Although we will not know the outcome of the Supreme Court hearings on Prop 8 and DOMA until a ruling is issued in June, there is no question that the hearings themselves were historical. In presenting their case for marriage equality, proponents forced the Court to confront the central question of whether the fundamental human rights of LGBT people are protected by the U.S. Constitution.
Beyond the outcome and the details of these cases, the hearings were historical in another significant way. For the first time, the nation's attention was focused on the brilliance of the three women on the Court. From Fox to CNN to NPR to "The Colbert Report," media coverage of the hearings highlighted the incisive questioning of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. While the rulings may hinge on Justice Anthony Kennedy, the quotable zingers and tough interrogation belonged entirely to the women. It made me and women everywhere so proud!
In addressing the DOMA proponent's argument against extension of federal marriage rights and benefits to legally married same sex couples, Justice Ginsburg stated: "You're saying, no, state said two kinds of marriage; the full marriage, and then this sort of skim-milk marriage. [DOMA]"
Questioning the over-reach of Congress in adopting DOMA, Justice Sotomayor asked, "So they can create a class they don't like -- here, homosexuals -- or a class that they consider is suspect in the marriage category, and they can create that class and decide benefits on that basis when they themselves have no interest in the actual institution of marriage as married?"
Justice Kagan had two moments. The first was a bit of a "gotcha" when she called out the DOMA proponents' claim that the purpose of the law was merely to "equalize" marriage laws and had no intent to promote discrimination: "Well, is what happened in 1996 -- and I'm going to quote from the House report here -- is that "Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality."
Earlier, in the Prop 8 hearing, she pushed back on the Prop 8 lawyer's continued insistence that marriage was tied to procreation. She pointed out that couples who get married after child-rearing age are allowed to wed and stated: "I can just assure you, if both the woman and the man are over the age of fifty-five, there are not a lot of children coming out of that marriage."
The wit and wisdom of these Justices did more than spice up the media coverage of the hearings. It provided the American public with a clearer view into the discriminatory motivations of the opponents of marriage equality and a greater understanding of the absurdity of a two-tiered marriage system. They achieved this without a gap in their legal reasoning nor a wrinkle in their judicial temperament. Without these brave women, the silence of Justice Thomas, the out-of-touch ignorance of Justice Alito (who asserted that the issue of gay marriage was newer than cell phones) and the belittling sarcasm of Justice Scalia might have remained unchallenged.
Their brilliant performance makes me all the more committed to our cause of expanding the role of women at all levels of our nation's leadership. When women are at the table, we shift the conversation, and we shine light into dark corners and crevices. In short, we make a difference.
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