Some of us are afraid to exhale. Same-sex marriage is before the Supreme Court.
Just as the election had the "swing-state factor," these two cases have a swing vote: Justice Anthony Kennedy. Justice Kennedy was nominated to the Supreme Court by President Ronald Reagan but has been on the progressive side of two key LGBTQ cases, Romer v. Evans and Lawrence v. Texas. Now, with the question of same-sex marriage before the Supreme Court, Justice Kennedy, with the right decision, could eclipse the likes of Barbra Streisand, Madonna and Lady Gaga as the greatest gilded eagle for gay equality ever known.
Propaganda-like amicus briefs from the anti-gay community seem to be papering the walls of the Supreme Court on a daily basis. The Westboro Baptist Church, the Republicans of the House of Representatives, the Catholic bishops... they all have one. Progressive briefs are due in March.
I am just a gay dad. We gay dads tend not to file amicus briefs. However, we do jot notes, make lists and write letters. Sometimes we invite people to dinner. I think that will tell him more than all the anti-gay briefs put together. So here's my open letter to Justice Kennedy:
Dear Justice Kennedy:
This is an invitation to dinner. I thought that would be the best way for you to decide how to vote on whether my family deserves the equal protections that other people's families enjoy.
If you come, you will meet my 10-year-old sons, who will likely impress you, given how personable, articulate, polite and bright they are. You might ask, as many people we meet do, if they are twins. The answer will be, "They are 'almost-twins': Their birthdays are four months apart." That will bring a "huh, come again?" look, and I will explain how I adopted them as babies from different drug-addicted birth mothers through foster care.
Many of the amicus briefs you've seen in these cases suggest that other families deserve legal protection over mine because those families were created more spontaneously or accidentally than the family of someone who went out to help children and save them from real danger. ("Marriage is ... inextricably linked to the objective biological fact that opposite-sex couples, and only such couples, are capable of creating new life together," says Dennis Hollinsworth.) I would just ask you to meet my sons, look them in they eyes and see their smiles before you decide whether the "procreation advantage" briefs are correct.
If you were to come to dinner with my family, you would also meet Jim. He is the man in my life. It wasn't until our relationship became serious that he met my sons, and now he has taken up running a lot of the day-to-day needs of my family and has been an incredible support. He and the boys have already established a terrific bond. You will be able to see by the way I look at him, and by the way my sons look at him, that we love him. Deeply.
Jim had a business life before he met me, as I did before meeting him. You and I can chat about how complicated blending all that can be, and what a terrific hardship it would be to each of us should the other die. Where opposite-gender couples have legal protections, we do not, and our attempt at blending our finances would fall apart, our pensions would be lost, and enormous taxes would be imposed on us. This would be the scenario even if our state allowed us to legally marry each other. If any of our biological next of kin were to interfere, then things could go badly very quickly.
Some have told you that we gays are politically powerful. Paul Clement claims, "Gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history." Around our dinner table we can discuss how it sure does not feel that way. On the sideboard you will see pictures of dear friends of mine who passed away from AIDS, a disease that ran rampant for years because, at the time, it was not politically defensible for the president of the United States -- the one who appointed you -- to say its name. We can try to name another health crisis in history that received such a lack of immediate action, but I don't think we will come up with one.
We can also talk about my relationship with Jim, and how, before I met him, millions of strangers voted for me not to be able to marry him. Neither of us has yet brought up marriage, but you will see by looking at us that one of us probably will want to bring it up in the near future. We are happy and love each other that much. However, even if one of us were to propose, he would need to ask millions of people for permission to marry his love. Somehow that does not make us or my kids feel particularly "politically powerful."
Republicans from the House of Representatives have asked you not to decide on the same-sex marriage issue as "a matter of sound social and political policy while the American people are so actively engaged in working through this issue for themselves." As I look across the table at the man I love, I would ask you to in fact decide on it so that he and I can work on our lives and our feelings for ourselves.
If you come to dinner, we can chat about how you also started in California and whether you are liking your home in McLean, Va. I would tell you how I envy you. You see, even if Jim and I were allowed to marry in California, we could not move to Virginia as you and your wife have done, because the legal protections we'd have in California would fly out the window, and without them our family arrangements would unravel. Even if we could marry in California, we would be under statewide house arrest, essentially. We do hope that you are enjoying your freedom to move from state to state and continue to be considered married wherever you happen to live.
We will probably then verify your taste in food and beverage, so that we can make any necessary last-minute changes in the serving of the meal. It is interesting how deeply ingrained our tastes are, in terms of what we are drawn to eat, what we desire and what our systems can tolerate. Those do not seem to be learned but something we were born with. Some people have tried to tell you that being gay is just an expression of chosen taste and behavior. "What lower courts have understood to be a homosexual 'orientation' is not a trait attributable from conception or birth. Rather, particularly as framed by Respondents here, it involves a species of conduct," states the Catholic Church in their brief. You will see me furrow my brow at such a suggestion, because every credible biologist states that sexual orientation is biologically based, as it is in most species of animals. I will also mutter under my breath, "Gee, I don't recall scientists declaring the discovery of the gene that makes one Catholic. Yet these bishops are crying that a pro-gay decision would impede on their religious freedom. If they have rights protecting their chosen religion, I should have rights protecting my innate nature."
You may hear my comment, and that will enhance our conversation as we serve the ham. As I cut the boys' meat and try to convince Jesse that he does actually like it but just forgot, I will mention that I am glad that you did not require a kosher meal. Some of our friends do, and serving ham to them would be a faux pas. Eating ham is a sin, according to their religious beliefs. However, they do not seem to feel a need to turn their personal belief into a federal law that would require everyone to avoid ham, nor do they think that because people eat ham, society as we know it is coming to an end.
I hope that over dessert, you will just sit back and take us all in. We are not perfect, but we are a family. We love and plan and live just like any other family. Jim and I do not want anything special; we just want what we have worked for our entire lives to go to the benefit of each other and our loved ones. We do not consider ourselves better because of how we came together, but we also do not consider ourselves any worse. You will see that my kids have been raised with standards just like kids in other families have, and with manners, and that they too have bedtimes that we hit like clockwork.
With that, we would get your things, and I would walk you out to your car. I would look at you and say, "Thank you, Justice Kennedy, for coming. We were honored to have you. We know that the future of our family rests in your hands. You have the power to make it devastatingly difficult. You can make it confusing and convoluted. Or you can do the right thing. Please, Justice Kennedy, please, please, do the right thing.
Be a rock star.