04/17/2013 08:32 pm ET Updated Dec 06, 2017

The Gay Rosa Parks and Me


I like to imagine that when I arrived at the steps of the U.S. Supreme Court early on the morning of March 24, I was greeted by a sign like those you see at amusement park attractions: "The wait time for a seat at the oral arguments in United States v. Windsor is 1,620 minutes." I took my place in the line at 6:30 a.m., fresh off the Megabus from New York City, and burritoed myself in multiple blankets to protect myself from the cold that I would have to brave for the next day. I played Taboo with the young lawyer friends I made in line. Eventually, the sun set, and D.C. looked pristine and safe, as if this were a movie about the night when I slept outside in D.C. I fell asleep at 1 a.m., and when I awoke at 5, the illuminated Capitol was grinning at me. (I'd never slept on a sidewalk before, but I imagine that there are worse pieces of concrete real estate on which to make a bed.) Ultimately, I waited for 27 hours to witness an ancient, stooped woman utter something about "skim milk," and I tell ya, that wait was worth every one of those 97,200 seconds.


The line

That said, the line was exhausting. Any oral argument at the Supreme Court is open to the public, but seating is extremely limited, and it wasn't clear how many of us would get in. There were conflicting accounts from different schmucks in the line who were suddenly regarded as some sort of oracle simply because they seemed to know something that the rest of us didn't. Some wise guy at the front made a list of names on a notepad -- you know, the way someone always does to establish order in a line when the powers that be have established no order at all -- and then appointed himself the queue's de facto emperor and was choosing to let anyone into the front of the line if he liked them. It was not unlike Lord of the Flies, and I was afraid that my lawyer friends and I would end up like Piggy and the conch. Essentially, while waiting in line at the Supreme Court to witness a landmark case about fairness, people tried to cheat. I doubt that the irony of that fact will ever stop astounding me.

Once the sun rose on Wednesday morning, the morning of the oral arguments in United States v. Windsor, the line was suddenly longer than it had ever been. My heart was thumping, and I was sweating so much that I was no longer cold. They ended up letting 60 people into the courtroom. I was the fourth to last person they let in; I guess I'd taken the right place in line at the right time. And suddenly: Look! There's Tammy Baldwin! And Nancy Pelosi! I felt like Forrest Gump.

I immediately noticed how policed the audience is. Security personnel walk up and down the aisles, keeping everyone in fear of being kicked out should they so much as cough funny. Muted bells buzz to announce the beginning of the arguments, and with that sound the entire audience rises to its feet with such speed that it's as if their chairs have pushed them to standing position.

I noticed that the tone of the room is unspeakably formal. On days when the court is hearing cases regarding cable companies, I'm sure that that formality wouldn't be so jarring, but on this day, the formality was haunting. It was like watching a science project on the worthiness of someone's love.

The hardest part was watching Edie Windsor in the courtroom. This case was built around the nearly half-century that she spent with her wife, Thea Spyer, but there wasn't a word spoken about their relationship. Instead, a few of the justices worried about states' rights. But, I wondered, doesn't a clear case of discriminatory behavior supersede a state's right to make its own rules? I might be an artist and not a legal scholar, but if we look back at other civil rights cases that have gone in front of the Supreme Court, cases like Lawrence v. Texas and, most useful here, Loving v. Virginia, didn't the Equal Protection Clause of the U.S. Constitution supersede states' rights? And wasn't the country better for it? Gay Americans have, up until now, primarily made their case in fighting for their basic equal rights not in the courts or the legislatures but on television, at school dances and at dinner tables. Sure, antidiscrimination laws have been passed, and the right to marry has been granted by state legislatures, courts and public votes, but this doesn't explain the rapid shift in public opinion to my people's side. At times the gay community has brought the wariest of our neighbors to our side simply by giving them the opportunity to get to know what our hearts are all about. But there I was at the Supreme Court, and the future of the gay rights movement depended on the technicality of an estate tax.

But this is in our favor: Edie was not there whining about love and fairness, which, at the end of the day, are not empirical. But estate taxes are. I firmly believe that we have already won the fight on the questions of love and fairness. There are some geezers on farms and in churches whom we'll never sway, but just look at the polls: We are swaying the soul of this country to our side. But empirical data about taxes is what will win us this fight on paper, because, at the end of the day, numbers can't take sides.

Not only is the Supreme Court policed like a prison, but oral arguments are timed like the SAT. Edie's lawyer, Robbie Kaplan, made her final argument, followed by Paul Clement, the opposition's lawyer, making his. Chief Justice John Roberts looked at each of them, and, as if in a race to find the world's quickest talker, he gave his valediction: "Thank you, counsel. Counsel. The case is submitted." And with this, that muted bell buzzed, the entire hall pushed up to our feet, and we were rushed out by security. Like that part in Titanic when the ship slips underwater and Rose can't find Jack, I couldn't find my lawyer friends in the sea of people, and the magnitude of the moment washed over me. Alone and numb, I shuffled along with the stampede, struggling to process what I'd just witnessed, because, on top of being overwhelmed by the largeness of the history of which I was a part, lawyer speak is hard to grasp if you haven't gone to law school. I didn't quite understand what anyone had said in there.

