As I lay in my sleeping bag on the sidewalk outside the Supreme Court on Monday in line for Tuesday’s marriage equality argument, my mind was racing. Primarily, I marveled about how far we’ve come as a society in recognizing the dignity and rights of gay people in such a short period of time.
I thought about the fact that when I attended a small, close-knit high school in rural Maine, being gay was so taboo, and being openly gay was so dangerous, that I honestly thought that there were no gay students in our school. I was wrong. When I returned for my reunion a couple of years ago, the atmosphere has changed to such an extent that nearly a third of the students were out—including my best friend!
I also thought about all the difficult legal battles we at the ACLU have fought over the past two decades to afford gay residents of our state even the most basic rights—including the right to jointly adopt children with one’s partner; the right to form a Gay-Straight Alliance in high school; the right for a worker to receive health benefits for his or her same-sex partner; and, most recently, the right of the couples who married the day after a federal judge struck down the Michigan ban on same-sex marriage to have their marriages recognized by the state.
While we won most if these cases, it was remarkable to think how the government fought us tooth and nail and spared no expense to defend discrimination. And it was satisfying to think that now there was a growing consensus in society that the ACLU was on the right side of history.
I had been to five oral arguments at the Supreme Court and sat at counsel table for three of them. However, this case was special. When I started at the ACLU 18 years ago, the idea that we would achieve marriage equality in such a short time was a pipe dream. But here we were, sleeping outside for the opportunity to witness oral argument in what was likely to be landmark civil rights victory – a rare happening with such a conservative Supreme Court.
The argument itself was fascinating. At first, the conservative justices peppered Mary Bonauto, a hero of the gay rights movement for decades, with questions suggesting that the court was powerless to declare a right to same-sex marriage when the 17 countries in the world that recognize same-sex marriage did not do so until the 21st century. We were concerned. Why were the justices so fixated on what Plato thought about gay relationships in ancient Greece rather than the blatant discrimination gay couples faced today?
But then the more liberal judges, and yes, Justice Kennedy too, poked some major holes in the state’s argument that denying gay couples the right to marry was okay because the state wanted to insure that children would grow up in a home with married parents. How exactly does withholding marriage from one group, increase the value of marriage to the other group?
Isn’t one of the goals of marriage to bestow dignity on the couple and doesn’t that apply equally to same-sex and opposite-sex couples? Doesn’t the constitution place limits on the ability of people to vote for discriminatory measures? How can religious concerns be used to discriminate against gay couples any more than it can be used to discriminate against interracial couples? Wouldn’t the children of gay couples benefit if their parents could marry?
The arguments produced some noteworthy moments that only those present could truly experience: A scary, anti-gay activist interrupted argument by screaming at the top of his lungs about abomination and hell, and he continued to yell for several minutes as he was dragged out of the courtroom by marshals. The audience chuckled loudly when Justice Ruth Bader Ginsberg (a/k/a the Notorious RBG) asked Michigan’s attorney something like, “If it’s true, as you say, that the state’s sole interest in marriage is procreation, could the state deny a marriage license to a 70-year-old?” And, at one point, Justices Scalia and Thomas leaned back so far in their chairs it looked like they were sleeping in a lounge chair by the pool rather than presiding over a landmark civil rights case.
As I stepped outside after the argument onto the sunny steps of the Supreme Court and looked out at the hundreds of gay pride flags and signs, I felt optimistic about the capacity for society to change. Obviously, we have a long way to go until LGBT persons have true equality and there are so many seemingly intransient problems that we face in this country—continued oppression of people of color and the poor, attacks on reproductive freedom, the loss of privacy, and mass incarceration, to name just a few. But, at that moment at least, I felt hopeful that we are capable of transforming society to honor civil liberties and human rights.
By Michael Steinberg
Michael Steinberg is Legal Director of the ACLU of Michigan
(Picutred, l to r: Steinberg, Frank Colasonti Jr. and James B. Ryder)