April 3, 2013 at 9:13 pm EDT | by WBadmin
3 lessons from last week’s Supreme Court cases


For a law junkie like me, attending the Supreme Court arguments in the challenges to California’s Proposition 8 and the so-called Defense of Marriage Act, was like having seats on the 50-yard line of the Super Bowl or, to put it in gayer terms, like being in the front row as the curtain rises for one of the biggest Broadway hits of all time – except that it was not just a game or a show. It was history unfolding – a history that could either accelerate our path to full equality or create speed bumps on the road forward. Although we don’t yet know the results, attending the arguments drove home three important points.

First: We’ve come a very long way in a very short period of time. The Prop 8 argument took place exactly 10 years after arguments were heard in Lambda Legal’s Lawrence v. Texas case, which held the country’s remaining state sodomy laws unconstitutional. In 10 short years, we have moved from having 13 states that criminalized our sexual intimacy and none that provided our relationships any form of legal recognition to now having nine states and the District Columbia that allow same-sex couples to marry and nine more that provide same-sex couples virtually all the state law rights and responsibilities of marriage.

Similarly, 10 years ago polls were nearly two-to-one against allowing same-sex couples to marry, while a Washington Post-ABC News poll last month showed that support for letting lesbian and gay couples wed has now reached 58 percent.

Even the justices’ questions revealed our immense progress. For example, conservative Justice Alito posed a hypothetical about an injured gay soldier in a “committed, loving relationship,” acknowledging both the end of the military’s ban on open service and that we do form such relationships.

Second: This particular fight is not yet over. Notwithstanding Time magazine’s recent cover proclaiming “Gay Marriage Already Won,” at least with respect to these lawsuits, the arguments made clear that some justices whose votes are likely to be critical have not fully made up their minds. What happens over the next three months before decisions in these cases are expected could continue to influence their understanding of the issues. We therefore cannot let up in the efforts to pass marriage bills in Illinois, Rhode Island, Minnesota and Delaware or to win a veto override in New Jersey. We must also continue to make the case for the freedom to marry to our friends, families, neighbors and coworkers and in the media.

Beyond that, although I am hopeful that there are the necessary five votes to strike down the provision of DOMA that requires the federal government to ignore legally entered marriages of same-sex couples, it appears that the court is not yet ready to issue a sweeping ruling requiring all states to allow same-sex couples to marry. Whether Supreme Court review of the Prop 8 case is dismissed as “improvidently granted” (reinstating the Ninth Circuit’s ruling) or the appeal is dismissed for lack of standing (keeping in place the trial court’s injunction against Prop 8) or a limited victory is handed down, it looks like the struggle to win the freedom to marry will wage on in many parts of the country for some time to come.

Finally: Even a sweeping victory in these cases will not end our work. While ending bans on same-sex couples marrying has been an important goal for the movement, we need to continue fighting for the full civil rights of all people, married or not, as well as for the rights of transgender people, people living with HIV, LGBT parents and workers, those who are incarcerated or poor and our youth and elders. The good news is that winning the freedom to marry will free up more resources for those ongoing battles. I can’t wait until I’m at the Supreme Court again to see more of them fought.

Jon W. Davidson is legal director of Lambda Legal. Reach him at jdavidson@lambdalegal.org.

  • To all that have a concern. I have three Major reasons that the SCOTUS should throw out and dismiss the whole Same Sex Marriage case (if it is possible.) Please digest. There is no difference between a Religion or Orientations. Both are intangibles and abstract. There are as many Religions as there are Orientations. They both have beliefs of an Intangible entity. One believes in the Supernatural and the other the Unnatural. Both cannot provide proof of their beliefs. It is ethereal and vacuous with no real substance to detect. To ’say’ that one is Religious or Homosexual is just a “claim” to be one. The Entity is known but the Identity is unknown and indiscernible in the person. Both Entities have followers and believers. The members of ’each’ are in all phases of our Govt. and Society. But now the difference stands out despite being similar. Religion is NOT recognized and respected by our Govt. They CANNOT receive Rights and Benefits. There is a Separation of Religion and State, (First Amendment) However the opposite is true for Homosexuality. Their members, like the Religious, are in our Govt. and Society, but the whole Entity of Homosexuality is recognized and respected by our Govt. and given Rights and Benefits (Unconstitutional to the First amendment) In essence, our Govt. Separates Religion but embraces Homosexuality, even though they are exactly the same. This is hypocrisy, discriminatory and Unconstitutional. Now consider having “standing” in a Court of Law. Does a person or Entity that has the capacity to Lie about a “claim to be” with no Proof to substantiate their “claim”, have “standing” in Court. (Law and Proof being essential) Why then does a Person have to come “out” to reveal themselves? Why do Parents like Sen. Rob Portman and Wife ’surprised’ when their Son Will, (19 yr. old) “tell” them that he is Gay? 19 years and they can’t tell? Why NFL Player Harris, now retired, come “out” and “claim” Gayness? Unknown to teammates. Why do Gays Marry and have Children with Straights then come “out” to “claim” that they are Gay? The reason is that it cannot be defined and discerned It cannot be found with X-RAY, MRI, DNA, BLOOD TEST or Birth Certificate. If one Lies, there’s no way to prove otherwise. How can a Court of Law give “standing” to the unknown? No Proof, No standing, No case. Lastly, Everyone do NOT read the fine Print in the case of “Loving v. Virginia (1967) It is a case on miscegenation. A race issue of a Black Man (Male) Marrying a White Woman (Female). Gays use this case as proof for their side. Wrong. First, it was mainly about Race. Second, it involved a Male and Female. Third, the ruling went further, they said that Marriage is a basic Civil Right. Yes. Between a Male and Female, and each Gender has that Right. Now the fine Print part: (marriage, Male/Female) is “fundamental to our existence and our survival”. One has to wonder? What makes our existence (Civilization?) The Formula of a Male and Female, no other Formula exists. What assures our Survival? Maintaining that Formula. Therefore SCOTUS has already ruled that, what ever has that Formula is compelling to perpetuate for our Existence and Survival. Therefore Homosexuality is Moot. It would be so easy, simple and wise for SCOTUS to rule that Govt. cannot respect an Orientation as it cannot respect Religion. That an Indefinable entity does not have “standing” and that we as Judges ruled that the Male/Female Formula is necessary for our present existence, future existence and the survival of Mankind. A simple solution that can and will stand up in time. My take. Kenny Claing

