judiciarysquareparttwo

Judiciary Square

Part Two

MAY

“If gay people can’t marry, straight people can’t decorate.”

Henry Alford, My Gay Wedding

The Apple

“Would you refuse it?”

“I don’t know!” Eve says, and then she’s crying again, the tears flowing so easily down her cheeks. She cries more or less continuously in therapy. Alice Flaherty is the only person Eve has ever known who can see her cry and not visibly react. It’s not that Alice isn’t compassionate, just that she knows Eve’s tears are only part of what Eve is trying to communicate, and so Alice concentrates on some of the other parts. “I mean, I want that ring. I want it pretty bad. I more or less chose it. I showed Gordon the ad in the Times of that Van Cleef & Arpels emerald cut I liked parts of. I drew the way I want mine for him. I pretty much designed it for myself. I might just as well have gone out to Kaufman Jewelers and ordered it for myself.”

“Not accepting the ring now would be like not accepting your own gift.”

“Yes,” Eve says, laughing through her tears. “How can I reject me?” Eve sits opposite Alice in her Wednesday noon appointment. She wonders when Alice eats, since there is the sad young man before her hour, and the giddy older woman after. Could Alice possibly eat in one or both of the ten minute slots in between?

“When do you eat lunch?”

“Why do you ask?”

“Just curious,” Eve says, wondering as always why psychoanalysts have to be so fucking mysterious. “No, not just curious. I’m worried you’re not going to get to eat. I’m mothering you.” Eve weeps, and smiles. “Max is making me crazy. He asked me to go to the zoo with him. The zoo! I love the zoo. He just guessed that. Gordon likes the zoo, too. He’s a panda freak. I feel like I can’t go to the zoo with Max unless I break up with Gordon. Isn’t that ridiculous?”

Alice doesn’t answer.

“When I was little, Dad used to take me and Mike down to the zoo on Saturdays when Mom was getting her hair done. We’d buy peanuts and walk all over. Mike was obsessed with the snakes. Maybe it’s a boy thing. Is that part of the phallic thing? I liked the giraffes. They had a good life and a good view. I love how slowly they chew. Like they have all the time in the world.”

“Time enough to eat,” Alice says. Oh, Eve thinks, eating and time. Like whether Alice gets enough time to eat lunch. I get it.

“Yeah. Their jaws go kind of sideways, not just up and down. They have hay racks, way up off the ground. And the giraffes just look right back at you, with those little horn things or whatever they are on their foreheads.” Eve’s tears spill down. Good thing she kicked the mascara habit at Radcliffe under pressure from her roommate, best school friend Dana Delong, who just laughed at her when she took over the mirror to put on make-up. Eve cries. It’s weird, like there’s a pump inside her that just kicks on the minute she begins telling Alice how she feels. Eve’s primary emotion is sadness, whatever else she’s feeling layered underneath that.

“I want to go to the zoo with Max. I do. But I don’t want to not get engaged to Gordon. Gordon’s the best. He loves me so much. He knows me. Max thinks I’m some kind of legal genius sex goddess. He thinks I’m kind and generous. He has no idea what a dumb selfish bitch I am.”

“Is that what you are?”

“Yes. No. Sometimes.”

“What do you show him?”

“Nothing. I don’t show Max a damn thing, except my brains and my tits. That’s why he thinks I’m so perfect. I’m deceiving everybody.”

“Are you deceiving yourself?”

“Maybe. I don’t know. What do you mean?”

“Are you showing yourself to yourself?”

“I’m trying. That’s why I’m here. God, I’m hungry. What time is it?” Eve looks at the clock. Twelve more minutes. That’s probably two more insights, if she pushes. “I’m showing myself that I want to go out with Max, but I don’t want to lose Gordon.” Kleenex, prolonged blow. “I can’t tell Gordon to wait and let me try being with Max. It’s not like before, when we were in school a thousand miles apart. Gordon knows Max. It’s not fair. I already asked Gordon to wait two years and he just did it, and let me fuck other men. I can’t ask him to do that anymore. Plus, he sees his family, he sees my family, all the time. It would be too awkward and too weird. Why did I ever move back here? I should have clerked for the first circuit, but Boston’s too small. Mike would kill me if I broke up with Gordon again. Men always stick together. He thinks Gordon has been patient enough.”

