As a gay man lawfully married to another man in 2012 under District of Columbia law, I eagerly await the day when all Americans will be able to enjoy the same privilege I do — to marry the spouse of their choosing without regard to that spouse’s gender.
As an experienced U.S. Supreme Court advocate, however, I am equally eager to see only the best arguments advanced in support of recognition of a nationwide constitutional right to marriage equality. By and large, experience has made me an idealist — not a cynic — with regard to the Supreme Court. I cling to the belief that there is such a thing as law — that it’s not just politics in disguise and that the justices work hard to ascertain the law and to do what is legally right, not just what accords with their policy preferences. Even so, I am legal realist enough to agree with what Judge Richard Posner asserted in his 2008 book “How Judges Think”: There is a “space” within which judges must make choices that are not dictated by the law. Within that space, various factors, including policy considerations and the judges’ own life experiences, come into play. The Supreme Court’s most recent case on marriage equality, United States v. Windsor, fell precisely within that space. As of 2013, asking the justices to strike down the part of the federal Defense of Marriage Act (DOMA) that forbade federal recognition of state-sanctioned same-sex marriages was asking a lot. A simultaneously pending case, Brown v. Hollingsworth, gave the justices an opportunity to go much further and construe the equal-protection clause, right then, to mandate nationwide recognition of marriage equality, even by resistant states.
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