    • Mr. Claing,

      Your claims have no basis in fact. I urge you to read the Prop 8 decision transcription.

      • I read all 32 pages of it, and I hope you did. Besides not recusing himself, everything he said was irrelevant. You obviously have no critical thinking. Not one thing that he ruled was relevant to Marriage. E.g. differences in income. Health insurance.etc, etc. What has any of that got ot do with getting Married? Believe what you want.

    • I keep hitting the “Translate” button to try and get your argument into something understandable, but it’s not working . . .

      Kenny – your entire premise is flawed. Orientation and religion are significantly different. It’s not even a case of “apples” and “oranges.” It’s “apples” and “surprisingly.” There’s no way to even logically address your flawed premise, because there is no logic to that premise whatsoever.

      As for your views on marriage, I suggest you read Judge Walker’s decision on Proposition 8. He addresses each of your claims in greater skill and knowledge than I could ever hope to.

    • You missed the fact that the justices brought up the fact that couples who are infertile still wish to marry, and are allowed to, different gender people who are over 50 and thus have naturally completed their breeding cycles are free to marry, as are the same if they choose to remain childless. Copulation between a male and a female of the species continues the species, not marriage. There are plenty of offspring created without marriages.

      Marriage is a legal entity that has mostly to do with establishing relationships for benefits, property, and finances. Truly, if corporations can be considered ‘people’, why can two people of whatever gender they identify with not enter into the legal contract that is marriage?

      • You and Justices are stuck on Man and Woman, Adam and Eve concept. It is correctly a Male and Female Formula. As long as it is Male/Female it does NOT matter if one can’t don’t want or too old, it does not matter at all. People not Married and have Children still uses the Formula of M/F. Gays that want Children need the opposite Gender to accomplish that, still M/F Formula. What Formula made you? Hatched?

    • With all due respect, I’m sorry to burst your bubble but your claim that sexual orientation is “intangible,” “abstract” and pretty much non-existent falls flat according to the American Psychological Association, the American Psychiatric Association, the American Counseling Association, the World Health Organization (agency of the UN), the American Medical Association, the American Academy of Pediatrics and pretty much all reputable professional medical organization around the world. They all aknowledge the reality of sexual orientation, and confirm that it is part of every human being. Sure. They have not found the gay gene yet. But they haven’t found the “musician,” “creative,” “athletic,” and the “big penis” gene either. Are those human characteristics non-existent then?

      • So what you’re saying is that you can go out in a crowd and hand pick ALL the Gays? That there is a ‘tangible’ way to determine Gayness? Psychologists only can point out that Homosexuality exists, like a Vegetarian exists but CANNOT detect it in the Individual Person. If someone you don’t know sues you and “claims” he’s Gay, could you prove he really is or not? No way possible. Odd that I’m mentioning ‘intangibles’ and you argue the point with tangibles. A Musisian is tangible, an Athlete is tangible and oh, boy, a penis is very tangible. You are lost in translation. Pity.

    • You know something, if your vacuous statements were NOT so filled with circular arguments and non sequitur you might have a leg to stand on. However they are and you sir have just proven the depth of your ignorance.

    • I am not a lawyer, but it is obvious that you aren’t either. There are two ways to respond to this:

      1) Just wrong on so many levels.
      2) Have you actually read the arguments and previous decisions? If not, then read up and get back to us. You are just so wrong on interpretation, laws, procedure, and logic. Also, take a class on logic.

      • Your comment lacks logic and no substance to offer. Only go read up. You’re wrong, etc. oh, did you write a thesis somewhere like mine? With your Logic Arguments. Your Arguments would NEVER stand up. Write one here now. Pity.

  • Be aware. The Washington Blade banned me from their Facebook page because I was critical of two of their articles, so be careful not to criticize them. I'm sure I will soon be banned from commenting here as well. And then I will take my protest more public.

    • Yet here you are Blanche.
      Why are you pouting over being banned? Did you feel it was alright to come to a predominately LGBT site and spout hate? Well it isn't and, if you did, you deserve what you got. Independents, equality advocates, and Democrats can't even go to most of the Repugnicans pages without being banned. Kinda hurts to feel left out and like nobody wants to hear your voice right? Well imagine what our lives are like DAILY.

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