When I finally got Marcus on the line, he sounded down. He had been expecting my call. But instead of walking me through a breakup tale, he revealed something far more dire.
Around the time of AFER’s win in federal district court, Marcus had begun peeing blood. Embarrassed that it might be an STD, he ignored the symptoms. Now a student instead of an employee, Marcus had no medical insurance for the first time in his life, and in a country and state with no decent public health care, this meant that when he could no longer ignore the pain and blood, he was forced to accept a cruddy free clinic’s false STD diagnosis and ineffective antibiotics. When the pills failed, he chose to bear the pain until it became impossible to urinate.
By the time my big brother had waited his turn for medical care in an endless line of folks with no insurance, the tumor doctors found filled 75 percent of his bladder. When it was finally removed over two painful procedures that scraped it loose with a wire and dragged it out through his urethra, the doctors claimed the growth was nothing to worry about.
Within months, the tumor was back: bigger, bloodier, and more painful. When he finally told our mom, she had immediately put down a credit card to get Marco in to see a proper doctor. Only thanks to our mom plunging herself into debt she could never repay on a retirement salary did Marcus learn the truth: he had a fast-growing, aggressive cancer in his bladder, twice misdiagnosed by a failing health care system—and now it had spread to his prostate. He had wanted an education, a brighter future. His dedication to that goal had left him uninsured, and barred from good care. Now what had likely been a treatable condition was life-or-death.
The only feasible option was to completely remove his bladder, rebuild a new one from a piece of his intestine, and take out his prostate. If it turned out the nerves in and around his prostate also had to go, this would likely spell the end of the sex life Marcus had just begun to explore. It was an aggressive, risky surgery that, if unsuccessful, would result in my brother’s having no bladder at all—just a tube running from his gut out the side of his body and down into a plastic bag that would hang off of him for the rest of his life.
During that phone call, I heard my very tough big brother legitimately terrified for the first time. “Why now, bro? I’m finally figuring shit out.” I had no good answer for that, because there was none. This seemed senseless and cruel to me too.
I immediately flew to Michigan, where I met my mom at the airport. We sat by Marcus’s side before his surgery. Marcus was busy blaming himself for this whole mess, and now the trauma he was causing my mom, who was in such a frail state herself. Marcus’s doctor believed that the chemicals Marcus had fed his body willingly, and those he’d been exposed to at the Sears Auto Center, could have contributed to this cancer. If he had just drunk less, smoked less, partied less, gotten a decent job…“Fucking Sears, man. I’m gonna have a piss bag hanging out of my gut and no boners the rest of my life because of fucking Sears Auto Center?!”
“Watch your language, Marco!” our mom snapped back instinctively.
“Sorry, Mom.”
She took his weakened hand in hers and reconsidered. “No. You’ve got nothing to be sorry for, my baby. You just ‘f-ing’ get better for me.” She couldn’t say the swear word, but this was as close as I had ever heard her get, and her sentiment was clear. It was his turn to kick cancer’s ass just like she had, and he was free to do that however he liked.
After we kissed and hugged him, the nurses took my big brother into surgery. He gave my mom two big thumbs up, and when she wasn’t looking, he opened his mouth wide, stuck his tongue out like Ozzy Osbourne, and flipped me off with both middle fingers. It was his way of saying, “I fucking love you, bro!”
I sat with my mom in the waiting room. As luck would have it, New York State passed their Marriage Equality Act that same day. Now all New Yorkers could get married and enjoy their state’s marriage benefits and protections—but federal benefits would still be out of reach for them. That would take something like a sweeping federal court decision in a case like ours. Still, the scenes coming in from New York City on CNN were jubilant, a reminder of our own celebrations months earlier.
But as I sat in that waiting room watching CNN, a brand-new concern settled in: that perhaps our case was taking too long to get to the Supreme Court. I began to wonder how many of those who first rose up and fought for gay liberation at the Stonewall Inn in Manhattan forty-two years earlier hadn’t lived to see this day of freedom and celebration in their own state…and by extension, how many more of us today wouldn’t live to see full federal marriage equality in our lifetimes.
When Marcus emerged from surgery, there was blessedly no plastic “piss bag” hanging off his body. The doctor had managed to build a new bladder out of Marcus’s intestine and felt confident he had gotten all of the cancer out without having to remove all of the nerves in Marcus’s prostate.
As he struggled for lucidity, this concern was Marcus’s prime post-surgery query: “Will I be able to get a boner again, doc?”
“Well…not right away,” the doctor replied, a bit discomfited by this line of questioning in front of our mother. “But eventually.”
“Love you, doc.” Marcus seemed quite pleased and erectile-hopeful. So we were pleased and hopeful as well.
