Op-ed: The Bigotry Isn't Over

Things are better since the Supreme Court ruled against gays in 1986's Bowers v. Hardwick, but nothing is perfect.

BY Victoria A. Brownworth

March 28 2013 12:01 PM ET

A March for Marriage, led by the antigay NOM and other organizations.

Like most queers in America, as the U.S. Supreme Court heard the first of two cases addressing marriage equality, I was stoked. To paraphrase a chant from my ACT UP days, the whole world was watching. Facebook and Twitter were alive with #marriageequality, #SCOTUS, and #DOMA. There was this rare crazy thing happening: Queers were the news. Everything else had receded into the background. It was exhilarating.

The atmosphere of change was everywhere. You could feel the tectonic shift in the culture: either you were on the side of history or you weren’t.

The usual suspects weren’t, of course. There was a March for Marriage led by the anti-marriage equality bigots, NOM and their ilk. There were a handful of prominent speakers talking for that side — a series of black clergymen, the Catholic archbishop of San Francisco, who apparently didn’t know that Pope Francis argued for civil unions in Argentina.

And then there was our side. The queer couples, the kids of queer parents, the straight allies. Those straight allies, however, now include President Obama, Vice President Biden, former secretary of State Hillary Clinton, former vice president Dick Cheney and former first lady Laura Bush, among others.

History was being made.

Inside the Supreme Court, however — that’s where it was all happening.

I knew what that was like, because I had covered the first big Supreme Court case involving LGBT rights, Bowers v. Hardwick in 1986. I was a young reporter covering the Supreme Court. When I arrived in the briefing room, prior to the oral arguments, I could see I was the youngest person in the room and probably the only out queer, since I was the first out lesbian in America writing for a daily newspaper.

It was awesome.

The place where the press sits is to the left of the panel of justices. It’s a small space, an alcove in the marble majesty of the court. Deep red velvet curtains surround the press area, held back by thick silk cords of the same dark red color.

I had never seen the justices in person before that day. Only one of the current justices was on the bench for Bowers v. Hardwick, Justice Antonin Scalia. He asked several questions during the oral arguments that day, questions which I thought argued for individual liberty and thus in favor of Hardwick, not the state of Georgia.

Some of the court’s great jurists were on the bench. Thurgood Marshall, the first African-American Supreme Court justice. William Brennan, the justice who tried to strike down the death penalty. Harry Blackmun, the author of Roe v. Wade, the most defining ruling of my lifetime. Sandra Day O’Connor, the court’s first female jurist.

It was a thrilling experience. Laurence Tribe, constitutional scholar, professor at Harvard, and one of the great liberal lawyers in the country, was arguing for Hardwick. (Tribe has since taught both President Obama and current chief justice, John Roberts). That case was one of the first he’d argued before the high court; he’s since argued more than 40.

I left the court that day in a state of both excitement and agitation. I had to file my story by deadline, but I also had to process what had just happened. I was an out lesbian, writing for a daily newspaper, and I was covering the most important case for queers in American jurisprudence. How the court ruled would either strike down sodomy laws in Georgia and across the nation or ... not.

I was back at the court for the ruling several months later. It was an incredibly hot day. The court stands sunlit, no trees shading justice. Everything is laid bare before the court, and on that day, in a tight 5-4 decision, queers lost.

Irony is an inevitable part of jurisprudence I have learned over years of covering myriad trials. The majority opinion — one of the most vitriolic in history — was authored by Justice Byron White, a Democrat who had been appointed by John F. Kennedy. The dissenting opinion was authored by Justice Harry Blackmun, a Republican, who had been appointed by Richard Nixon.

As we members of the press stood in the broiling summer sun, Justice Blackmun came outside to speak to us. The then-78-year-old Blackmun was visibly angry. The decision, he said, was wrong. He stated, "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."

When I had the privilege of speaking with Justice Blackmun, he was succinct: The court was wrong on Bowers v. Hardwick. The sodomy laws were being applied specifically to gay men and lesbians, and they were, regardless, an invasion of privacy. Blackmun also could not understand how when the court had already decided Roe v. Wade more than a decade earlier, which defined individual rights over one’s body, refute that context with this new ruling in Hardwick.

In 2003 the court sided with Blackmun, finally, when it overturned sodomy laws in Lawrence v. Texas. Justice Anthony Kennedy — again a conservative — wrote the opinion and said the court had gotten it wrong with Hardwick. Blackmun was vindicated.

But I remember the devastation of that 1986 ruling. That a justice of the high court was as upset as I was seemed cold comfort on that blazingly hot day.

As the court heard the DOMA cases, Hardwick felt like a lifetime ago. In terms of societal shifts, the 27 years between that case and these was indeed a lifetime. A lifetime in which an entire generation of kids has grown up — my nephew and nieces among them — knowing out LGBT people and thinking marriage equality is — or should be — normal. My partner’s and my students (we both teach college) were all over Facebook posting the red equality sign. Hundreds of them, almost none of them actual queers. That how much things have changed.

And yet ... that’s outside the court, not inside. So I worry about the DOMA cases. Because the elation of the past few days has been heady. Seeing Edie Windsor talking to a crowd outside the court, awe-inspiring. Yet I know firsthand what can happen. Listening to the questions asked by the more liberal members of the court, particularly Justice Elena Kagan wondering if DOMA was predicated on simple and outrageous congressional bias and Justice Ruth Bader Ginsburg calling same-sex marriage without federal protections a "skim milk" version of the marriage protections heterosexuals enjoy, I am reminded of what I wrote after the arguments in Hardwick: that the court would definitely vote in favor of Hardwick and against Bowers.

Will that history repeat itself now?

My fear that this will happen again was bolstered Tuesday night when I turned in my newspaper column. (I write a column on politics for a local mainstream weekly.) My editor told me he would not print it. We argued for over an hour, but he was adamant.

I had not realized up to that point that he was antigay and against marriage equality. Living in the second-largest city on the East Coast, I had forgotten that there were still so many people who hold moral — like my editor stated — proscriptions against LGBT people and their civil rights.

I live surrounded by states where same-sex marriage is legal. But my state, Pennsylvania, has a specific law against same-sex marriage, and my Democratic senator, Bob Casey, is one of the few Democratic senators against marriage equality.

And so with the other queers in America, I will wait till another blazingly hot day for the court to offer its judgment on Prop. 8 and DOMA. I will hope, like I did in 1986.

What I know now, however, is that regardless of what the court decides, things changed this week throughout the country. My editor, the conservative justices, the black clergy, the Catholic archbishops and NOM members out protesting in front of the court — they are all wrong. They are as wrong as the people who spit on black students in 1954 after the court ruled on segregation in Brown v. Topeka Board of Education and they are as wrong as the court was in 1986 with Bowers v. Hardwick. It took the court 17 years to recognize its mistake with Hardwick, but it did recognize it and correct it.

No matter what, love stories like that of Edie Windsor and Thea Spyer will supersede whatever the courts decide. If they won’t grant us the justice we deserve, we will access it another way. So maybe, just maybe, this time the court will realize that history will always move forward — with or without them. And they’ll get it right the first time.



VICTORIA A. BROWNWORTH is a Pulitzer Prize–nominated journalist. She is the author and editor of more than 30 books. She lives in Philadelphia with her partner of 15 years. Follow her at @VABVOX

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