12.10 pm. A reader writes:
I am writing from overseas where I live with my partner of 32 years in a sort of self imposed exile. He has been unable to obtain any sort of residency visa for the USA. We have been looking forward to this day. The phone is ringing off the hook and everyone is saying “you’ll be able to marry and come home.” I think I’m going to go light a candle and thank God and all the people who have fought so long and so hard to make all this possible. Bless you.
Bless the souls of those whose courage in extremis gave me and others the strength not to falter in pursuit of their dignity as human beings and their equality as citizens. We did it in part for those we left behind. And part of the reason I am crying right now is remembering them. I want them to come to the party. I want them to see they didn’t die in vain. Another reader:
I’m surprised by how moved I am – I’m a little choked up. I know I’m going to express this awkwardly. But the decision comes across to me almost like a ray of decency. There’s so much awful stuff coming at us all the time, but here, 5 justices have done something good and human and right. It doesn’t feel like a news story, so much as something good washing over the country. It’s really nourishing.
The world is a better place than it was an hour ago. How often can you say that?
Another:
I don’t know about you, but my head explodes when I read the following from Scalia’s dissent: “We have no power under the Constitution to invalidate this democratically adopted legislation.”
You mean like you invalidated a whole section of the Voting Rights Act (just yesterday!) and tried unsuccessfully to sink the entire Affordable Care Act? I’m not a lawyer, and my lawyer friends assure me that Scalia is brilliant, if extremist, but I read that kind of head-turning inconsistency and all I see is a hack, not a brilliant legal mind. And again, I’m not a lawyer, but isn’t the entire purpose of the Supreme Court to review the constitutionality of legislation (democratically adopted or otherwise) and invalidate it when necessary? What a dipshit.
11.55 am Dueling tweets of the moment:
And I suspect Jesus’ tears were of joy – because more children of God have finally been given the dignity he offered the most despised and marginalized of his time.
11.44 am. Scalia’s dissent was worth a little wait. On gay cases, they are like operettas of dyspepsia, and this one didn’t disappoint. Money quote:
The majority says that the supporters of this Act acted with malice — with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act.
To be sure. But defending it from whom? Kennedy explains:
The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Id., at 16 (footnote deleted). The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid.
When the Christianist GOP tells you in print that it is enacting a law to uphold moral disapproval of a class of persons, you really do get to animus. Religiously-inspired animus, but animus nonetheless. The subtler arguments – about, say, the federal need to maintain one standard for marriage recognition – were not part of that original debate. I was there. The whole thing was about “defending” marriage from those who would clearly demean it. The discrimination was explicit. At no point were the actual interests of gay citizens cited on the right. We were non-persons, because we were morally inferior and had no right to ask for that kind of equality. That’s how Scalia felt ten years ago, and he hasn’t changed. But he cannot change the legislative record or the rhetoric used at the time of the bill.
11.38 am. The president phones the couples and congratulates them.
11.35 am. Immigration equality is here. Again: after two decades of extreme anxiety, history wipes it away. You have no idea how much relief so many bi-national couples are now feeling.
11.23 am. Some have noticed how often Anthony Kennedy used the word “dignity” in his ruling. My own impression of the text is to note how Catholic it is. I mean by Catholic the sense of concern for the dignity of human beings that still resonates among the average Catholic population and, mercifully, now with the new Pope. This is the true measure of our shared faith: not a desire to use its doctrines to control or constrain the lives of others, but seeking always to advance the common good while leaving no one behind. No one.
The Church hierarchy’s Ratzingerian turn against this minority in 1986, its subsequent callous indifference to us during the plague years, its rigid clinging to 13th Century natural law rather than what or rather who was right in front of them … these were all tragic failures from the top. But not in the pews; not among lay Catholics; not among many of our families and friends. And that humane Catholicism is embedded in paragraph after paragraph of Kennedy’s text. He is talking about us, our relationships and our children as if we were human beings made in the same image of God with inalienable dignity.
It will one day – perhaps even today – seem banal. And it is. But to get to that banality required a revolution.
11.19 am. Great to see Pete Williams analyze the opinion for NBC – a long time after he was brutally outed, even when he was always out, always principled, and in a relationship that has lasted much of his lifetime. Proud of you, Pete, for thriving through all of it … until you got to do this. Amazing, innit?