In the months that followed, other signs of hope emerged. Our marriage equality case suddenly wasn’t alone. The wife of a woman named Edie Windsor passed away, and despite the fact that they were legally married in their home state of New York, Edie received a big federal tax bill for the inheritance—a bill a straight person would never have been issued just for keeping what she and her spouse had shared. Despite pressure to keep quiet from some of the same nervous folks who had demanded our case slow down, Edie chose to fight back too. She found herself a brilliant lawyer named Roberta Kaplan and sued the United States in federal court claiming that the Defense of Marriage Act was unconstitutional. DOMA was the legislation that had barred the federal recognition of same-sex marriages since 1996, when President Clinton broke his campaign assurances to protect LGBTQ people by signing it into law.
Now two marriage cases were racing toward SCOTUS, ours making an argument for same-sex marriage in all fifty states as a fundamental, constitutional right, and Edie’s making an argument that would kill DOMA and bestow federal benefits on gay and lesbian marriages, but only in states with marriage equality already, like New York. Edie’s case moved fast. And after a long-delayed win at the Ninth Circuit Court of Appeals, our case was at long last on its way to Supreme Court consideration as well.
Now the high-stakes waiting game began: Would SCOTUS grant either of our cases “cert”? Would marriage equality soon see the highest court in the land?
I prayed that the answer was yes. We could all feel that a tide was turning. Those allies who had initially pushed back were now pushing with us, including the men I’d met in Las Vegas, the ACLU, HRC, NCLR, and GLAAD, all working nationwide—online, in print, on the ground, and on TV news shows—to share stories of more couples and families seeking marriage equality. And braver than any court case or organization, individuals across the country were coming out and sharing their stories on the most consequential stage there is: the family dinner table. It felt like Milk-style politics on a national scale.
Soon, polls confirmed our feelings, demonstrating that no matter what part of the country someone called home, most could now say they personally knew at least one LGBTQ neighbor, coworker, family member, or friend. And as the SCOTUS cert decisions drew near, news networks began reporting that a majority of Americans now favored extending marriage equality to gay and lesbian people—their friends, family, and neighbors.
To my heart, it felt like the nation I’d always loved was finally getting to know and love their LGBTQ children. And then, after publicly opposing marriage equality in his 2008 presidential campaign, even Barack Obama, a sitting pres
ident, came out vocally in favor of our right to marry, and not after but before his election to a second term. We were truly and measurably winning hearts and changing minds.
Then, at the tail end of December 2012, Adam Umhoefer, the executive director of our case’s foundation, rang me up, his voice filled with excitement and nerves. Surprising many a pundit, the U.S. Supreme Court had just granted both our and Edie’s cases certiorari. Nearly four years into this grand venture, we were headed to the United States Supreme Court.
II
It was a cold March morning. There were no leaves on the trees yet, but the sky was clear. I had flown out to Virginia the night before, and my mom quickly criticized that I’d “packed like a Californian.” So Jeff had lent me his thick winter pea coat when I left the house early the next morning to catch a train into Washington, D.C. With that pea coat on, and a bright blue scarf wrapped twice around my neck, this Texas boy was warm enough to walk slowly from the Metro to the highest court in the land, and quite slowly, taking in the Library of Congress, where Clint Eastwood, Leonardo DiCaprio, Naomi Watts, and I had shot scenes for J. Edgar just a few years earlier. It was the last film I had been hired to write before turning my full attention to this equality fight, and despite the draw of working with my teenage crush, I wasn’t able to be there to help produce the film like I had with Milk. I yearned to return to filmmaking. I missed the thrill and challenge of those bright lights, of working with the great actors of our time. That all felt a world away now.
I turned my gaze across the street, to the Capitol dome, pondering the future, thoughts of serving this nation I love one day, perhaps even as a representative. A boy can dream. Then I looked past the dome to the Washington Monument—the same spire Martin Luther King Jr. must have looked up to at least once as he shared his great dream of equality at the March on Washington for Jobs and Freedom in 1963. Also in my line of sight was the vast lawn before the Capitol that had once been covered by Cleve Jones’s quilt bearing the names of those AIDS had ripped from us. I was walking in the steps of so many noble men and women engaged in the struggles of our past, present, and future. And then I worried. As confident as those of us who had brought this case needed to appear to our brothers and sisters in the movement, I was far from certain what legacy our efforts might soon find in this city’s history—a history filled with great leaps forward but also terrible losses for people of diversity.
It was early morning still, but supporters and protestors were already gathering outside the Supreme Court. With Chad now at my side, I joined the line south of the court’s grand steps, alongside Bruce Cohen, Cleve Jones, Rob and Michele Reiner, and countless others now championing these marriage cases that were gripping the nation. Every news station, paper, website, and blog had been headlining these two cases for months. Their outcomes promised protests, riots, or massive celebrations—and we knew we had a responsibility to be prepared for every outcome, nationwide. We had made very public promises that taking this fight to the federal government meant everyone would have a stake, so we knew most would react no matter what corner of the country they called home, and the results of those reactions were on our shoulders.
