By JON W. DAVIDSON
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 firstname.lastname@example.org.