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History in the high court

DOMA is doomed

Friday, March 29, 2013
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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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