Marriage Equality Arguments First Reaction: Ginsburg Strikes, Kennedy Wavers
Welcome to Outward's live coverage of the Supreme Court oral arguments in Obergefell v. Hodges, the case that will likely decide the legality of same-sex marriage across the United States. Mark Joseph Stern will update this page with reports from the court throughout the day.
On Tuesday the Supreme Court heard oral arguments in Obergefell v. Hodges, a case that could lead to nationwide marriage equality. The arguments arrive nearly two years after the court struck down a federal same-sex marriage ban, holding that it unconstitutionally "degrade[d] and demean[ed]" gay couples. This time around, gay rights advocates are hoping the court will take a step further and hold that all state-level same-sex marriage bans violate the 14th Amendment of the United States Constitution.
My colleague Dahlia Lithwick sat in on arguments today and will be reporting in-depth this afternoon. Before she weighs in, I’ll provide a few quick reactions to what we've heard so far.
1. Kennedy's vote is no sure thing.
Justice Anthony Kennedy, the author of the court’s three gay rights opinions and a swing vote on the issue, often asks tough questions of both sides—even the one he agrees with. Today was no different. Kennedy told Mary Bonauto, the attorney arguing for marriage equality, that he has “a word on his mind, and that word is ‘millennia.’ ” In other words, the definition of marriage as one man, one woman has existed for at least several milennia; why should the court change it so quickly? Yet Kennedy also pointed out that the time between Lawrence v. Texas (which legalized gay sex) and today is roughly equal to the time between Brown v. Board of Education (which struck down school segregation) and Loving v. Virginia (which legalized interracial marriage). And he declared that to his mind, the main purpose of marriage was to grant “dignity” to couples, a dignity many states now wish to deprive of gay couples, even those raising children.
These questions indicate that Kennedy may be sincerely struggling with a vital question in this litigation: Why should the Supreme Court hold same-sex marriage bans unconstitutional when legal same-sex marriage is so novel? On one hand, Kennedy feels a definition that has persisted for “millennia” should not be changed lightly. On the other hand, he realizes that opponents of integration and interracial marriage made similar arguments, and that same-sex marriage bans inflict indignity and hardship on gay couples.
When John Bursch approached the bench to defend Michigan's same-sex marriage ban, Kennedy seemed to forget about his previous trepidation and delivers a forceful argument for marriage equality. Bursch claimed, rather incomprehensibly, that if same-sex marriage is legalized in Michigan, opposite-sex couples will be less committed: They will think marriage is only about "their emotional commitment to each other," not about keeping couples "bound" to their children "forever." Kennedy sounded irritated, responding:
That assumes that same-sex couples could not have a more noble purpose. [They may say] of course we understand the nobility and the sacredness of marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.
2. Ginsburg is on fire.
Justice Ruth Bader Ginsburg, a likely vote in favor of marriage equality, fiercely pushed back against the notion that the definition of marriage has remained unchanged for millennia. Marriage as an egalitarian institution, Ginsburg noted, is a very recent innovation, even in America. Before the 20th century, men were the dominant partners in marriage, socially and legally; in fact, married women were forbidden from owning property when the 14th Amendment was ratified. Ginsburg seemed to suggest that same-sex marriage would fit neatly into this new idea of egalitarian marriage, and that endorsing a millennia-old definition of marriage would be supporting an implicitly sexist institution.
Ginsburg also pressed same-sex marriage opponents to explain how legalizing marriage equality could possibly hurt opposite-sex couples. "You are not taking away anything from heterosexual couples,” she said, when the state permits same-sex marriage. Justice Sonia Sotomayor echoed this point, demanding to know how barring gay couples from marriage could possibly strengthen marriage for opposite-sex couples. "How," she asked, "does withholding marriage from one group—same-sex couples—increase the value [of marriage] to the other group?" And Justice Stephen Breyer asked why states had any interest in forbidding same-sex marriage, repeatedly noting that marriage is a “fundamental liberty" which "the state offers to almost everyone"—except gay couples.
