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Ian Bassin Headshot

They Saw the DOMA and Prop 8 Cases Coming

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"I can't believe that," said Alice. "Can't you?" the queen said in a pitying tone. "Try again, draw a long breath, and shut your eyes." Alice laughed. "There's no use trying," she said. "One can't believe impossible things." "I dare say you haven't had much practice," said the queen. "When I was your age, I always did it for half an hour a day. Why, sometimes I've believed as many as six impossible things before breakfast."

This week, the White Queen's lesson from Wonderland gets further validation as the U.S. Supreme Court hears two cases on gay marriage that not so long ago, would have been impossible to believe. Thankfully, some of those responsible must have once done a lot of practicing before breakfast. And regardless of what the Supreme Court does (though I'm optimistic), their stories should remind us all of the importance of believing the impossible.

In this post, Chris Geidner reflects on a 26-year-old Harvard Law School student who, in 1983, wrote a paper arguing in favor of gay marriage. At the time, at the dawn of the AIDS epidemic, the focus of the gay community was on surviving a coming plague, not fighting for the right to be Ozzie and Harriet. But Evan Wolfson charged ahead, arguing that "permitting full and equal self-expression on the part of all lovers for all beloveds ... will create a society more safely and richly founded on our individual freedom and equality." In 1989 the conservative writer Andrew Sullivan joined Wolfson and the two led the early arguments for gay marriage. In the eighties, the idea and the fight surely seemed improbable.

In 2009, another improbable couple launched another seemingly impossible quest: liberal lawyer David Boies and conservative stalwart Ted Olson teamed up to challenge California's Prop 8. But more than just challenge it, their goal was ultimate recognition by the Supreme Court of the constitutional right to same-sex marriage. Many in the gay rights movement criticized them at the time, fearing that their ambition might be premature; that if they failed to do what looked impossible then, they'd set the movement back a generation.

Olson and Boies, however, stuck by their vision and judgment. Their bet was that by the time their lawsuit reached the Supreme Court, the state of the law and public opinion would have changed enough to sway the swing justice, Anthony Kennedy, who is often thought to keep a finger on the political pulse of the nation. On this week of their long-awaited Supreme Court argument, they look prophetic.

When they launched their case, not a single federal court had questioned the right of a state or the federal government to restrict marriage to a man and woman. Today, no fewer than ten federal courts have issued such holdings. Two weeks before they launched their case, a Gallup poll found 40 percent of Americans in support of gay marriage with 57 percent opposed. Today, those numbers have more than reversed. And when they launched their case, only four states permitted gay marriage; today, nine do, as does the District of Columbia. In short, the unbelievably rapid advance of gay marriage over the past four years looks to have happened just as they must have predicted it would.

President Obama deserves credit too. The question he faced was whether it was proper for the president to argue that a law -- DOMA -- was constitutional when it so clearly violates basic precepts of the Constitution's guarantee of equal protection. When it was first proposed that the president might not defend this law, the idea seemed impossible, but upon closer scrutiny, the president and the attorney general found they could not reach any other conclusion. The greatest privilege of my time in government was serving as an associate counsel to President Obama during this deliberation.

The lesson I took from it, and that I think we all can take from the vision of those who foresaw this week is that often in quests for social justice, what seems impossible at first becomes inevitable later. And it's those who are willing to bear the brunt of being told that their ideas are impossible -- the Evan Wolfsons writing in college libraries about worlds only college students can imagine, the Ted Olsons betraying the dogmas of their social and professional circles to embrace the tide of history and the arc of justice, the Barack Obamas who think, maybe, just maybe, a skinny guy with big ears and a funny name could become president of the most powerful nation on earth -- that move us forward.

So the next time we're faced with something that seems impossible, or that draws the laughter or ire of our friends, if we believe the principle is right, think of Evan, of Olson, of the president, of the White Queen, and remember it's our duty to speak our vision. Without taking those risks and fighting for those impossible ideas, so much of our current world might not be possible. And it's those who see that possibility and embrace it that become history's heroes. Anthony Kennedy, if you're reading this, I'm talking to you.