This is what I will remember about the atmosphere at the Supreme Court during the same-sex marriage cases: that it wasn’t terribly memorable. The place was relaxed. The Justices were attentive but unemotional. The audience was cheerful. It was a lot like most arguments before the Justices, except that every seat in the courtroom was taken.
The reason for the mellow vibe was unspoken but clear. Everyone knows that same-sex marriage is here to stay; indeed, it’s expanding throughout the country at a pace that few could have imagined just a few years ago. The Justices were not irrelevant to the process, but they weren’t central either. They knew that—and so did everyone else.
I don’t mean to diminish the significance of the issues in the Proposition 8 and DOMA cases. Edith Windsor, the highly appealing plaintiff in the DOMA case, illustrated in stark terms the stakes of that case. She had to pay $363,000 in inheritance taxes because DOMA, the 1996 law, forced the Internal Revenue Service to treat her late wife as a legal stranger. If Justice Anthony Kennedy was previewing his vote with his comments, then Windsor will likely get her money back—not because DOMA is a piece of legislative bigotry, but because Kennedy has a consuming affection for state’s rights. (In other words, he thinks that the states alone should define the meaning of marriage.)
Indirectly, the two most memorable moments in Wednesday’s argument made clear how much the world had changed—and why the Supreme Court was kind of a sideshow to what’s really going on in the country.
About midway through the argument, Paul Clement, who was representing the House Republicans and defending DOMA, was cruising along. He was portraying DOMA as almost a kind of housekeeping measure, designed to keep federal law consistent across all fifty states. As Clement told it, there was almost no ideological content to the law at all.
Then Justice Elena Kagan swiftly and elegantly lowered the boom on him. She said, “Well, is what happened in 1996—and I’m going to quote from the House Report here—is that ‘Congress decided … to express moral disapproval of homosexuality.’” A collective woo went through the audience. Kagan had the temerity to tell what everyone knew to be the truth—that DOMA was a bigoted law designed to humiliate and oppress gay people.
Clement, an eloquent advocate in oral arguments, was reduced to stammering like Ralph Kramden. He said that was not enough to invalidate the law: “Look, we are not going to strike down a statute just because a couple of legislators may have had an improper motive.” But suddenly it was clear. No one could deny that there was an improper motive—anti-gay prejudice—underlying DOMA.
But the second key moment illustrated the difference between 1996 and 2013. Toward the end of the argument, Roberts asked Roberta Kaplan, the lawyer for Windsor, “You don’t doubt that the lobby supporting the enactment of same sex-marriage laws in different states is politically powerful, do you?” Kaplan—somewhat improbably —denied it. Roberts fought back: “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”
But Roberts was right on both counts—that the gay-rights movement is politically powerful and many politicians have been lining up to support same-sex marriage. Roberts was raising the point to argue that gay people no longer needed the protection of the courts. They could take care of themselves in the rough and tumble of politics. In this Roberts was half right. Gay people now can take care of themselves—but they also suffer under the yoke of discriminatory laws like DOMA.
The larger point was clear: times have changed. Gay people deserve changes in the law—now. That’s why we have courts. But the extraordinary subtext of the two days of arguments was that everyone knew those changes were coming, with or without the Supreme Court. That’s why everyone could relax (sort of) in the courtroom. Everyone knew how this story ended.
Above: Same-sex marriage supporters demonstrate in front of the Supreme Court on Wednesday. Photograph by Jewel Samad/Getty.
[#image: /photos/5909519dc14b3c606c1038ea]Read our full coverage of gay marriage before the Supreme Court.