“Your brother wants you to marry Gordon.”

“Definitely. They’ve all do. They’ve invested so much time. Money. Mom and Linda hang out at Beth Ahaba on the events committee. Dad and David go to Finnegan’s for lunch every month and talk about how shitty their mutual funds are doing.”

“Lunch again.”

“Don’t remind me. God, I’m starving. I’m going to get an eggplant parmesan sub at Louie’s as soon as I get out of here. Do you ever eat there? Oh, never mind. How much time do we have? I don’t remember any dreams. Oh, shit, that’s not true at all. I just remembered. Last night. It must have been in the middle of the night, which is why I couldn’t remember it till you just said that.” And all of a sudden her tears stop. Just like that. “We were eating crepes.”

“We.”

“Max. He was naked and that was a little bit surprising because we were walking down M Street toward Wisconsin, past that bar that used to be Annie Oakley’s. It was so warm out. I was wearing low heels and Donna Karen. Max had a chocolate crepe, the kind I had in Paris last year when I got there right after the bar. They make them with Nutella, that hazelnut chocolate stuff. We stopped near the corner, and Max held out the crepe in the little paper cone thing. But the crepe was sticking out the top and it was oozing chocolate, beautiful, black chocolate. And he looked at me and said, Yours, like it was the last bite and he wanted me to have it. Even though it totally wasn’t the last bite. It was the first bite.” No tears. Eve’s smiling.

“Black chocolate.”

“What do you--. Oh God, no. Please. Not black like black,” Eve says. “I don’t think of Max as a delicious chocolate treat.” She pauses, picks at her cuticle for a minute. “Yes, I do. Damn it. Nutella is brown. This stuff looked so good and it was really black. Blacker than Max. I do think of Max as a chocolate treat. That’s so, like, sixth grade white girl.”

Alice looks at her. She puts down her pen. It’s twelve-fifty.

Kitty Hawk

“Stay on the sidewalk,” Jon yells, his voice loudly paternal on this calm Sunday morning. Ella is the first to respond, duly veering onto the 17^th Street sidewalk, loopy ears bouncing, tail pausing midswing at the admonition. Nita follows Ella up a rounded curb on her small red Kona with its Bontrager crankset, Shimano XTR real derailer, its Rock Shox, Time Atac carbon pedals, and Mavis X517 rims. A lot of bike for a six-year-old, but Jon couldn’t resist when he saw the little cross-training bike, with it’s tiny titanium frame. Her training wheels ride about four inches off the ground on either side of her rear fork, only touching down when she leans into turns and then interfering, but Nita likes to know they’re there. She watched her best friend the courageous but slightly oblivious Andrei Shleifer turn the handle bars of his Sears special around and take a few layers of skin off his right cheek, and so she hasn’t said a word to Jon about removing the training wheels he adjusted out of her way. She has twenty-six gears but generally rides in either sixth or third, using only the right lever, so that she is either spinning fast or barely chugging along, a revolution every second, covering a lot of cement. Jon, on his Aeon with it’s tri-void boom tube and low forward pivot, hangs in ridiculously low gear so he gets an aerobic workout, madly spinning along behind dog and daughter. He’s dressed down, leaving his current favorite spring outfit, purple-side-striped Sugoi pants, marigold-yellow and chili-red Louis Garneau jersey, for an adult ride, instead going almost incognito in an old pair of Pearl Izumi knee-lenghts and a faded Bubba Shuma short-sleeve. Just dad out with daughter and pup, not semi-pro touring racer, a one-time Eastern Seaboard finalist.

Nita turns to him and scowls. As far as she’s concerned, Saturday bike rides are her due, Jon having spoiled her with the fair-weather ritual since she was out of diapers. But that was pre-Sam. Now she acts as if she’s actually doing him a favor when really, by getting out of the house, they’re both doing Peter, who’s sleeping, a favor. Jon tentatively imagines just how tiring and complicated Saturdays and all the other days are going to be when Sam arrives. Will he take both kids out, Sam in the racing chariot hitched to his back fork, Nita on her Kona up ahead? Nita will ride out of sight to torment him, chaperoned only by Ella. Why then can’t he wait to have a second child in his life?

