Fear and Loving in Washington

“And you and me are free to be you and me”

It is surprisingly quiet here outside the Supreme Court of the United States the day before the Court hears oral arguments in Obergefell v. Hodges and the other three marriage equality cases it is considering this term.  There are a few more protesters, defenders of the old order, than there were yesterday.  The lines, one for the general public and one for attorneys admitted to practice in the Supreme Court, are longer now than they were when I started waiting in the bar line yesterday.  And there are more reporters out covering the calm before the storm.

But the people who are present to be witnesses to history, whether they secure one of the coveted seats in the Supreme Court for the arguments or end up displaying support from the sidewalks outside the imposing marble columns and steps of our nation’s highest court, almost all appear to support full inclusion of same-sex couples and their families in U.S. civic life and to share a sense of hopeful anticipation.  Attitudes range from the guardedly optimistic to the giddily exuberant — “I know it’s not the most likely but I’m still hoping for a unanimous decision like Brown v. Aboard of Education!” one woman and attorney gushed.

Tenth or eleventh in the bar line (depending on when you asked the line coordinator), I am thrilled to be able to attend the arguments in these momentous cases.  Far more than resolving the short-term legal fate of same-sex couples and families in Michigan, Ohio, Kentucky, and Tennessee, the Supreme Court’s decision in Obergefell may make a profound declaration of the fundamental dignity and equality of lesbian, gay, and bisexual persons (of all genders) in the U.S. constitutional order, in every state and every city.  As a gay man who professionally studies constitutional and LGBT legal issues and has taught and written about them for years, it is a special honor and treat for me to meet some of the brave couples who have been suing in courts across the country.  Their wide-ranging efforts as much as anyone’s have been vital to the educational, legislative, and litigation work that has set the stage for tomorrow’s historic hearing.

I tend to use CruzLines for more legal analysis, and I will resume doing so.  (Double-teaching this semester, covering constitutional law not only at the USC Gould School of Law but also for my friends at the UCLA School of Law, has kept me from posting of late.)  But I could not let the more human aspects of this moment pass unmarked.  On the side of the plaintiffs are arguments based on constitutional text, principle, and history, as well as the undeniable power of love to open hearts and minds and transform a culture.  On the other side are largely, at base, arguments rooted in fear, sometimes understandable fear of the unknown, fear of change, as well as from some quarters a shameless loathing of lesbigay people, lesbigay relationships, indeed our very lives.  But experience does not support those amorphous fears; it disconfirms what Supreme Court precedent and the plaintiffs quoting it have dismissed as “undifferentiated fears,” and “a bare desire to harm a politically unpopular group” cannot justify discriminatory treatment of a group of persons under the Constitution.  It is time, it is past time, for the country to live up to its constitutional commitments.  

Love Must Win.