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WASHINGTON—Edith Windsor, the 83-year-old lesbian who brought the challenge to a key provision of the Defense of Marriage Act (DOMA), walked down the front steps of the U.S. Supreme Court on the last day of the March arguments in two major marriage cases. Her hundreds of supporters outside the court blasted Alicia Keys’ hit “Girl on Fire” when they caught sight of her and let out a massive cheer. The stylishly dressed Windsor waved like a rock star and then went to a bank of microphones to talk to reporters on the court’s portico.
Paul Clement, the bespectacled conservative legal star who defended DOMA, left the court building by himself, carrying his scuffed-up leather briefcase. He slipped out to the court’s north side, avoiding the scrum of press on the south portico. Lawyers arguing court cases usually come to the court’s portico to talk to reporters after arguments. House Minority Leader Nancy Pelosi, in the courtroom to hear the DOMA proceedings, assessed Clement’s defense of the law: “What a stale role to play in life.”
The Supreme Court cases challenging two marriage laws, California’s Proposition 8 and the federal Defense of Marriage Act, are far from decided, but Clement’s back-door exit and Windsor’s parade down the front steps are emblematic of the two sides in the wake of the oral arguments—and a runaway public campaign aimed at media, politicians, and other public figures to force acceptability of same-sex marriage. Even though traditional marriage advocates represent about half of Americans, they kept a low profile because they face not only the label of dissenters, but bigots.
In the national debate gay marriage advocates appear triumphant, even though the Supreme Court justices strongly indicated they don’t intend to issue the sweeping ruling that gay advocates want. Despite the political pressure, the justices don’t appear ready to say that same-sex marriage is a constitutional right, but instead in the arguments they sought to narrow how they decide the questions before them.
On the first day of arguments, when the court considered Prop 8, traditional marriage advocates held a march outside the court several thousand strong—a diverse crowd, with a strong presence of Hispanic and Chinese families, indicating demographic points of strength in the movement. The challenge to Prop 8, a state voter-passed constitutional amendment that defines marriage as between a man and a woman, is the biggest threat to traditional marriage laws: If the court finds California’s law to be discriminatory against gays, that would threaten all 41 states with similar traditional marriage laws.
On the second day of arguments, as the court considered Section 3 of DOMA, which defines marriage as between one man and one woman for the purpose of federal benefits, traditional marriage supporters were scarce outside the court. The most visible opponents of gay marriage were the Westboro Baptist protestors, holding their shocking signs that said things like “God hates fags.” The handful of Westboro protestors reinforced the message of gay-rights activists that opponents of gay marriage are first of all a minority, and secondly, bigots. Taking that message to social media, young people that same day changed their Facebook profile pictures to the Human Rights Campaign’s red logo of an equal sign, an expression of support for same-sex marriage.
Inside the court Chief Justice John Roberts told Windsor’s lawyer, Roberta Kaplan, that the gay movement was not politically powerless as it argued it was, a characteristic of a class that deserves heightened protection from discriminatory laws. “Political figures are falling over themselves to endorse your side of the case,” Roberts said.
Just that day Sen. Kay Hagan, D-N.C., who previously opposed same-sex marriage, announced that she had changed her views. The day before, Sen. Jon Tester, D-Mont., said the same. Nine Democratic senators who opposed same-sex marriage during the 2012 election have changed their position in the few months since. Only a handful of Democratic senators remain who support traditional marriage.
Former Secretary of State Hillary Clinton also changed her position in March, announcing her support for same-sex marriage. Her announcement followed a March 7 Washington Post op-ed by former President Bill Clinton, who signed DOMA into law in 1996, but now says the law should be overturned. Clinton announced his support for same-sex marriage in 2009.
Former pastor Rob Bell, who challenged biblical teaching on hell in his 2011 bestseller Love Wins, challenged church teaching on marriage in a March 17 forum at Grace Cathedral in San Francisco, calling it “narrow, politically intertwined, [and] culturally ghettoized.” Saying “the ship has sailed” on same-sex marriage, he jumped aboard too in the lead-up to the Supreme Court cases.
But orthodox religious leaders aren’t conceding the point so quickly. As Bell announced his position, Timothy Keller, the pastor of perhaps the largest theologically conservative church in New York City, Redeemer Presbyterian, addressed the issue at an Ethics and Public Policy forum for journalists in Miami. Keller said that even though views on gay marriage may be changing politically, personal religious views against homosexuality are likely to remain more rigid because they form a core part of the Bible. In that way, homosexuality is different from race, he argued.
“[The Bible] is very clear on marriage and sex,” Keller said. “There’s an inertia in the Bible that allows a person to get a lot of leeway in politics … but it doesn’t give you a lot of leeway on those social issues and basic theology.” Keller, whose views on homosexuality and gay marriage drew wider media scrutiny after the Miami event, acknowledged the political winds are strong against even admitting to believe the concept of biblical sexuality. He cited the White House forcing Pastor Louie Giglio to remove himself from offering a prayer at the president’s inauguration this year because of Giglio’s orthodox Christian views on sexuality.
“What we were being told was, ‘You’re beyond the pale,’” Keller said. “Not just that you’re wrong, but respect for you is wrong. That was heard loud and clear in the conservative Protestant world … that we don’t even have a right to be in the public square.”