Nita rights on H toward G.W. She has the route memorized and Jon lavishes praise on her for her navigational acumen. “Slow up, Lizard!” he calls as always as this point. He always says slow up, but not Lizard. Where did he and Peter come up with the endless litany of nicknames stretching back to infancy—Monkey, Cricket, Leaper, Professor Slurpy, and all the rest of the elaborate stratified silliness? He and Peter like to list backwards toward the first nicknames, Lemur, Peanut, uncovering the whole archeology of fatherhood along the way. When Tim Christenfeld called and said he wanted to talk to Jon about his and Peter’s being the gay-marriage test couple for DC which, while not promising politically and not favorable constitutionally, what with the rickety old Charter giving so much discretion to Congress, was worth a try anyway because of the prominent DC Circuit appeals court, following two deaths and appointments, had a liberal leaning after decades of right tilt—when Christenfeld called, Jon and Peter had been fathers for seven months. Nita was Cricket most days then because of her articulate chirpings and always working bony legs, because of her wise, Jimminy-type expression. Plucked Chicken being an alternative alias. Your country needs you, Tim said, calling Jon in his office at G.W. Jon’s had spent about six years thinking, writing, and lecturing about marriage and American post-colonial family law, which is why his friend and colleague Tim, who was at the law school, had him pegged as a likely John Doe. Jon brought the idea home to Peter that evening and Peter said absolutely no. Said he had enough on his hands without having some kind of legal saga taking up whatever scraps of leisure might fall his way. He also didn’t like the model-couple posing that would be involved, with its, See, straight people, we’re really just like you, publicity campaign, its exploitation of Nita, its assumptions that Jon and Peter were already married in their hearts (they were, in fact, going through major turbulence because of having an unplanned child, and because they’d been living together for less than a year and were discovering incompatibilities at a rate of one a day), with its easy equivalencies between straight and gay life, and blurring of the boundaries between public and private life. Let the gay zealots find some other brainless poster boys for stability, family values, and religious affiliation.

“I’m tired,” Nita says. She has pulled her bike up to the statue of General Montgomery and stands, one foot poised on the pedal, beside it.

“Doghhh-nuts?” Jon asks. He and Nita always have doughnuts, but usually not until the trip home. One summer they had a memorable counter woman who asked Nita, each time they came in, “What kind of doughhh-nut can I get you today, honey?” When she said doughhh-nuts, her wide eyes became even wider and she showed all her teeth, top and bottom, in a grin. “What kind of doughhh-nuts you going to get today?” Jon asks now. Nita doesn’t answer but wobbles off in the direct of Dunkin’ Ds on 23rd Street, Ella by her side.

Peter was a novelist, after all, which means he wants to tell everything about himself his own way in his own sweet time, weaving his autobiography into fiction, changing genders around, using old boyfriends’ names, alternately idealizing and picking on family members as he chooses. He’s written three books so far, the first a documentary about growing up gay in a large Catholic family in the West, the second a novel, less autobiographical but still laced with real folks, not so much fictionalized as disguised with a beard and glasses, or breasts and a new job, the third pretty much real fiction, except for all the parts that were taken from the lives of friends. Being married to a writer, Jon has come to understand over the nine years he has observed or rather heard Peter at work, chortling and talking to himself over his computer at odd hours—marriage to a writer is like a permanent game of hide-and-seek, in which the author is It, and the husband and other people the author knows hide in the closets, under the beds, down in the furnace room, waiting impatiently or fearfully for the moment they will be hauled into daylight, tagged gently or roughly, and exposed in greater or lesser social, sexual, and sartorial detail.

They lock up the bikes in sight, put Ella on her lease, she looking aggrieved and saying with her eyes, You know this leash really isn’t necessary, and clack into the store on their pedal-clips. A young man has taken the place of the grinning doughhh-nuts woman, and he doesn’t say anything, just waits for their order—chocolate glaze with rainbow sprinkles, a cruller, and six holes. There are a couple poor bastards on their way to work, dressed down so they pretend it’s their weekend too, but carrying forty-pound briefcases. A woman with four creased and crowded shopping bags who adds many sugars to her coffee. And Nita and Jon, who take their usual table by the door, where they can see Ella and the machines. Ella is looking for new friends, sniffing and wagging at passing legs. “Are you having a grouchy morning?” Jon asks. Nita shrugs.

