Behind the Scenes at the Marriage Arguments

Posted on April 29th, 2015 by Katherine Franke

By: Suzanne Goldberg

It was cold but clear this morning just after dawn outside the Supreme Court. If you have seen any of the photos circulating in social media, you can feel the optimistic mood of nearly everyone there – from the cheery dark-suited lawyers on the Supreme Court bar line to those on the line designated for the general public, some of whom had traveled across the country and slept out for several nights, with rainbow flags aloft, waiting for this morning to arrive.

Both lines wound from in front of the sunrise-reflected courthouse to a point well around the corner, hundreds of people in all. Also in the mix were loads of media – more than at any previous gay rights argument that I can remember, with reporters standing tall so they could be filmed with the Court as backdrop as they explained to nation what is at issue in the marriage cases about to be argued.

It was hugs aplenty among old friends who have worked together for so many years on lgbt rights cases. If totaled, the collective experience of movement lawyers, academics and law firm cooperating attorneys might have included as many years as the millennia some of the justices later invoked inside the courtroom when they talked about the lengthy history of “traditional” marriage.

Sprinkled into the bar line was a handful of lawyers who spend their time opposing marriage equality. One, who wound up sitting behind me in court, made a special point of saying hello. Shaking my hand, he recounted that he wasn’t doing so well these days given that their side was losing so many cases. As I told him, I really couldn’t bring myself to say that I was sorry for his experience, given that these losses were important victories for equality and rejections of laws that have caused substantial harm to lesbians and gay men, among others.

But while we were still outside, the adversaries of marriage equality made themselves known by marching around with a bullhorn and signs and t-shirts declaring the sinfulness of homosexuality. In one of their go-rounds, a longtime marriage equality advocate jumped into the middle of their lineup with her Freedom to Marry sign and a big smile, to the cheers of the rest of us.

Strikingly, though, the anti-equality protesters were very small in number – not even 10 in their contingent. That, in itself, seemed symbolic to me, as though opposition to marriage equality was now squarely on the fringes of society where it had, not terribly long ago, been part of the mainstream.

Around 8:30 a.m., just as everyone was almost starting to warm up with the sun, the marshals directed us into the courthouse. Through a metal detector, we moved onto another line where staff confirmed that we were all members of the Supreme Court bar.

I took a peek at my listing, which reminded me that I had first joined the Court’s bar exactly 20 years and two days earlier when I was sworn in by my father on the day of oral arguments in a case challenging the Boston St. Patrick’s Day Parade’s ban on gay people’s participation. In that case, the Court ultimately ruled unanimously against the gay plaintiffs. But its opinion offered a distinct shift in tone from Bowers v. Hardwick, with its vitriolic embrace of moral disapproval of gay people, to a respectful reinforcement that civil rights laws could indeed prohibit sexual orientation discrimination.

With our court admission cards in hand, we proceeded up the marble staircase, received instructions from another marshal – who reminded us, yet again, to be quiet in the working courthouse. Then a dash to the lockers to stash our electronic devices, through another metal detector, and into the still-empty courtroom.

During the next 45 minutes, waves of people filled the seats. First lawyers, then those from the public line, followed by row upon row of guests who had gotten tickets from a member of the Court or an elected official. The journalists and plaintiffs were among the last to enter the room as the large clock above the justices’ chairs inched toward 10 a.m. and the marshal’s sharp instruction to rise because the Court is now in session.

Following the brief swearing-in ceremony for new bar members, Chief Justice Roberts invited Mary Bonauto, the long-time lead lawyer of Gay and Lesbian Advocates and Defenders and a widely acknowledged architect of the marriage cases’ legal strategy, to begin. A few lines into her argument, Justice Ginsburg posed the first question, and for the next two-and-a-half hours, the justices took mostly rapid-fire turns posing their questions to the lawyers on both sides of the two questions for the day – first, whether the Constitution requires states to allow same-sex couples to marry, and second, whether the Constitution requires states to recognize the marriages entered by same-sex couples in other states.

The media is full of discussion about the argument, so for this post, I’ll skip ahead to the courthouse steps after it was all over. Now brilliantly sunny and warm, the sidewalk in front of the Court was filled with marriage equality supporters whose cheers for the large group of plaintiffs overwhelmed the few sign-bearing dissenters in their midst.

The lawyers and plaintiffs from the cases took turns sharing their comments in front of the media pool, which was even larger than earlier, while many others of us milled around to debrief, hug, and take even more photos against the backdrop of the courthouse’s gleaming marble.

As I left the courthouse toward lunch and more debriefing with friends, I was struck, again, by how much has changed in the nearly 25 years I’ve been involved with LGBT advocacy. Front of mind, too, was how grateful I am to be a part of this work and to know, first-hand, the deep dedication of colleagues, including those no longer with us. It is these colleagues and so many others who, in ways both public and private, have helped move this nation to the point where we find ourselves now – as one that not only hears but also increasingly and forthrightly embraces gay people’s claim to dignity and equality under law.

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