By Katie Watson
The energy outside the Supreme Court Tuesday morning was electric, and – ignoring possible frostbite – I was happy. I felt so fortunate to have tuned in to the Prop 8 case back in 2009, and to have assisted in the CSE-related brief at the district level, then attended the trial in San Francisco, and now seeing familiar faces in Washington D.C.
The line wound its way in to the courthouse, but I missed the cut-off for sitting in the courtroom and found myself in the lawyers’ lounge instead. Those in the lounge were clearly rooting for the queer couples. The bell tolled, the room fell silent, and we all leaned forward to listen to the arguments.
I perked up when Ginsburg slapped down Yes-on-8’s reliance on a lousy case and nearly danced when Sotomayor cornered that advocate around why LGBT folks deserve legal protections. A high point was Kennedy’s cite to a brief concerning kids with LGBT parents – a group to which I belong – and the importance of our voices.
Next, Ted Olson performed his craft, poetically capturing the essence of the case, standing his ground against Scalia, deftly distinguishing polygamy from same sex marriage when questioned, and concluding powerfully that the history of our Constitution is to extend to protect people once ignored and excluded.
Then, the Department of Justice argued their stance and my mood changed. The Administration took a decidedly “wait and see” approach which essentially ignores LGBT folks in states where there are few safeguards against unjust discrimination in home, job, or health. Breyer highlighted this, noting that federal legal protections seem more necessary in states that have zero LGBT protections than in California. A low point was Alito stating that same sex marriage is newer than cell phones, apparently advocating for states to be able to conduct the social experiment of permitting gays to marry. Committed same sex couples have been around since time immemorial. Scalia was simply wrong to say that studies are inconclusive about possible harm to kids being raised by LGBT parents. Olson and team did an incredible job loading up the record with conclusive and favorable studies. Including loving gay couples in the framework of marriage hurts no one.
As a gay person, an attorney, and a citizen, I want the Court to declare that sexual orientation is a protected class. Where’s the rocket science – or the constitutional gray area – in that? I appreciate how far this movement has come and yet I also feel impatient. What about granting protections in employment laws, housing laws, and other day-to-day concerns of bias? To settle these issues, we will have many more days in federal court. Perhaps one of these cases will come from a Southern state.
Kathryn Watson is an attorney in Washington DC, where she represents community health centers. She is on CSE’s board of directors, as well as our volunteer legal team.