When he and Peter met at a lunch for new faculty, Peter was one of those artists-in-residence, a writing teacher at but not of the university. They had both been told about each other so often in the preceding weeks, in such a patronizing and insistent way, they felt as if they were the only two gay people on the planet, and that the survival of gayness depended on their meeting. Intrusive members of both the English and history departments, plastic glasses of jug wine in hand, steered them toward one another across the crowded faculty club. Jon saw the surprise in Peter’s eyes, too great for him to hide, when Peter saw Jon was not marred in any immediate way, or living under such a burden of shame or shyness that ordinary interaction would be impossible. “You’re the Gay Male I’ve been hearing about,” Peter said when the matchmakers at last retreated. “You’re the Confessional Novelist I’ve got in the back of my car,” Jon boldly countered. And so it went from there right through Peter’s non-tenure track three-year contract, during which he taught until he couldn’t see straight. Jon’s tenure came through the same month Peter, having spent the summer in his soon-to-be-abandoned apartment writing, just writing, without a single student story to entertain seriously for a whole sunny summer, declared, “I’ve discovered I love not teaching. I’m going to dedicate my life to it.”

Teaching really had been a problem for Peter in that he had a tendency to think about his lonely undergraduates too much, to spend lots of time dreaming up writing exercises he knew they would enjoy, writing notes in green ink up and down the margins of their short stories, and worrying about what they were doing on holidays when they were too poor to get home, or didn’t have homes, what they would do to make a living when they graduated, what would happen to them if, heaven protect them, they actually became writers themselves.

“If I let you have some coffee, will you talk to me?” Jon asks. Nita nods. He reaches and brushes sprinkles from her cheek.

After he and Jon bought the Church Street townhouse with Jon’s money, moved in together and became fathers, Seth Griffith, one of Peter’s favorite former students, was beaten outside a a bar by two U. Maryland students who claimed Seth had come on to both of them. Seth was no more capable of making a pass at anyone than he was at defending himself. He lost his left eye. The Maryland guys were found guilty of aggravated assault and thrown out of school. The night of the attack Seth had the police call Peter, not his mother in Nebraska, and Peter rushed down to G.W. Emergency. Jon followed as soon as Caroline arrived to watch Nita. Peter wasn’t weeping when Jon found him, sitting beside Seth, whose head and eye were bandaged, but when they got back home at dawn, Peter sobbed against Jon’s chest. Jon held him until he stopped trembling. Sweetheart, Peter managed to say, we’re going to have to be Tim’s guinea pigs.

“More,” Nita says, reaching for Jon’s coffee cup. He gives her a second shot, just a tablespoon or so, and she stirs it into her milk with a fervor that bodes ill for her. She will be a caffiend like Peter as soon as she gets old enough to procure for herself. She looks so like Valerie at her age that Jon has funny flashbacks in which he himself is a boy with his sister in the big, shadowed house off the Circle where their parents still live. Chocolate icing melts on Nita’s lips. Her skin is milky pale. Her eyes, large and iridescent, like the eyes of a owl or a cat, search the windows, the tables, Jon’s face. Valerie was all right most of the time until just about Nita’s age, then she began to have her motionless silent days, her screaming fits, her violent attacks using fists, teeth, nails, on whomever was with her. Jon became her protector, her monitor, roles that Peter points out he still fulfills. “Can I go to Andrei’s this afternoon.”

“I thought we were going to get Peter’s birthday present,” Jon answers.

“Andrei and me are making something.”

“Andrei and I. What?”

“Something.”

“Does it involve deception and death?”

“No,” Nita smiles for the first time since Jon came in and woke, with his usual kisses. She wants Jon to guess. Last week she and Andrei made a mud trap, a hole covered with a thin layer of leaves. They made Jon walk into it, but they let him change into his old shoes first.

“You’re making a rope trap that pulls dads upside-down into trees.”

“No,” Nita says, delighted. “A bomb shelter. In the garage.”

