President Obama calls from Air Force One to congratulate the plaintiffs in Hollingsworth v. Perry as they stand in front of the Supreme Court of the United States, with Human Rights Campaign president (and American Foundation for Equal Rights founder) Chad Griffin holding up his cellphone. Edie Windsor's attorney Roberta Kaplan, celebrating victory in United States v. Windsor, exults at a press conference, "The days of the skim milk marriages described by Justice Ginsburg are over." I type "marriage equality" into Google, and the search window is suddenly framed in rainbow colors.
We will not forget this day.
Justice Anthony Kennedy, who had already written two landmark pro-gay rulings -- Romer v. Evans in 1996, and Lawrence v. Texas in 2003 -- wrote for the 5-4 majority in overturning the gay-exclusionary definition of marriage in the Defense of Marriage Act:
The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State.... The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.
Justice Antonin Scalia, who angrily predicted in 2003 that Lawrence would lead to gay marriage, made another angry prediction in his dissent in Windsor: "By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition." From your lips to God's ears, Nino.
Chief Justice John Roberts did not address the merits in Perry. Writing for a 5-4 majority that did not break along the usual liberal-conservative lines, he threw out the case due to a lack of standing of the anti-gay petitioners, who intervened after California officials declined to appeal the District Court ruling overturning Proposition 8. Citing the brief for former Acting Solicitor General Walter Dellinger, which was much discussed during oral arguments in March, the Court wrote
Petitioners are not subject to the control of any principal, and they owe no fiduciary obligation to anyone.... States cannot alter [the role of the Judiciary in the federal system of separated powers] simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.
This procedural ruling means that the Court has not granted same-sex couples a constitutional right to marry. The Perry decision applies only to California -- which, however, is the largest state by population and adds 38 million to the number of people in jurisdictions with marriage equality. Just because we are not finished does not mean we cannot celebrate. And are we ever celebrating.
I think of "Everybody Rejoice (Brand New Day)" from The Wiz, a song written four decades ago by the young Luther Vandross. He always replied to questions about his sexual orientation, "It's none of your fucking business." His career was at stake. Fast forward to 2012, when Frank Ocean came out to popular acclaim -- and earlier this month, when dancers Antonio Douthit and Kirven Boyd of Alvin Ailey American Dance Theater married. It seems odd to say that lives will be changed by this beautiful couple's wedding photo, or by the warm reception that greeted Ocean's Channel Orange, but I think it is true. Our highest court did not lead cultural change in these cases, but followed it.
Of course, bigotry will not magically disappear with the two Supreme Court rulings, nor have we won marriage equality in all 50 states. We have to roll up our sleeves and finish the job, as Griffin said to the president. But our ultimate victory is no longer in doubt, and the extension of more than 1100 federal rights and responsibilities to married same-sex couples is a giant leap forward for a cause to which so many of us have devoted our lives.
So much bile has been spewed for so long by those who predicted society's total collapse if gay folk were granted equality under the law -- our simple right to the pursuit of happiness. My late colleague Frank Kameny loved to invoke that phrase from the Declaration of Independence. He defended it in combat in World War II and later with arguments instead of bullets on the home front. He and other pioneers tapped deep reserves of strength, and sacrificed much, in asserting their right to live in freedom and dignity. Let us toast our forebears from every walk of life for paving our path in myriad ways. Edie Windsor, just a few years younger than Frank, won't just get her estate taxes back -- she'll get recognition and respect.
Moments after the ruling, I call my fiancé Patrick, a native of the Congo and now a Belgian citizen, who is in Africa on business. Ten emotionally and financially challenging years have passed since I asked him to marry me. We held off, pending a resolution of the immigration issue.
"Sweetheart, we won!" "Oh my God! Now I can live in the United States?" Well, give them time to work out the details, but yes, my love. Yes.
This piece appeared in Bay Windows.
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