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The Importance of the Supreme Court Cases in Unexpected Places

It was perhaps one of the last things we thought we’d hear in a gay bar in the heart of the Castro. But at a recent Friday evening happy hour at Hi Tops, we saw two attractive young men eagerly approaching each other, and when we overheard their greeting to each other it went something like this: “Did you get your biography in yet? Yes, we just did it today! That’s great – so did we!  We’re so excited! Which adoption agency are you using…?” Definitely a sign of the times -- on a Friday night in a gay bar in the Castro, among other things, gay couples were discussing their hopes and dreams for having kids and raising families. And we were even more surprised when we heard the two men remark that gay male couples tend to receive babies through adoption more quickly than straight couples. We started thinking about the Proposition 8 case before the U.S. Supreme Court. If it’s true that many birth mothers who put their kids up for adoption actually prefer gay men to raise their children, that would cut an even wider hole through the Prop. 8 proponents’ already flimsy argument to the Court that only straight people should be able to marry because they need an incentive to marry if a woman becomes “accidentally” pregnant. If anything, the opposite would hold true: Surely gay couples should be able to marry if single pregnant women are choosing them to adopt their children. It reminded us of a moment a few years ago in one of the marriage equality court hearings when a judge pointed out that social science research suggested that lesbian couples make the best parents. San Francisco Chief Deputy City Attorney Terry Stewart had to explain to the court that our argument was not that lesbian couples were better parents than straight couples, but that no person should face discrimination based on sexual orientation in marriage or child rearing. Indeed, our core argument in the Prop. 8 case is that all Americans, regardless of sexual orientation or any other external factor, should have the freedom to marry the person they love. The conversation we unexpectedly overheard at Hi Tops is further testament to the fact that same-sex couples are raising children and should have the opportunity for the same recognition and protection for their families that everyone else has. During an oral argument in the Prop. 8 case, Justice Anthony Kennedy put it this way:  “[t]here are some 40,000 children in California … that live with same-sex parents, and … want their parents to have full recognition and full status.” He went on to speak about the “immediate injury” these children face when their parents are denied the freedom to marry and the importance of these children’s “voice” to the case.  We hope this reasoning prevails at the Supreme Court and that couples at Hi Tops and all across California and the nation soon have the freedom to marry. The critical importance of the Supreme Court case challenging the misnamed “Defense of Marriage Act” (DOMA) was also very much on our minds last week. We watched as Democratic Senate Judiciary Committee members, who have expressed their support for marriage equality, gave in to Republican Senators who oppose equality and cut same-sex bi-national couples out of immigration reform legislation. In the face of relentless Republican opposition, California Democratic Senator Dianne Feinstein, a sponsor of the legislation to overturn DOMA, “implored” her colleagues on the Senate Judiciary Committee not to support the amendment that protected bi-national same-sex couples. New York Senator Charles Schumer, another marriage equality supporter, stated that lesbian and gay bi-national couples face “rank discrimination,” but in the end voted to exclude them from the bill in the name of compromise. The issue of whether the federal courts should apply “heightened scrutiny” to laws that disadvantage lesbian and gay people is one of the key issues before the Supreme Court in the DOMA case, and the question of whether lesbian and gay people have sufficient political power to protect themselves in the legislative arena without the aid of the courts is one of the questions the Court is considering in making that determination. At the Supreme Court oral argument in the DOMA case, Chief Justice Roberts chided our side, suggesting that the Court need not consider sexual orientation a protected class under the Constitution, because “as far as I can tell, political figures are falling over themselves to endorse” marriage equality. To the contrary last week, United States Senators were falling on their swords not to protect bi-national same-sex couples from unspeakable harm to their families. The Senators’ abandoning the cause of same-sex bi-national couples highlights as clearly as ever that the Supreme Court must assume its role in our constitutional democracy to protect the rights and lives of minorities when the legislature refuses to do so -- and thus overturn DOMA. Finally, we were struck by the unexpected importance of the Supreme Court arguments to another recent major gay news story:  NBA player Jason Collins’ coming out. In his Sports Illustrated coming out essay, Collins reported, “The strain of hiding my sexuality became almost unbearable in March, when the U.S. Supreme Court heard arguments for and against same-sex marriage. Less than three miles from my apartment, nine jurists argued about my happiness and my future. Here was my chance to be heard, and I couldn’t say a thing.” We could feel the pain of isolation and powerlessness in Collin’s words because we had experienced such things in our own lives many years ago. We are very happy that Collins has found his own voice now and is using it to speak out for equality. As we enter Pride month, the impact of the Supreme Court hearings on Collins reminds us yet again of the importance of the literally millions of LGBTIQ people who have come out and spoken the truth of their lives to their friends and family and to our nation. Many thousands of our community appeared at rallies in Washington DC and across the nation when the Supreme Court hearings took place; many thousands will come out at similar events across the country the day the Court issues its decisions. Bi-national couples stood up boldly for themselves around the Judiciary Committee vote last week -- and have not given up.  Jason Collins’ coming out illuminates how interconnected our lives and stories are. As the day the Supreme Court announces its decisions approaches (likely during the second half of June), we see the importance of the cases in many aspects of the lives of those around us. And each and every one of our coming out stories makes the strongest case before the Court. By MEUSA Director of Legal & Policy John Lewis and MEUSA National Media Director Stuart Gaffney This article originally appeared in SF Bay Times, May 30, 2013:

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