The line began to move outside the court. My chest began quivering, but not from the cold. We all followed the court’s guard, easing past an army of news crews setting up cameras on the steps for the morning shows. Reaching the first landing, I looked back. The crowd of supporters had already grown to hundreds; a stage was being prepped for a rally. I spotted so many familiar faces from across the country, people who had traveled to be here on this historic day, and as they watched us make our way inside, they sent up a cheer of encouragement louder than their numbers. Then one by one, we walked between those famed columns and through the front doors of the United States Supreme Court. We had finally reached our destination.
Stepping inside the U.S. Supreme Court is a humbling, if not religious, experience. It’s a temple. A temple to history, to the rule of law, to the U.S. Constitution: heavenly white marble with deep gray ribbons of earthly complications, red velvet curtains that could provoke a queen’s envy, and dark wooden chairs and benches that refuse to let visitors forget how many have come before. It is the architectural definition of drama.
Our little crew took our seats near the front. Our nerves were visible. It had taken four long years to get here, and now all the arguments for and against marriage equality would have to be squeezed into little more than an hour. Ted Olson would be making the case for our side, and Chuck Cooper for the other. Slicked-back-silver-haired Cooper, who’d been leading the opposition against us this entire time, would soon argue to nine justices that marriage was a step too far for Americans like me, my big brother, Kris, Sandy, Jeff, and Paul.
The justices entered the grand inner courtroom in their robes with an immense amount of gravitas. The sight of Justice Ginsburg easing into her chair was inspiring—she may have been eighty and small, but she wasn’t frail or elderly, and her line of questioning suggested that she was on our side. Justice Kagan took matters a step further as she directly confronted the same “procreation” argument Cooper had been making for years now as he tried to make it land here.
SCOTUS “PERRY” CASE TRANSCRIPTS
MR. COOPER: The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus, refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples. Suppose, in turn—
JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, Because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?
MR. COOPER: No, Your Honor, it would not be constitutional.
JUSTICE KAGAN: Because that’s the same State interest, I would think, you know. If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?
MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples—both parties to the couple are infertile, and the traditional—
(Laughter.)
JUSTICE KAGAN: No, really, because if the couple—I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.
(Laughter.)
It was a reassuring moment, but then from the four justices we had assumed might be against us came darker confirmations. I watched Scalia gleefully poke at Ted Olson. If cameras were allowed in this courtroom, the country could have seen how Scalia chuckled between several of the inflammatory questions he posited, seemingly loving their headline-worthy, caustic nature. Or how the perpetually silent Justice Thomas whispered jokes into Justice Breyer’s ear, spinning around in his chair after his own punch lines as if this were a playground—as if citizens’ lives weren’t at stake. So although we clearly didn’t agree on the issue of marriage equality, I appreciated that at least Roberts and Alito seemed to be taking their jobs seriously that morning.
It was a lot to absorb and decipher, so I listened very carefully, marking the time we had left. TV pundits would soon offer their own “pivotal moment” opinions, but for me, the historic newsflash came exactly twenty-four minutes in. That was when my crinkled-up, overly sensitive ears heard Justice Anthony Kennedy turn to Chuck Cooper and speak words I will never forget:
JUSTICE KENNEDY: There’s substance to the point that sociological information is new (re: gay marriage). We have five years of information to weigh against 2,000 years of history or more.
On the other hand, there is an immediate legal injury, or legal, what could be
a legal injury, and that’s the voice of these children.
(I stopped breathing.)
There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?
Full stop. To my ears, this debate was over. My entire life, I had heard arguments from my church and our state that LGBTQ people somehow harmed children. Harvey Milk had fought such claims in his battle to protect gay teachers, Prop 8 ads had sounded the same alarm bells, and Chuck Cooper had alluded to such arguments in this very case back in district court.
Now, hearing in that question from Kennedy’s own lips a defense of gay parents’ children, our children, I knew that our combined work and sacrifices over so many years had proven effective. Somewhere along this journey, or perhaps well before, Kennedy had heard us, he had seen us, and he understood that the recipient of injury in this case was LGBTQ people themselves, and that the malfeasant was the unequal laws that had reinforced so many false narratives and deemed our families less than equal for too long and for no good reason.
Cleve was sitting next to me. I took his hand and looked him in the eyes. I can cry at greeting card commercials. He isn’t that guy. He had already survived too many fights with greater consequences than this one. But in that moment, his eyes were also brimming. He had heard and understood what I had. He knew what lived just beneath Kennedy’s question. The critical fifth vote on this divided court was ours.
When we walked out of the Supreme Court together, our little team of fighters and plaintiffs, the rallying LGBTQ supporters and allies out front had grown to thousands. They let out a massive cheer for our plaintiffs. Although cameras weren’t allowed, the court had released audio from the proceedings. Many in the crowd had also felt Kennedy’s question on a deeper level than how the more dour political pundits were now spinning it for the cameras. Personally, I didn’t need any experts’ opinions. If we didn’t win a broad decision in one of these two cases immediately, the words these cases had pushed Kennedy to utter would surely set off an avalanche of new cases that would give him the legal opportunity to give us all fifty states. So even if it meant sticking with this fight a little longer to set that avalanche in motion, I felt certain that we would soon see fifty.
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