Toward the end of February, I had the opportunity to attend a performance of The Laramie Project cycle at the Brooklyn Academy of Music. From mid-afternoon to late evening that Saturday, I sat in the audience scribbling notes in the dark on a pad of paper as I watched a marathon performance of The Laramie Project and The Laramie Project: Ten Years Later, two provocative, experimental plays by director Moisés Kaufman and his Tectonic Theater Project that deal with the aftermath of the murder of Matthew Shepard.
Shepard, who in 1998 was beaten and left to die tied to a fence in Laramie, Wyo., has become a symbol; his story is a lesson about bigotry and of the challenges faced by young LGBT Americans who live in socially conservative states where being gay is seen as different and often threatening. Matthew Shepard's mother Judy is now a fierce advocate, and her activism helped lead to the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which President Obama signed in 2009 and which protects LGBT Americans who have been the victims of hate crimes.
Kaufman and the other members of Tectonic developed The Laramie Project from a series of interviews they conducted in Laramie during the aftermath of Matthew's death and the journal entries they wrote while visiting the town. Sitting in the dark theater, I was both deeply moved and deeply troubled, yet when I went back to look at the pages of notes I had taken, I was at a loss, filled with too many thoughts and struggling to bring them together into some cohesive argument. I put them away in my desk, promising to myself that I would get around to writing a piece on the play once I could process what I had experienced.
This week, as I sat in the press gallery of the Supreme Court listening to the oral arguments in two cases that could decide the constitutionality of Proposition 8, which bans marriage equality in California, and the federal Defense of Marriage Act (DOMA), which bars same-sex couples from federal marital benefits, I couldn't help but be reminded of that evening at BAM. Here I was again, furiously jotting down notes, observing what is in many ways a performance, hoping that in the end I would be able to pull together some meaning out of the multiplicity of legal arguments that were being presented.
Supporters of marriage equality went into last week with high hopes that 2013 could be the year that Americans in all 50 states would be free to marry, regardless of the gender of their partner, and free to have those marriages recognized by the federal government. Those hopes were dimmed a bit after Tuesday's and Wednesday's oral arguments, which featured a court skeptical of DOMA but wary of extending equal marriage rights to those states that currently ban them. At this point it seems that after the court rules by the end of June, there could be marriage equality again in California, and DOMA would be gone. But that would still leave LGBT Americans in states without equal marriage rights in the lurch -- Americans like Matthew Shepard, were he still alive and living in Wyoming today.
Just about two months ago the Wyoming legislature considered bills that would legalize marriage equality, enact domestic partnerships and provide employment discrimination protections based on sexual orientation and gender identity. Although the domestic partnership bill passed a House committee and the nondiscrimination bill passed a Senate committee, both with bipartisan support, and both firsts for the state, the two measures failed when they came up for full floor votes. In Wyoming, nearly 15 years after Matthew Shepard died, LGBT Wyomingites still have next to no legal rights under their state's laws.
During oral arguments at the Supreme Court, Justice Ruth Bader Ginsburg said that DOMA essentially creates two types of marriage in the United States, which she called "the full marriage, and then this sort of skim milk marriage." But she also went further, saying that the federal benefits of marriage are "pervasive" and that they "touch every aspect of life." When considering a marriage that provides no federal rights, she mused, one might ask, "What kind of marriage is this?"
Justice Ginsburg is touching on something deeply important here, and her point underscores an element of the marriage equality discussion that is too often overlooked. DOMA doesn't just denigrate the marriages of same-sex couples on the days when it blocks a gay couple from benefits like Social Security or hospital visitation rights, or on tax day, when they have to file separate federal returns. It denigrates these marriages every day, because marriage affects these couples' lives every day. To look at it from the other direction, a married couple isn't just married on days when their marriage comes into play for some specific reason; they're married every day.
This brings me back, in a way, to Matthew Shepard. Last week the Supreme Court appeared ready to punt on the central question of the constitutionality of state-based marriage equality bans, preferring instead to let the democratic process in individual states sort itself out. This wait-and-see approach may have both judicial and political wisdom in it, and it may be less daunting for a young gay man like me, a California native who lives in New York and sees marriage equality coming back to his home state either this year, through the action of the Supreme Court, or next year, through a ballot initiative that overturns Prop 8.
But it is a gross disservice to the gay, lesbian, bisexual and transgender Americans who live in states where wait-and-see could mean five, 10 or 50 years before they are treated equally under the law. Matthew Shepard should never have lived a life that ended the way his did because he was born in a state with socially conservative views.
It's not just that equality cannot and should never wait for majority support. Even more importantly, laws that thwart equal treatment under the law and thus create pain in the minds and hearts of those against whom they discriminate (even if these laws were not passed out of an explicit desire to discriminate) actively harm our nation and our LGBT brothers and sisters every day they're on the books.
These laws are bad for the heart and soul of our country. One of the central reasons we have courts is to show us that they do -- and sometimes, the courts must do so before we are ready to admit it.