3. Roberts doesn’t look like a swing vote.
Many court watchers, myself included, speculated that Chief Justice John Roberts might swing in favor of marriage equality this time around, in large part to avoid a seemingly partisan 5–4 split. But Roberts didn’t appear to be playing the role of swing vote on Tuesday morning. When Bonauto said gay couples hoped to “join” the institution of marriage, Roberts suggested that they were instead looking to “redefine” it, since marriage was defined as one man, one woman throughout history. Roberts also told Bonauto that if the court strikes down same-sex marriage bans, “there will be no more debate,” which “can close minds.” He, like Kennedy, seems concerned that ruling in favor of marriage equality would go too far, too fast. But unlike Kennedy, Roberts has never gone on the record defending the dignity of same-sex couples.
4. Alito asks the morning's most offensive question.
When Solicitor General Donald Verrilli approached the bench, Justice Samuel Alito (who opposes a constitutional right to same-sex marriage) asked him a startlingly offensive and exasperating question. "Let's think about two groups of two people," Alito said—a same-sex couple who have lived together for 25 years, and two opposite-sex siblings who have lived together for 25 years. Both groups "share household expenses and chores in the same way." Then Alito dropped the morning's most galling line.
"They care for each other in the same way," he said. "Is there any reason why the law should treat the two groups differently?"
To his great credit, Verrilli did not trip up on the fact that Alito just openly compared same-sex love with sibling incest. Instead, he responded that "marriage is something more fundamental" than two siblings living together—it's about dignity and devotion, not "household expenses and chores."
Alito's question to Verrilli built upon an equally insulting question earlier in the morning. In an exchange with Bonauto, Alito strongly implied that legal same-sex marriage would inevitably lead to legal polygamy. The logic that marriage can be limited "to two people who want to have sexual relations" doesn't hold, he insisted; if gays are permitted to marry, "larger groups," like "two men and two women," must also be allowed to wed. Alito's puzzlingly nasty statements lingered for the remainder of the morning, vividly illustrating how ignorant the arguments against marriage equality can often be.
5. Scalia and Roberts read the news.
In a lively exchange, Justice Antonin Scalia—the court's fiercest opponent of constitutional gay rights—asked whether, if the court legalizes marriage equality, ministers may be forced to perform a civil same-sex marriage. (Two ministers in Idaho concocted a phony lawsuit to this effect in October.) Bonauto responded that the answer was obviously no. Scalia demanded that she explain how that could be true if same-sex marriage is a constitutional right. Justice Elena Kagan jumped in to note that rabbis can decline to marry Jews with gentiles, and Breyer reminded Scalia of the existence of the First Amendment. Eventually, Scalia appeared to concede that Bonauto was correct.
A short time later, Roberts asked Verrilli a similar question, pondering whether "a religious school that has married housing" would be required "to afford such housing to same-sex couples" if the court ruled in favor of marriage equality. Verrilli gently reminded Roberts that "these issues are going to arise no matter which way you decide this case," and that they arose before gay marriage even existed, when same-sex couples held "commitment ceremonies" for themselves. Roberts did not seem placated.
Bruce Jenner Comes Out as Transgender
After months of rumors and questionable tabloid covers, Bruce Jenner came out as transgender on ABC’s 20/20 Friday night, telling Diane Sawyer, “I’ve been thinking about this day forever.” Asked by Sawyer directly if he is a woman, Jenner replied, “Yes, for all intents and purposes, I am a woman.”
Sawyer said Jenner requested the media preserve male pronouns for the time being.
“My whole life has prepared me for this moment,” Jenner said, adding that he was apprehensive to come out because he didn’t want to “disappoint” people. Jenner, a ’70s-era Olympic gold medalist turned reality-star stepparent to the Kardashians, admirably shut down Sawyer’s suggestion that coming out may be a publicity ploy, and also made it clear his gender identity has nothing to do with his sexuality or marriages to women.
Although the much-hyped interview aired over two hours, Jenner unexpectedly revealed his transition at the top of the show. Outward will have more on Jenner and the interview this weekend.
Also in Slate:
A Dispatch From the Shifting, Porous Border Between Butch and Trans
Butch women aren’t men—except for the ones who transition to male, which happens just often enough to make things awkward for everyone involved. It’s awkward for fellow butches who feel strongly that they are not men, for trans men who seek to distinguish themselves from masculine women, and for butches whose understanding of themselves evolves in ways they hadn’t expected it to—each group challenges the self conception of the others. Many masculine women remain happily within the female gender for their entire lives and experience no discernable dysphoria. However, there are also butches who experience discomfort with their female gender or who seek to change their bodies to attain a more masculine appearance. The borders between butch women, masculine genderqueer people, and trans men are clearer in theory than in practice. In order to find out more about how people in these categories experience gender, I spoke with individuals from across the butch/trans spectrum, from female-identified butches to formerly butch-identifying trans men, and found commonalities, as well as differences, among them.
