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SCOTUS Hearings on Gay Marriage Day Two: Good News, Bad News and Really Good News

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I had the great privilege to be seated second row center again yesterday just behind the advocates arguing yesterday before the U.S. Supreme Court in what will no doubt be another important case watched by many. While my head is still spinning with thoughts about the myriad arguments presented, my initial reactions are pretty clear:

Good News: We have support from Justice Kennedy on the merits of repeal of DOMA -- for all the right reasons. Although conventional wisdom tells us to not read too much into any Justice's questions in terms of what position they may take on a case, the tone of voice and body language in his questions yesterday suggested strongly to me that he is empathetic to repeal of DOMA for all the right reasons.

Bad News: Is that the jurisdictional arguments around standing were compelling, particularly those put forth by Amica for the court, Harvard Law Professor Vicki Jackson. She was thoughtful, thorough and I think persuasive in arguing that with respect to the appeal, BLAG (the House Congressional Committee self-appointed to defend the law) does not have standing.

Further bad news is that the Justices appear worried about some basic separation of powers issues presented by an administration not willing to defend a validly adopted law while still enforcing it at some level. I think the term used by Justice Roberts was: "Why doesn't the Executive have the courage of his convictions to follow through with not applying DOMA if he really thinks it's unconstitutional?" Hovering around these arguments was a sense that it really has been and should be the exclusive province of the Supreme Court to decide which of our country's laws are maybe constitutional or not. As Justice Scalia pointed out, probably not that of the attorney general or even solicitor general alone. When one thinks about our system based on a rule of law -- it sorta makes sense -- but as it pains me to agree with Justice Scalia.

Really Good News: But the really good news that I think we can take away from yesterday's hearings is a general acknowledgement from the entire court (well, eight of the nine who said anything) that they understand that the proverbial train has pulled out of the station with this 'experiment' around gay marriage and we're not only not going backward but they are not likely to jump in front of this heavy and fast moving train. The only question(s) for them now is whether, when and how to weigh in on the many issues that arise as a result of what is clearly a macro social change happening in our country and perhaps around the world.

The attorney for dear widow Edith Windsor, who was -- sadly -- hardly mentioned at all in yesterday's case brought on her behalf, did a terrific job at the very end of going toe-toe with the Chief Justice when he suggested that we (the 'gays') have now gained sufficient political power so as to not need any special protections from the Court. Roberta Kaplan, representing Ms. Windsor, pointed out that while a sea-change is happening around understanding the nature of gay relationships (that they're 'the same' she said on several occasions) that is not to be confused with a few very recent successes at the ballot box to suggest that we have 'political power' at the level he was suggesting. Indeed, in the famous case around gender discrimination where the court found women, though increasingly political powerful, were still underrepresented in the decision making bodies of the political process -- namely: the Executive, Legislative and Judiciary -- so that they needed certain protections.

The same can clearly be said of us (the LGBTQ community) still today. The difference for us is that it's less obvious where we are -- since our minority status is only disclosed voluntarily -- and not by virtue of our gender or race.

At the end of the day, the Court did a good job -- even better yesterday than Tuesday -- at listening to the arguments. I think almost everyone agrees DOMA is a bad law and the only question now is how to get rid of it and who should be responsible for that. If the Court punts on this current opportunity - there are plenty of other cases in the pipeline that squarely present the issues needed for decision on the constitutional question(s) without the prickly standing or other procedural questions that they could take up next.

Meanwhile, if we had a functioning Congress, they, too, could take up the question and actually repeal the bad law they passed in 1996.

What is clear is that we are far from done with discussing these issues at the Supreme Court. The past two days' hearings made it clear in many ways that follow on litigation will come to sort out other questions for the Court to decide.

So my two cents: if we don't lose (which I don't think we will), then it's a win. We live to see another day and will have plenty of opportunities to strategically bring the right case(s) with the correct and narrowly focused questions for the Court to decide. And they will.