“Where does Andrei get these ideas? I want you to come help me find Peter a shirt.” Nita and Andrei have been best friends since they were two. They seem to understand the pressure they are under to defy gender stereotypes. One month they’re making up stories and devising costumes, the next they’re devising killing machines and air raid shelters. Andrei, a graceful, kind boy who’s parents are at the World Bank, was for years was smaller than Nita until suddenly, in first grade, he shot past her. Andrei doesn’t seem to care whether he plays boy games or girl games, as long as he plays them with Nita. When she doesn’t show up at his house on Corcoran, he taps on the front door of her house and then, when anyone opens, comes in without a word and goes to find her, leaving his mother or nanny, or occasionally father, to fend for her or himself.

“He wants boots.”

“I know he wants boots, but I can’t buy him boots. Peter will have to buy his own damn boots,” Jon says. And when he tries them on, he’ll realize that Tony Lama’s don’t make the man, that he’ll never be the styling young buck he still has in his mind, and that the boots make him look like he’s trying way too hard. “What he needs is soft, nice shirts,” Jon tells Nita, “that he can wear out to dinner.”

“You choose. I’ll contribute,” Nita says. Her standard contribution is now fifty cents. She has learned to buy her way out of time-demanding obligations, to use grownup words like contribute, and to speak in two-word declaratives, Peter’s slightly edgy speech pattern. Jon himself, professor that he is, tends to speak in circuitous turns-of-phrase, such as tends to speak in circuitous turns-of-phrase, when is wordy would do the trick.

“Well, I guess I can go by myself,” Jon concedes. He’s worried that, if he isn’t careful, he and Peter will end up with pretty much the same wardrobe, the way they did five years back when they were on a raw silk kick. He was hoping that Nita would help him choose a shirt or two he wouldn’t have chosen for himself. “Why don’t you and Andrei both come? We’ll go by Army Surplus on the way home.”

Stimulants, guilt, bribes. All the things Jon swears to Peter he never employs in his negotiations with their daughter.

“Can we buy a grenade? We have the money.”

“A grenade,” Jon hears himself saying. “In case losers who don’t have bomb shelters try to get into yours and you have to blow them away.” Nita tilts her head appreciatively. Jon wonders if he needs to explain that the grenades aren’t live, just husks. Nah, Nita knows. She and Andrei love the surplus store on M Street with its camaflogue clothes, its smoking paraphernalia, pipes, papers, ultraviolet lights and posters, its knives and maces, its no-nonsense tents, tarps, sleeping bags that would keep a person snug in the snow, stoves the size of coffee mugs. They could be employees. They know every inch of the place. The mud trap was dug with an army collapsible shovel. “Sure, why not.”

“I have to ask Andrei,” Nita says, as if Andrei would ever not go anywhere Nita wants to go.

“A cheval,” Jon says, finishing the cruller. They file out, unlock their bikes. One doughnut hole is for Ella, the rest get stowed in the seat bag for later. They ride up Olive to 31^st. Nita pulls over and stops.

“I want to try riding without my training wheels,” she says.

“Okay,” Jon says, suddenly unprepared. “I’ll tell you what. Let’s go into the park and ride off-road.” He wants her to have grass to fall on, but grass will be more challenging to find vertical on, if she’s frightened. Should he choose an area with a grade, or a flat? He wishes he had the mobile and time to call Peter.

In Montrose Park a man does tai chi. Ella is freaked by this, and begins to bark. Jon whistles her off to the top of the gentle grade that wends its way alongside Dumbarton’s boundary, past the trompe l’oeuil gate, closed now, of weathered inlay work. A couple in tennis whites and matching knee braces play a slow match. Big crows stand on the grass nearby while Jon gets out his tools, eats a doughnut hole to calm himself. The training wheels take about a minute to remove. His heart is pounding. He studies the thicket of bamboo in the creek bed, and wonders if Nita’s ready. He holds the bike she climbs on.

“Give me a push, Daddy,” Nita says. Jon is about to give her much advice, but instead gives her the most tender launch in aviation history. She creeps forward across the lawn, her shoulders tense, elbows out. The handlebars oscillate, Nita stiffens and stops pedaling. Jon starts forward to catch her, stops himself. The grade pulls the bike forward and the front wheel stops wiggling. Nita’s feet give the pedals a tweek and she coasts, picking up speed, her hair rising like a fragile brown windsock, Ella trotting alongside. Nita is almost to the tennis courts before she finds her brakes, teeters, and leaps free of the falling bike. She runs back up the hill, yelling.

