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From Skim Milk to Harvey Milk: How Our Community Made History at Last Week’s Supreme Court Arguments

Whether you marched in San Francisco or elsewhere around the country, or traveled to Washington, DC, for the U.S. Supreme Court’s hearings in the marriage equality cases, we have all just participated in history in the making. After going to Washington, we feel more inspired than ever about our community’s work for full LGBTIQ equality. At the Supreme Court, people camped out for days, even enduring a rare spring snowstorm, in order to get seats inside the courthouse. Outside the court, people gathered from all across the country and overseas to bear witness and to put a human face on the issue. Before speaking at the rally on the Supreme Court steps, we met people who had traveled from places as diverse as Mississippi, Hong Kong, Vermont and, of course, California to participate in the historic occasion. Lesbian and gay couples and their families, allies, clergy, and people from every part of our diverse LGBTIQ community came out to stand together before the Court. Just as the California Supreme Court Justices were moved by the 2004 weddings at San Francisco City Hall taking place right outside their chambers, we hope that the Justices of the U.S. Supreme Court are moved by our collective voices. Ultimately, we will succeed at the Court to the extent the Court recognizes our common humanity, through decades of millions of LGBTIQ people coming out and speaking the truth of their lives. The human face of our community was reflected meaningfully in comments several Justices made during the oral arguments. For instance, Justice Ruth Bader Ginsberg explained how the misnamed “Defense of Marriage Act” (DOMA) deprives lesbian and gay couples of over 1,100 rights and protections under federal law, affecting “every aspect” of our lives. She delivered perhaps the most memorable line of the hearings when she concluded that heterosexual couples have “full marriage,” while same-sex couples are consigned to “skim milk marriage.” Justice Ginsberg further explained that when married same-sex couples can file “no joint [tax] return, [receive] no marital deduction [for estate tax purposes, get] no Social Security benefits; [and when] your spouse is very sick [and] you can’t get leave … one might well ask, what kind of marriage is this?” Justice Elena Kagan noted how DOMA did something that had “really never been done before,” when it targeted an entire class of legally married people to deny them rights under federal law. She cut to the chase when she noted the blatantly anti-gay intent of DOMA, quoting the House of Representatives Report that stated that one of DOMA’s purposes was “to express moral disapproval of homosexuality.” Justice Kagan also shredded the Prop. 8 attorney’s argument that the ability to procreate forms the legal basis for marriage. Questioning the attorney whether his argument would justify a hypothetical law prohibiting two heterosexuals over the age of 55 from marrying, Justice Kagan explained to the seemingly befuddled attorney: “I can just assure you [that] if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.” The procreation argument is a particularly curious one to make to this Court, given that both of Chief Justice John Roberts’ children are adopted. Justice Anthony Kennedy also evidenced intimate familiarity with lesbian and gay families when he spoke of how Prop. 8’s denying the freedom to marry to same-sex couples caused an “immediate … injury” to the approximately “40,000 children in California … that live with same-sex parents, and [who] want their parents to have full recognition and full status.” Justice Kennedy spoke of how “important” the “voice of those children is … in this case.” But other comments the Justices made at the hearings underscore how “skim milk” is not the only “milk” pertinent to these cases. It is Harvey Milk’s call for all of us to come out and live our lives openly at every opportunity that is ultimately the key to our success at the Court. Two of Justice Kennedy’s other comments at the arguments particularly highlight the importance of the Justices being aware of LGBTIQ people’s lives and our loving relationships. In apparently evaluating the appropriateness of a nationwide decision on the freedom to marry in all 50 states, Justice Kennedy expressed concern regarding what he believed to be the recent nature of sociological evidence about marriage for same-sex couples and their families: “We have five years of information to weigh against 2,000 years of history or more.” He later told plaintiffs’ attorney in the Prop. 8 case Ted Olson that “the problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters,” which may lead to “a wonderful destination,” or maybe “a cliff.” Justice Kennedy has written the two landmark gay rights cases in the history of the Court, but his comments point to how critical the Justices’ understanding the truth of our lives is to our achieving full liberty and equality under the law. Of course, the truth is that the Court would not be entering “uncharted waters” if it ruled that LGBTIQ people, just like everyone else, have the freedom to marry under the Constitution. LGBTIQ people have been around for well over 2,000 years – indeed we’ve always been around – and we have had loving, committed relationships for centuries and have long been raising children. Our lives and history have already shown that same-sex love, relationships, and families are “a wonderful destination.” For years, people were unable to live their lives openly because of obvious discrimination, threats to their safety and well being, and lack of social acceptance and support. What’s new is that in recent decades we have been able to live our lives openly because of the bravery of so many people who have come out and refused to live a lie. Coming out has enabled us to advocate for our full equality and inclusion. Indeed, recent polling results show 81 percent support for marriage equality among 18-29 year olds. Perhaps most importantly, the Court has never demanded sociological evidence of the societal value of heterosexual couples’ marrying as a prerequisite for heterosexuals having the Constitutional right to marry. The reality is that people – both heterosexual and homosexual – have loving, committed relationships, and many of these couples have children. For those couples who chose to marry, marriage can provide dignity, support, recognition, and protection for their families. The freedom to marry should be a constitutional right of every American without exception as part of our freedom to define ourselves and pursue happiness in our lives — not something to which we must prove we are entitled. As Harvey Milk said over 30 years ago: “All men are created equal. No matter how hard they try, they can never erase those words. That is what America is about.” And as President Barack Obama proclaimed during his inaugural address just two and half months ago: “[I]f we are truly created equal, then surely the love we commit to one another must be equal, as well.” No one knows after oral argument how the Supreme Court will ultimately rule in any case, and the questions the Justices asked during the arguments could be interpreted in a variety of ways. But as we await the high court’s ruling, likely to be announced the last week of Pride Month, the way our community came together last week to stand up for itself both inside the courtroom and across the nation greatly inspires us as we continue on the road from “skim milk marriages” to full LGBTIQ equality. We are filled with perhaps Harvey Milk’s favorite word: hope. By MEUSA Director of Legal & Policy John Lewis and MEUSA National Media Director Stuart Gaffney This article originally appeared in SF Bay Times, April 4, 2013:

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