groups/433933526698211/

    Posted on Friday, March 29, 2013 at 11:00am
  8. AMEN!!!

    Posted on Friday, March 29, 2013 at 11:06am
  9. Wow.

    Posted on Friday, March 29, 2013 at 11:13am
  10. This makes my day!! :)

    Posted on Friday, March 29, 2013 at 11:36am
  11. Only the PUBLIC arguing is over. They are now arguing it between themselves, privately, deliberating on the fate of these two measures.
    It ain’t over until the gavel comes down, folks, and not meaning to throw a wet blanket over the celebration, we have celebrated prematurely in the past and been sorely dissappointed.
    It is NOT over……not yet. Even if both measures are struck down, which would be the landmark civil rights decision of our age, the work continues. So let’s not dance in the streets until the Justices come back with a final decision, and if it is favorable, throw all the street-dances you care to, then get ready to buckle down and do the HARD work, at the State level, battling conservative legislatures.

    Posted on Friday, March 29, 2013 at 12:07pm
  12. I always thought our Country was based on the creed “All men are created equal”.

    Posted on Friday, March 29, 2013 at 12:09pm
  13. I don’t know if I believe it’s truly OVER yet… but I do completely believe that we are making immense progress with these issues here. Marriage equality is only the first step, if you ask me. It’s only going to continue to get better from here. <3

    Posted on Friday, March 29, 2013 at 12:32pm
  14. it aint over till the decision is handed down huny

    Posted on Friday, March 29, 2013 at 4:42pm