12/10/2012 05:31 pm ET Updated Feb 02, 2016

A More Perfect Union: SCOTUS Must Lead Us to Higher Constitutional Ground

Now that the U.S. Supreme Court has agreed to review the Defense of Marriage Act (DOMA) cases as well as the California Prop 8 case, it is helpful to understand the political context of these cases.

The notion of extending civil marriage licenses to gay and lesbian couples did not really burst onto the national scene until 1996. Conservative political strategists were thrilled to find their new eureka when their polling surfaced gay marriage as a potentially razor sharp divisive political tool. It proved to be a potent weapon and was used not only as a way to drive a wedge between President Clinton and an important part of his base, but in one election after another to intimidate progressive candidates. Karl Rove would come to refer to it as the "gift that keeps on giving."

When we battled the so-called Defense of Marriage Act DOMA in Congress in 1996 (and lost), it was crystal clear from the outset (at least to my legal mind) DOMA was unconstitutional. We got pulverized in Congress even losing the support of progressive members of the Senate like Senator Paul Wellstone (D-MN), who came to deeply regret this vote before his death, and even then-Congressman Chuck Schumer (D-NY) who was running for the Senate. The fact that members like these voted for the Defense of Marriage Act demonstrates how politically potent it was at instilling fear at the time. While there is no doubt DOMA was cooked up at some conservative think tank with the enthusiastic support of the RNC, President Clinton took it out of play by announcing quickly he would support it and signed it into law near midnight on September 21, 1996. Dick Morris later said it was the worst advice he ever gave President Clinton.

Since the mid 1990s, DOMA has blocked the flow of well over 1,000 rights, benefits and privileges to same gender couples, even those who are legally married in one of the nine states that now allows it. It also purports to tell states they do not have to recognize a marriage license issued in another state if it is to a same gender couple. To my legal mind, both of these provisions do not pass constitutional muster.

Again, those early years were tough. We would face down the the opposition, and then face down our friends. I will never forget the day that a few of us testified before Congress on DOMA. The only committee members that turned up were particularly hostile Republicans. They paused in their vitriol only occasionally to swoon over Andrew Sullivan, the conservative gay blogger who also testified that day. They seemed to love his analysis on every subject under the sun except the topic of his basic humanity. A particularly painful moment came during my testimony, one of the more animated and harsh members started waiving a letter in my face. Hot off the press, and by hand delivery to the hearing, President Clinton's Justice Department, with Attorney General Janet Reno at the helm, issued its opinion that DOMA was constitutional. They were wrong. And I predict that in this great era of gay rights, the Supreme Court will come to the same conclusion.

On the Prop 8 case, we will be treated to the historic legal arguments of the dynamic duo -- David Boies and Ted Olsen of Gore vs. Bush fame. They are lead counsel for the Plaintiffs, and I hope they will wear big capes with bright, large "As" for Allies. They are the super legal allies of our time. That alone will make the stand in line over night to gain access to the Supreme Court well worth it. The Prop 8 case has been spearheaded by the exceedingly clever Chad Griffin, the new head of HRC. I also believe that the Supreme Court will strike down Prop 8. The real issue is whether they do so based on the California Constitution only, or find the right to marry to be be so fundamental, that it must extend to all Americans.

Indeed, Justice Scalia predicted just this moment in his dissent in Lawrence v. Texas. In Lawrence, the court corrected a bad decision (Bowers vs. Hardwick) from 17 years earlier, and struck down all sodomy laws. While Bowers tossed aside pesky legal analysis in favor of pure historic animus as the basis of its decision, the Lawrence decision reads like a thoughtful, loving letter from a parent to his LGBT son or daughter. It was penned by Justice Anthony Kennedy who will be key in these cases as well.

If the Supreme Court does the bold thing -- and the right thing -- it will be exactly 17 years since that dreadful day on which Congress passed DOMA. DOMA has hurt many people for many years. And while it may have provided the right with a political baseball bat with which to bludgeon many candidates for years, the wind is out of the sails. What conservative strategists failed to account for is that LGBT people would fight back through simple honesty -- millions of acts of being open and honest each day at home, at work and in their communities. Frankly, to know us is to like us -- and even love us, and most of America came to embrace gay people as an essential part of our cultural mosaic. They also failed to see foresee another trend that has emerged over the years. That is, that many key conservatives have come to embrace gay marriage as reflective of their own values. In this past election, for the first time in 40 years, we actually won at the ballot box in four states. We have also seen a president rise to this moment in history, and get re-elected. Earlier, the president along with military leaders like Admiral Mike Mullen and Secretary Robert Gates brought us to higher ground with the end of DADT.

Now it is the Supreme Court's turn to us take the next step toward a more perfect union. And, in this way, we will more people attempting that most human of goals: to build one's own perfect union.