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MOMENTUM: Advocates of redefining marriage rally at the court March 27.
Jewel Samad/AFP/Getty Images
MOMENTUM: Advocates of redefining marriage rally at the court March 27.

Gettin’ on board the gay marriage train

Marriage | Same-sex advocates ruled the public arena surrounding Supreme Court arguments for two landmark cases. But it’s far from certain the legal locomotion on marriage is ready to roll

Issue: "Unstoppable?," April 20, 2013

WASHINGTON—Edith Windsor, the 83-year-old lesbian who brought the challenge to a key provision of the Defense of Marriage Act (DOMA), walked down the front steps of the U.S. Supreme Court on the last day of the March arguments in two major marriage cases. Her hundreds of supporters outside the court blasted Alicia Keys’ hit “Girl on Fire” when they caught sight of her and let out a massive cheer. The stylishly dressed Windsor waved like a rock star and then went to a bank of microphones to talk to reporters on the court’s portico.

Paul Clement, the bespectacled conservative legal star who defended DOMA, left the court building by himself, carrying his scuffed-up leather briefcase. He slipped out to the court’s north side, avoiding the scrum of press on the south portico. Lawyers arguing court cases usually come to the court’s portico to talk to reporters after arguments. House Minority Leader Nancy Pelosi, in the courtroom to hear the DOMA proceedings, assessed Clement’s defense of the law: “What a stale role to play in life.”

The Supreme Court cases challenging two marriage laws, California’s Proposition 8 and the federal Defense of Marriage Act, are far from decided, but Clement’s back-door exit and Windsor’s parade down the front steps are emblematic of the two sides in the wake of the oral arguments—and a runaway public campaign aimed at media, politicians, and other public figures to force acceptability of same-sex marriage. Even though traditional marriage advocates represent about half of Americans, they kept a low profile because they face not only the label of dissenters, but bigots. 

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In the national debate gay marriage advocates appear triumphant, even though the Supreme Court justices strongly indicated they don’t intend to issue the sweeping ruling that gay advocates want. Despite the political pressure, the justices don’t appear ready to say that same-sex marriage is a constitutional right, but instead in the arguments they sought to  narrow how they decide the questions before them.

On the first day of arguments, when the court considered Prop 8, traditional marriage advocates held a march outside the court several thousand strong—a diverse crowd, with a strong presence of Hispanic and Chinese families, indicating demographic points of strength in the movement. The challenge to Prop 8, a state voter-passed constitutional amendment that defines marriage as between a man and a woman, is the biggest threat to traditional marriage laws: If the court finds California’s law to be discriminatory against gays, that would threaten all 41 states with similar traditional marriage laws. 

On the second day of arguments, as the court considered Section 3 of DOMA, which defines marriage as between one man and one woman for the purpose of federal benefits, traditional marriage supporters were scarce outside the court. The most visible opponents of gay marriage were the Westboro Baptist protestors, holding their shocking signs that said things like “God hates fags.” The handful of Westboro protestors reinforced the message of gay-rights activists that opponents of gay marriage are first of all a minority, and secondly, bigots. Taking that message to social media, young people that same day changed their Facebook profile pictures to the Human Rights Campaign’s red logo of an equal sign, an expression of support for same-sex marriage. 

Inside the court Chief Justice John Roberts told Windsor’s lawyer, Roberta Kaplan, that the gay movement was not politically powerless as it argued it was, a characteristic of a class that deserves heightened protection from discriminatory laws. “Political figures are falling over themselves to endorse your side of the case,” Roberts said. 

Just that day Sen. Kay Hagan, D-N.C., who previously opposed same-sex marriage, announced that she had changed her views. The day before, Sen. Jon Tester, D-Mont., said the same. Nine Democratic senators who opposed same-sex marriage during the 2012 election have changed their position in the few months since. Only a handful of Democratic senators remain who support traditional marriage. 

Former Secretary of State Hillary Clinton also changed her position in March, announcing her support for same-sex marriage. Her announcement followed a March 7 Washington Post op-ed by former President Bill Clinton, who signed DOMA into law in 1996, but now says the law should be overturned. Clinton announced his support for same-sex marriage in 2009.

Former pastor Rob Bell, who challenged biblical teaching on hell in his 2011 bestseller Love Wins, challenged church teaching on marriage in a March 17 forum at Grace Cathedral in San Francisco, calling it “narrow, politically intertwined, [and] culturally ghettoized.” Saying “the ship has sailed” on same-sex marriage, he jumped aboard too in the lead-up to the Supreme Court cases. 

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