Shay Lima, 27, is tall and broad. We’re friends through my wife, who went to school with her. Shay has often been mistaken for male; she’s even been forcibly ejected from women’s bathrooms based on this misperception. At one party I attended, despite her having long hair and being dressed in female clothing at the time, she was mistaken for male by a partygoer who all but insisted her perception of Shay’s gender could not be wrong. Shay strongly identifies as a lesbian, and she doesn’t object to being called butch, although she’s never felt strongly drawn to that description.
The “Straight” Faces of Same-Sex Marriage
When the Supreme Court hears oral argument next Tuesday in the cases challenging state bans on same-sex marriage, the named plaintiff, a gentleman named Jim Obergefell, will in many ways seem familiar to the court. Like Edie Windsor, the plaintiff in the case two years ago in which the Supreme Court struck down the Defense of Marriage Act, Obergefell is white, professional, middle- to upper-class, and widowed. Of course, this is no coincidence.
Just like the choice of Windsor, the choice of Obergefell and other plaintiffs was part of a careful strategy on behalf of same-sex marriage movement attorneys to put forth and portray plaintiffs the justices could relate to and respect. By itself, this is not terribly surprising, nor necessarily problematic. Dating back at least to the civil rights movement and Brown v. Board of Education, conventional impact litigation wisdom has dictated that plaintiffs chosen to represent movements must be blemish-free—they must be respectable.
Ask a Homo: Steve or Steven?
Welcome back to Ask a Homo, a judgment-free zone where the gays of Outward answer questions about LGBTQ politics, culture, etiquette, language, and other queer conundrums. There's an old joke that goes, “It was Adam and Eve, not Adam and Steve!” Then there's the retort: “Of course not! It was Adam and Steven!” These silly lines got one viewer thinking about whether gay men actually have a preference for shorter or longer versions of their names. Here's J. Bryan Lowder (or should we say Bry?) with an answer.
If there are questions you’ve been dying to ask a member of the real rainbow coalition, this is your chance. Send your queries—for publication—to firstname.lastname@example.org, and please put “ASK A HOMO” in the subject line. Note that questions may be edited.
Other Questions Asked of Homos:
Why Are Gay People Always Getting Back With Their Exes?
Is Being Afraid to Be Thought Gay a Form of Homophobia?
Is My Daughter's Boyfriend Gay?
How can an openly gay man best support his closeted boyfriend?
How to get pro-gay kids to boycott anti-gay businesses?
Is It OK to Touch Guys in Gay Bars?
When does a lesbian lose her virginity?
Why are gays so critical of LGBTQ advocacy groups?
Is my co-worker transitioning?
Do gay men enjoy being catcalled?
How One of the Most Important Edits in U.S. History Paved the Way for Marriage Equality
Next Tuesday, April 28, the Supreme Court will hear oral argument in Obergefell v. Hodges, a blockbuster case addressing the issue of marriage equality. If the Supreme Court ultimately strikes down state laws prohibiting same-sex couples from marrying—as many commentators expect and as the Constitution commands—this date will surely go down as a milestone in LGBTQ rights history. But April 28 is already a critical date for the LGBTQ community—a forgotten anniversary, starring one of the most important Americans you’ve probably never heard of.
The constitutional case for marriage equality turns, in large measure, on the meaning of the 14th Amendment—including, in particular, its equal protection clause, which reads, “No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” This sweeping, universal language means what it says: It protects all persons from discrimination—whether black or white, woman or man, gay or heterosexual. Simply put, this includes gay men and lesbians challenging state laws that prohibit them from marrying the person of their choice.
“Would You Attend a Gay Wedding?” Is a Perfect Question for the GOP
How much do the current crop of Republican presidential candidates hate gay people? Enough to render their marriages invalid? Enough to take away their children? Enough to make their very existence illegal?