11.16 am. Photo above: The amazing lawyer, Roberta Kaplan (right), and Edie Windsor, whose case gave the legal civil marriages of homosexual couples full federal equality. Windsor said, “I wanna go to Stonewall right now!”
11.11 am. In the end, it is pretty simple. Are we homosexuals lesser than heterosexuals? Are our loves inherently worth less? Are our marriages inferior to straight ones? Kennedy’s final answer:
DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others… 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.
11 am. I just called Aaron – just to tell him I love him. He’s in Ptown already as I wrap things up in New York. Dan had the same impulse:
Ditto. We still have the state-by-state struggle to include all of us. That fight will continue past this milestone. I just want to thank Dan for sticking up for me and Evan when we were far lonelier voices than today. I have to say that it is the most liberating feeling to hear your once near-solitary voice blend finally into a communal roar until it isn’t your voice at all any more. It’s the voice of justice.
We will all pass away (and so many dreamed of but didn’t live to see this day). Justice won’t.
10.56 am. Look how Kennedy uses Lawrence to advance his case and proves Scalia’s dissent in that case (that it paved the way for marriage equality) for him:
The differentiation [between heterosexual and homosexual couples] demeans the [homosexual] couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
I wondered how the welfare of children would emerge in this case – and it did, in defense of the dignity of tens of thousands of them. Didn’t expect that the words of a SCOTUS ruling would suddenly give me a huge lump in my throat. This is more emotional than I expected. But how can you anticipate a moment like this one?
10.50 am. Even having lived through all this seventeen years’ ago, and kept my eyes open as hard right and liberal Clintonites joined forces against the handful of us then fighting for this cause, I am still amazed to read the plain truth in a judicial ruling. Kennedy again:
The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.
My italics.
10.45 am. Tweet of the minute:
10.40 am. Perry is thrown out for lack of standing:
“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”
10.39 am: Tweet of the minute:
10.34 am. Kennedy money quote:
Though these discrete examples establish the constitutionality of limited federal laws that regulate the meaning of marriage in order to further federal policy, DOMA has a far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and the whole realm of federal regulations. And its operation is directed to a class of persons that the laws of New York, and of 11 other States, have sought to protect.
Translation: the feds may tinker with some aspects of a state’s civil marriages, but they may not remove an entire class of persons from equal protection. This is a conservative point – and DOMA was a betrayal of conservative federalism in favor of Christianist big government. I actually made that case sitting in front of the House hearings on DOMA. The Republicans were uninterested. They knew what they were about to do: gay-bait their way to re-election in 1996. And so Bill Clinton – a constitutional lawyer who signed this bill and who ordered his Justice Department to declare that it had no constitutional issues with it at all – gay-baited back. Today is as much a rebuke to the cynicism of Bill Clinton as it is to the fanaticism of the GOP.
10.27 am. What I’m now reading:
United States v. Windsor
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Have at it, Dishheads.
10.23 am. Rauch and I are name-checked:
10.19 am. Kennedy both defends federalism and basic due process and equal protection principles:
New York’s actions were a proper exercise of its sovereign authority. They reflect both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality. Pp. 13–20.
(b)
By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. DOMA cannot survive under these principles.
10.17. There may be a pause while I read the decision I’m actually trying to write about. Will post nuggets as I find them.
10.13 am. Tweet of the Day:
10.12 am. Some observers are noting language in the DOMA decision that seems to suggest that the Prop 8 decision will be a dismissal based on lack of standing. Not confirmed, but implied.
10.11 am. Now, through my unexpected tears, this from Anthony Kennedy:
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.
10. 10 am. “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty.”
10 am. Two preliminary thoughts. The first is how weird it is to be gay and married and waiting for this decision. It feels a little like waiting for your parents to acknowledge that you are their actual offspring, even though everyone has always known it. It feels both exhilarating and humiliating at the same time. Nine people are going to decide the worth and equality of my civil marriage? Who the fuck do the they think they are? Well, they’re the Supreme Court of the United States, dumb-ass. And so the mind turns.
Then: how on earth do they still manage to keep all this so embargoed? No leaks, no gossip – it’s wonderful, and a testament to how seriously all those intimately involved in these decisions respect the need for the secrecy that enables clarity and order. But to do it in this era, when everything and everyone leaks, is a testament.