When you enter the Supreme Court building, they lead you through a side door that looks like it's taking you into an office building, but when you leave, you go out the front. I shuffled down the hallowed halls in the huddled mass, and we squeezed out the portico of this intimidatingly renowned building. The sight that greeted me was magical. (Had the entire façade of the building not been under renovation, forcing us to exit under scaffolding, it would have been more magical, but there was magic nonetheless.) Standing at the foot of that endless marble Greek staircase was a crowd of chanting rallyers with signs and flags, and I couldn't help but think that this is what Martin Luther King Jr. or Harvey Milk saw as they walked out to give their speeches on dreams and hope. (In retrospect, my crowd was obviously smaller then theirs, but it still felt Biblical to me.)


My view from the portico

As I reached the bottom of the steps and joined the crowd, the specialness of having been inside the courtroom suddenly evaporated, because I was now an inconspicuous member of the masses. (The democracy inherent in this felt fitting.) Then the voice of the crowd climaxed in a cry: "Edie! Edie! Edie!" I turned back to look at the edifice from which I'd just come, and there she was, descending a most treacherous set of steps at 83 years old, having just left the political science experiment that will probably be the bookend of her life. Edie is a regular woman who, during most of her time on Earth, was known to no one but her lover, her family and her friends, but now she was waving at a mass of superfans who had come to know her through memes and HuffPost articles, and they revered her as their torchbearer of sorts. Edie marched into a throng of reporters wielding cameras, literally minutes after leaving the courtroom. The weight of the moment debilitated me, but imagine what she must have been feeling.

Afterward, my friend who knows Edie well said that she looked exhausted in her remarks to the cameras. And I imagine that she was exhausted, reflecting on this case that will forever be attached to her life, and looking ahead at the three months of anticipation that lay ahead of her. I imagine her thinking, "What will this gaggle of nine unelected figures have to say? The nightly hour-long process of putting my sick Thea to bed, the daily swims to get her some exercise, the years of keeping our love secret for fear of losing our jobs... Will these justices think our love was worthy?" But watching this beautiful elder come down those stairs full of joy, her pink scarf blowing in the wind, looking younger than I look at 23, I didn't see any exhaustion. I left that clinical courtroom confused, bewildered and strangely sad, but when you watch what Edie said to those reporters, it's clear that she left with the energized hope of my people.

I was interviewed about half a dozen times while I waited in line, and every interviewer asked me the same question: "Why are you here?" Each time I answered, "Because Edie is the gay Rosa Parks." When I'm a very old gay man, the fact that I have a husband and children will give no one much pause. Saying that I'm married will not lead people to assume that my spouse is a woman. When I'm a very old gay man, we'll look back at Edie's case as the moment when it all truly changed, in the same way that we can look at Rosa Parks as the woman who shifted that paradigm. Edie's refusal to pay a tax from which a straight person would have been exempt seems stirringly similar to Rosa's refusal to get out of a seat in which a white person would have been able to stay. It was another Supreme Court case, Browder v. Gayle, that ripped off the segregation Band-Aid, letting anyone sit wherever they damn well chose. And, once that happened, segregation in this country was effectively over. When the Supreme Court overturns the Defense of Marriage Act -- not if, but when -- it will all be over for the bigots of our time, as well. I imagine that before the African-American civil rights movement, segregationists feared that if you integrated even slightly, blacks would win, because if you can sit next to each other on the bus ride home, who's to say you can't sip out of the same water fountain? This case will snowball for our generation in precisely the same way. Once gay marriages are federally recognized, married gay federal employees won't have to fight for benefits for their spouses. The wife of a female soldier from New York will be recognized by the United States Armed Forces as her spouse. And if her wife is recognized, who's to say that the male partner of a male soldier from Tennessee shouldn't be recognized, as well, just because Tennessee doesn't recognize gay marriage? These are the consequences of overturning DOMA that the religious right fears so vehemently, and for good reason. Not only is public opinion changing so rapidly that, pretty soon, a state like Oklahoma will be able to pass gay marriage simply by ballot, but the legal system will soon start tumbling in our favor with little effort from us. And in the same way that my 80-year-old African-American uncle can look back and say that it all started with Rosa Parks, when I'm a very old gay man, I'll be able to look back and say, "It all started with Edie." This is the beginning of the end. And when I'm a very old gay man, I'll be able to look back and say, "I was there."