Sloshing toward justice

A 30-ish passerby couldn’t resist baiting them.

“How does it feel to be on the wrong side of history?” he called out.

“Jesus loves you,” a woman shouted back. She thrust a pamphlet at him. He didn’t take it. The colloquy slid downhill from there.

“You don’t care what Jesus said?” the woman asked.

“Not if he made people like you.”

“I’m sorry for you.”

“Your sign is upside down.”

“There’s spittle on your face.”

When the high court takes on an issue this big, a coast-to-coast ocean of passions sloshes right up to its cool marble facade. With plate tectonics shifting by the hour on gay marriage, the sloshing was epic last week, both inside and outside the court. 

California Lt. Gov. Gavin Newsom, mayor of San Francisco from 2004 to 2010, made his way through the crowd, telling reporters that same-sex marriage was no longer a left-right issue, or a secular-religious divide, but a momentous generational shift.

Vestments, clerical collars and crosses were as prominent as rainbow scarves, but the religious symbols cut both ways. Broderick Greer from Fort Worth, Texas, a seminarian at Virginia Theological Seminary in Alexandria, was fresh from a 7 a.m. interfaith service around the corner, at the Lutheran Church of the Reformation. After the service, about 300 people from dozens of faiths and denominations marched together from the service to the Supreme Court to support gay marriage.

“I hope this will be a continuation, like the president said, from Seneca Falls to Selma to Stonewall, and now we’re at the Supreme Court,” Greer said. 

By Tuesday morning, a group of Youngstown State University students from Ohio had already camped on the sidewalk for 18 hours to snag four of the hundred or so public seats for Wednesday’s oral arguments on the Defense of Marriage Act law denying federal benefits to state-recognized same-sex marriages. The previous night, they took turns sleeping for an hour in a nearby car, but looked happy.

“We have mint Oreos,” Sean Varsho said.

They were on moot court and the school newspaper and looked giddy at the history unfolding around them. Melissa Wasser was hoarse, not from camping in the cold, but from yelling earlier that morning at demonstrators from the Westboro Baptist Church of Topeka, Kansas, notorious for picketing everything from military funerals to Lady Gaga concerts. 

Wasser held a sign depicting her mom and dad, a biracial couple. “Their marriage would have been illegal before Loving v. Virginia,” she said, citing the 1967 Supreme Court case striking down laws against mixed-race marriages. “And it’s the same thing with these gay couples.”

Wasser’s classmate, James Toliver, said it was “one of the few examples we’re going to get in our lifetime to see a real test of the Equal Protection Clause in American jurisprudence.”

Before the Youngstown group finally made it into the courtroom the next morning, Varsho tweeted a “last word”: “remember, outside the court we have feelings of compassion&love. Inside, it’s about what the law says.”

The oral arguments over DOMA bore out Varsho’s tweet, at least at first. An hour of debate over a tangle of jurisdictional matters raised doubts that the court would even rule on the Equal Protection challenge, as Toliver and millions of others hoped.

“This natural urge must be put aside,” attorney Vicki Jackson argued. She wasn’t referring to gay marriage, but the impulse to “reach the merits of so significant an issue.”

The case was complicated by the Obama administration’s position. The Justice Department was enforcing DOMA, even though it found the law unconstitutional and declined to defend it in court. Instead of the solicitor general or some other executive type, a group of representatives from Congress was arguing on behalf of DOMA. Did the legislative group have standing to do that? Was there even a conflict? 

Edith Windsor, the 83-year-old woman challenging DOMA, had already won her case at the trial and appellate levels. After 40 years with her spouse, Thea Spyer, Windsor was ordered to pay a six-figure inheritance tax in New York because DOMA barred the feds from recognizing their Canadian marriage.

By taking the case to the Supremes, the administration was pushing for a final ruling, but it made for some strange, spiral arguments that caused Justice Anthony Kennedy to talk of “intellectual whiplash.”

“The U.S. is asking this Court to tell it to pay money,” Jackson told the court. “It’s not asking for relief.”

Justice Elena Kagan looked ready to brush aside the jurisdictional cobwebs and strike DOMA down.

“Whether the government is happy or sad to pay the $300,000, it’s still paying the $300,000,” Kagan said, calling it a “classic Article III injury” that would let the Supremes rule on the merits.

Chief Justice John Roberts sounded miffed at Obama, like a dad who had to explain the facts of life — gay life, yet — to a child after mom punted the question.

“I don’t see why he doesn’t have the courage of his convictions and execute not only the statute, but do it consistent with his view of the Constitution, rather than saying, ‘Oh, we’ll wait until the Supreme Court tells us we have no choice,’” he complained.

The justice with the putative swing vote, Anthony Kennedy, didn’t seem happy with feds telling states what marriage is.

“The question is whether or not the federal government, under our federalism scheme, has the authority to regulate marriage,” he said. At that remark, many eyebrows in the courtroom subtly twitched, as if to say, “Yep, it’s coming down.”

On this court, at least, the oral arguments on same-sex marriage suggested a gender gap more than a generational one. While Roberts and a sour-looking Justice Samuel Alito looked for neck-high rubber gloves to touch the merits of the case, Justice Ruth Bader Ginsburg, 80, calmly waded in and invoked the suffering DOMA wreaks on real people. The 1,100 federal laws affected by DOMA, she said, “touch every aspect of life. Your partner is sick. Social Security. I mean, it’s pervasive.” In a now-famous remark, Ginsburg called marriage without federal benefits “skim milk marriage.”

When attorney Paul Clement argued that DOMA gives “uniformity” to marriage law — and therefore has a constitutionally magic “rational basis” for staying on the books — Kagan got impatient. The uniformity, she said, is that the Feds have always recognized state marriages, whatever their flavor, at least until DOMA.

“Do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’ judgment was infected by dislike, by fear, by animus and so forth?” Kagan asked. 

Despite what Sean Varsho tweeted about keeping compassion outside the Court and law inside, the Supreme Court’s three female Justices — no strangers to pervasive discrimination — seemed to cling to the idea that there is a relation between the two. So did Breyer. Add Kennedy’s concerns about federal encroachment on the states’ marriage-defining turf, and you have the likely demise of DOMA.

But it’s far from a foregone conclusion. (The decision is expected in June.) The Supreme Court men’s club, with the exception of Breyer, didn’t seem the least bit bothered by cutting same-sex couples out of 1,100 federal laws. Quite the opposite, in fact. The air sucked out of the courtroom when, late in the morning, Roberts indulged in a digression about the “politically powerful” gay lobby. Whatever happens to DOMA, it seems we haven’t seen the last of that strange jiu-jitsu by which straight white males (Justice Clarence Thomas gets an honorary pass) manage to look beleaguered, even while sitting on the highest court in the land.

“As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts told Windsor’s lawyer, Roberta Kaplan, as if an inexplicable fad had swept the land and a raft of members of Congress, senators and an ex-president had started wearing their underwear on the outside, instead of exercising the courage of their convictions.