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The particularly strange regression in yesterday's #SCOTUS hearing

by Jeremy Hooper

Having worked in and around, and commented on, the anti-LGBT versus LGBT "culture war" for over a decade, I've gone through many days when a tussle over my civil rights felt deeply offensive. Whether it's a legislative debate, public referendum, judicial hearing, political conference, or some other event where my family and our rights as American citizens are discussed as if they are frills to be decided by committee, at best, and threats to be derided as satanic, at the more familiar end, I've spent many evenings feeling that offensive sense of unease that LGBT people know all too well.

Screen Shot 2015-04-29 At 12.00.18 PmWhile there was some of that yesterday, the day of the United States Supreme Court's big marriage hearing, there something else that rose to the surface even more. Namely, it was a weird sense of regression. Like a time warp. A feeling that the questions the court (and particularly its conservative members) were raising to both sides were questions more befitting a marriage conversation in 2001 than a marriage conversation in 2015.

We live in an America that has had marriage equality for over a decade. We live in an American where nearly forty states, plus the nation's capital, grant civil marriage licenses to same-sex couples. We live in an America where, thanks to the same Supreme Court's actions, all married couples receive equal federal rights and benefits. We live in an America where consistent polling shows an ever-growing supermajority of citizens supporting equal rights (with those same polls showing a decrease in fervency, and increase in age, of the opposition). We live in an America where every body of government has picked apart and explored this topic, with the legitimacy of marriage equality coming out the better (and how!) for the debate. We live in an America where intellectuals, legal scholars, corporate leaders, medical associations, editorial boards, and rainmakers from all walks of life have come to a near consensus in their support for the demonstrable good that is the freedom to marry. We live in an America that has turned Modern Family, replete with gay weddings and gay parenting, into a consistent ratings and awards winner. We live in an America where virtually everyone knows someone who has entered, or who desperately wants to enter, into a same-sex union.

To hear some of the justices questions yesterday, you'd think none of that had happened. With their talk of marriage definitions and "millennia" and polygamy fears and questions Screen Shot 2015-04-29 At 12.00.29 Pmabout the effect on kids and theoretical stories of pastors who could be punished for not marrying same-sex couples even though none have anywhere same-sex marriage is legal (full transcripts here and here), it was as if the plaintiffs were the only people in America who had put this notion of same-sex marriage to any sort of test. Even though this very same group of nine has had the matter come before them in various ways over the past two years (and moved us toward more equality every time), at some points it sounded like they had just shown up late to the play and were asking the attorneys to fill in plot holes that the script had already and ably laid out in full.

When listening to the audio of the hearing, as someone who has been married for six legal years (and twelve years in total) with a kid and a life and a community where my basic freedoms of marriage and family are never called into question in any real way, I found myself aghast and confused more than I was offended. It seriously sounded like the stakes were at a level that could, if the court went against us, take away my rights or something. It was as if the side of inequality had a chance to reset the clock, if they said the right things in court. And I have to say, I didn't expect that. I knew that the Scalias and the Alitos of the world would ask questions I found demeaning, just as I knew the Thomases of the world would not say a damn thing. However, I didn't expect so many points to sound so much like an alternate reality, with far too much concession giving to the side that has won virtually nothing in any court in the past four or five years.

I know that much of the hearing is played for theatrics and that no one should ever read to much into the justices questions. And I remain firmly convinced that we will get full fifty-state equality, and perhaps even by a 6–3 margin. But I can't say I'll replay yesterday's audio for my kid someday and remember it as the day the court led us to greener pastures. Instead, it was a reminder of how much harder we seem to always have to work to prove our worth, even when we've jumped through SO MANY hoops to do so.

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