Polls show the country shifting rapidly toward greater approval of same-sex marriage, but it’s not a majority view yet. A Pew Research Center poll released before the Supreme Court arguments showed 49 percent of the country approves of legalizing same-sex marriage, compared to 33 percent a decade ago. But The Washington Post recently pointed out a “Bradley effect” in polling on the issue—when voters express support for an African-American candidate in polling because they don’t want to appear intolerant, but they’ll vote differently in the privacy of the ballot box. In the voter initiatives on same-sex marriage that passed last year, polling ahead of Election Day showed much higher margins of victory than the measures actually garnered in the end.
The high court seemed ready to let that battle in the ballot boxes continue, which is what traditional marriage supporters had advocated. Both the DOMA and Prop 8 cases are exceedingly complex, and the court has many options for resolving them. The justices could issue broad rulings, issue narrow rulings, or dismiss the cases on technicalities like standing or jurisdiction.
If the court does decide the cases on their merits, Justice Anthony Kennedy, the key vote who has written the court’s two major gay-rights opinions, seemed unwilling to go as far as the challengers to Prop 8 and DOMA want: that gay marriage is a constitutional right. During arguments he said gay marriage advocates were asking the court to go into “uncharted waters,” and he wasn’t sure which metaphor those waters led to: a “wonderful destination” or a “cliff.”
The one thing that apparently held Kennedy back was the lack of social science evidence of the effect of gay marriage on children. In the Prop 8 arguments he noted, “We have five years of information to weigh against 2,000 years of history or more.”
Kennedy’s reasoning parroted a brief by two conservative scholars, Leon Kass and Harvey Mansfield. The pair argued that same-sex marriage is a recent innovation (it didn’t exist anywhere until the year 2000) and not enough time has elapsed for any reliable scientific information on children raised in such households to emerge. Keller, in his Florida talk, similarly argued, “Give it 30 years … to some degree, the proof will be in the pudding.”
The courtroom, even though it was packed in both cases, had a serenity to it that was absent in the political fervor and demonstrations outside—no cameras, no cell phones, and no signs allowed. No one stood up and made a scene. It was an intense intellectual conversation between nine justices and a bench of lawyers, punctuated by a sick Justice Sonia Sotomayor’s sneezes. Of course that serenity is by design, because the court is supposed to be immune to political noise.
But the political noise may get to Kennedy over the next couple months, in the way that some imagine political pressure played into Roberts’ surprise decision upholding the 2010 healthcare law. If Kennedy is the key vote toward legalizing same-sex marriage, having written the court’s two major gay rights opinions (Romer v. Evans in 1996 and Lawrence v. Texas in 2003), he might see himself gaining a glowing place in history.
Still, even liberal justices Stephen Breyer and Ruth Bader Ginsburg never described same-sex marriage as a constitutional right in the arguments. Because the justices seemed uninterested in giving gay marriage the status of a civil right, the subject of potential threats to religious liberty—a key point in the debate for traditional marriage proponents—didn’t come up.
One central justification for traditional marriage laws—encouraging responsible procreation—did arise, but it didn’t gain traction with most of the justices, even though six are Catholics and three are Jews, faiths that emphasize the intertwining of marriage and procreation. Briefs from religious leaders like the National Association of Evangelicals and Catholic professor Robert George of Princeton University argued that the state should continue to preserve marriage as an institution between one man and one woman because only that relationship produces new human beings.
The lawyers defending Prop 8 and DOMA avoided that topic. In California, for one, same-sex couples can already adopt children regardless of whether they are “married.” Charles Cooper, the lawyer defending Prop 8, dwelled briefly on the procreation argument, saying that redefining marriage would make its purpose not raising children but the “emotional needs of adults.” Culturally speaking, procreation is already distant from marriage’s purpose: In a 2010 Pew Research Center survey, 93 percent of respondents named “love” as an important reason to get married, while only 59 percent said having children was an important reason to marry.
Clement, in defending DOMA, didn’t mention procreation at all, but the other side did. Solicitor General Donald Verrilli Jr., arguing against DOMA, said the law had no connection at all to promoting procreation in marriage. The liberal justices also attacked that point. Only Roberts defended the idea: “When the institution of marriage developed historically, people didn’t get around and say, ‘Let’s have this institution, but let’s keep out homosexuals,’” Roberts said. “The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”
Even if the procreation argument floundered, traditional marriage defenders may get roughly what they wanted. The National Organization for Marriage, the Family Research Council, the Alliance Defending Freedom, and the Heritage Foundation prepared a booklet on the issue ahead of the cases. Its conclusion? “The Supreme Court should let the people choose.”
If the justices do what it looks like Kennedy may want them to do—ban the federal government from defining marriage and give that power to individual states—the political future is not necessarily inevitably and nationally victorious for gay marriage advocates. As of now, 41 states have defined marriage as between a man and a woman, and nine have legalized same-sex marriage. Despite polls shifting in favor of same-sex marriage, states remain that will probably maintain traditional marriage laws for the foreseeable future.
The morning of the DOMA arguments, several Supreme Court litigators sat in the court’s cafeteria drinking coffee and parsing the arguments. One had printed out the transcript from the previous day’s arguments, which he thumbed through as his colleagues brought up points. They made educated predictions, but landed ultimately where the most novice Supreme Court observer is: They have no idea what the court will do when it rules on the cases this summer.