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    Will We Be Celebrating with Michelle and Malia Next June?

    By Stuart Gaffney and John Lewis–

    We could not help but smile when we learned a few weeks ago that Michelle Obama and her daughter Malia snuck into the crowd of thousands of Americans cheering at the gates of the White House on the day the U.S. Supreme Court issued its nationwide marriage equality decision three years ago.

    As the former First Lady told Ellen DeGeneres while promoting her new memoir Becoming, she became aware from inside the presidential residence that “thousands of people were gathering in front of the White House at that time to celebrate, and my staff was calling me, everybody was celebrating, and people were crying, and I thought, ‘I want to be in that.’”

    Obama recounts in her book how she made it happen: “Malia and I just busted past the agents on duty, neither one of us making eye contact … . We made our way down a marble staircase and over red carpets, around the busts of George Washington and Benjamin Franklin and past the kitchen until suddenly we were outdoors.”

    As she told Ellen: “We stood along with all the cheering crowd—off to the side, mind you, so no one would see us” and “we just took it in. I held [Malia] tight, and my feeling was—we are moving forward. Change is happening.”

    A few days after Michelle Obama made her revelation, U.S. Supreme Court Chief Justice John Roberts issued an unusual pronouncement of his own concerning the current occupant of the White House. Recently, President Trump publicly derided Northern California District Judge John Tigar as “an Obama judge” as part of his criticism of Judge Tigar’s temporary stay of a new Trump policy restricting access to asylum for immigrants, including some fleeing anti-LGBTIQ discrimination.

    The following day, Roberts fired back: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

    We join in Roberts’ rebuke of Trump’s inflammatory rhetoric. More importantly, Roberts, Kavanaugh (the Court’s newest member), and the rest of the Republican-appointed Court majority must demonstrate that Roberts’ words are not merely empty rhetoric themselves. The Court majority must prove through actual legal rulings that we do, in fact, have an “independent judiciary” that provides “equal right to those appearing before them.”

    Earlier this fall at a speech at the University of Minnesota, Roberts described the role of the Supreme Court: “We do not speak for the people, but we speak for the Constitution. Our role is very clear: We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them. That job obviously requires independence from the political branches.” Roberts proclaimed: “Without independence, there is no Brown v. Board of Education,” the 1954 decision, declaring racially segregated public schools unconstitutional. “Without independence, there is no West Virginia v. Barnette, where the court held that the government could not compel school children to salute the flag.”

    But Roberts omitted the fact that “without judicial independence,” there would be no Obergefell v. Hodges, the landmark marriage equality decision that Michelle and Malia Obama had rushed outside the White House to celebrate three years ago. Indeed, the Obamas were celebrating the Supreme Court’s acting independently to enforce the freedom and equality guarantees of the Constitution over the discriminatory actions of elected legislatures and voter-enacted initiatives.

    Roberts voted against same-sex couples’ constitutional right to marry in Obergefell. If Roberts had had his way, the Court would not have acted independently, would have ignored the Constitution’s Bill of Rights and deferred to the political branches. Millions of LGBTIQ people would have been deprived of full marriage equality for years.

    Furthermore, Trump and the Republican Senate have been rushing to stack the federal judiciary with conservative ideologues. They have jettisoned the longstanding practice of negotiating with home state senators of the other party to agree on nominees. And Trump would never even have had the opportunity to appoint conservative Neil Gorsuch to the Supreme Court if Senate Republicans had not brazenly denied Obama his right to name Scalia’s replacement back in 2016.

    On November 30, the Supreme Court is scheduled to confer on whether to decide key cases pertaining to workplace discrimination against LGBTIQ people. If they do, Roberts and his colleagues will be put to the test, and we will see if the Chief Justice means what he recently said. If there truly is “Equal Justice Under Law,” as the words engraved atop the Supreme Court read, we will have cause to celebrate with Michelle, Malia and millions of other Americans again next June.

    John Lewis and Stuart Gaffney, together for over three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. Their leadership in the grassroots organization Marriage Equality USA contributed in 2015 to making same-sex marriage legal nationwide.