In previous years, various GOP candidates have answered “yes” to all of the above. This cycle, they’ve given no indication that their views have changed. But America’s certainly have: Around 61 percent of the population thinks same-sex marriage should be legal, up from 39 percent a decade ago. The same old policy questions about gay rights have grown stale, and the same old answers—no rights for gays, full stop—are now at once enervating and alarming. So the media has latched onto a new question: No matter your views on gay marriage, would you attend the wedding of a gay loved one?
This question has been pilloried by liberals and conservatives alike. “The dumbest kind of hypothetical,” said the National Journal’s Emma Roller. “Silly,” “bizarre,” and “frivolous,” said Vox’s German Lopez. “Irrelevant and inane,” suggested the American Prospect’s Paul Waldman. A “gotcha question,” said the Examiner’s Mark Whittington. These criticisms strike me as exceedingly shortsighted. The wedding question is cleverly designed to force candidates into taking a moral stand on what could otherwise be passed off as a dry political question. And, even more brilliantly, it forces candidates into a position of either callous honesty or brazen hypocrisy.
Ignore the Haters! The Prancing Elites Should Keep on Dancing.
At the beginning of The Prancing Elites Project, Oxygen’s new reality series about a black gay and gender-nonconforming dance team based in Mobile, Alabama, we’re reintroduced to the squad through footage of their controversial appearance in a local Christmas parade. Headlines and footage flash across the screen painting the five-member squad as disruptive and bringing havoc to the city. Even with community members being very dismissive, the Elites continue J-Setting down the street, smiling, prancing, and throwing their eight-counts.
Adrian Clemons, one of the Elites, said he felt like he has a disease where nobody wants to be around or near him. He sets the stage for the series: People are afraid of what they don’t know
The candid opening demonstrates that while the Elites may find joy through dance, their queerness forces them to face professional setbacks and personal hardships, all while doing the hard work of becoming more secure in their identities in a hostile environment. However, while the individual stories of the colorful and engaging cast will surely captivate audiences, the series’ larger argument is even more powerful: Everyone has the right to exist and be portrayed in the media—even if certain members of the community don’t want them to be.
Amy Schumer’s Transphobia-Encouraging Misstep
In the lead-up to Tuesday’s Season 3 premiere of Comedy Central’s Inside Amy Schumer t, critics have been competing to lavish the show—which features Schumer in a winning mix of sketch, stand-up, and interview formats—with the most glowing praise. And with good reason. Schumer is one of the funniest comedians working, and her particular gift for sending-up sexist ridiculousness (both from men and among women) is a joy to behold. My Slate colleague Amanda Hess identified the mechanics of this skill in her review: “Schumer’s sketches … resist the obvious target and find humor in surprise.”
Right on. So imagine my surprise when, in the premiere’s final interview segment called “Amy Goes Deep,” Schumer facilitated one of the most clumsy, contextually clueless, cringe-inducing exchanges on transgender issues I’ve ever witnessed—and this, after a period of trans emergence in the media during which someone of Schumer’s intelligence and curiosity should have learned to do better.
Pittsburgh-Area High School Students Organize “Anti-Gay Day”
Last Friday, April 17, the LGBTQ advocacy organization GLSEN sponsored its “Day of Silence,” an annual event that “brings attention to the anti-LGBT name-calling, bullying and harassment that is common in schools” by having queer students and their allies organize peaceful demonstrations on campuses, often involving self-imposed quiet for much of the day. Due to a scheduling conflict, the Gay-Straight Alliance at McGuffey High School in Claysville, Pennsylvania, chose to mark the occasion on Wednesday, April 15, instead, drawing between 30 and 50 participants and generating a generally supportive atmosphere, according to a participant who spoke with BuzzFeed News.
The mood changed on Thursday, when, according to a number of reports, a similar-sized group organized an “anti-gay day,” which they marked by wearing flannel, writing “Anti-Gay” on their bodies, posting Bible verses to queer students’ lockers and social media profiles, and, most troublingly, allegedly harassing “Day of Silence” participants both verbally and physically. There are also allegations of a “lynch list” containing the names of LGBTQ students, a noose being hung from a flag in one classroom, and, according to local outlet WPXI, plans for further clothing-based demonstrations all this week. While harassment reports are currently being investigated by the school district, many of the “anti-gay day” activities mentioned in these reports were documented on Instagram and other social media platforms.