“Daddy! Daddy! Did you see?”

The Scholar

In Max’s view, the Library of Congress lacks the mustiness proper to a great archive. The reading room resembles a banquet hall in a downtown hotel, the light colorless, the walls wood-paneled to shoulder height, painted beige to the acoustic ceiling above. Yet the usual suspects, common to all research libraries, have convened. Oddly Contorted Readers occupy springy new chairs by the Constitution Avenue windows, heads at extreme angles, legs tangled in yogi knots. The Queen’s Guard sit bolt upright at the polished tables, books and computers in front of them, both feet squarely on the floor, eyes unblinking, pages rapidly turning. Scattered about like fallen comrades, Dozers bob slowly forward, eyes closing, only to jerk upright, awoken by the draft of cool air on the back of their necks. Upper Respiratories hack, snort, and hawk, and pink-and-white bouquets blossom beside them. Tinklers, caught in a Dantesque cycle of coffee, bathroom, coffee, in perpetuum.

On days when he really wants to get some work done, or when he wants to make Eve miss him, Max seeks out this monkish retreat in the Library of C. Neither Keith, Andrea nor Eve comes here. They find all they need and more in the courthouse and online. But Max has always loved the maze of a non-virtual library, and books are accessed only via the Keepers, to whom one passes prayerful requests on gossamer blue slips. Max is lertly at rest, feet free of loafers, bottom slid down as if the sturdy armless chair were a recliner. Max is an Oblivionist. Noise level, commotion, cigar smoke, illumination, chair type, matter not at all. Max’s peace depends on having any book he hasn’t read in his hands. At the moment he is mining for Context, the section of the memo he’s writing with Keith. Keith is doing anti-, Max pro-. The pro- view basically asserts that marriage has never meant even approximately the same thing from one century to the next, one country to the next, and that nowadays marriage is a fundamental right. The anti- view rests on the idea that marriage is not properly speaking a public institution at all, but rather a relationship that preexists law, a natural procreative bond between male and female, and that any attempt to modify this is misguided. Max calls pro- argument So Many Lifestyles, So Little Time, because the folks who write against good old-fashioned marriage, saying it is neither good nor old-fashioned, are really free will aficionados. Max calls the anti- side Me Tarzan, You Jane, Him Boy, because the folks who believe that marriage is primordial and unalterable obviously watched one too many Tarzan movies early on, and can’t get the iconography of man, woman, child, out of their retinas.

The reading room, on this Wednesday morning, is briskly lethargic, its membership emanating both vital activity and deathly stupor. Max fires up the Dell and pops the knuckles on his fingers, starting with his pinkies and working his way along to his thumbs, a process that would be audible to his nearest neighbor, a woman Dozer, were she inhabiting Nod. He opens the file Dean v. DC which he downloaded off Westlaw in chambers and waits for the first of the books he has offered prayers for to arrive.

Dean was the last same-sex marriage challenge in the District of Columbia, not in the federal courts but in DC Superior Court, in the 90s. One of the counsels was Craig Dean, also a plaintiff, who had applied for a marriage license with his partner, Patrick Gill. The other counsel was William Eskridge. Max reads Hardwick, in dealing only with “consensual homosexual sodomy,” arguably drew the line between homosexual and heterosexual sodomy, not between unmarried and married conduct. But, even if Hardwick left room for constitutionally protecting consensual sodomy in marriage while permitting criminal penalties for consensual sodomy outside marriage, that would only reinforce appellants’ equal protection argument here. This was in ’95 when Ferren laid the groundwork for constitutional challenges to laws which limit marriage to non-same-sex couples by suggesting that, even if gay people aren’t a suspect class, maybe gay couples are. It was a nice interpretation that might have made Hardwick blow up in the Court’s face, like a shotgun overstuffed with rock salt. Consenting grown-ups can’t give each other head in the sanctity? It’s medieval.

A young man with a shaved and slightly bumpy head brings Max his first stack of books. Max resists the impulse to give the kid a tip if only a suggestion that he grow hair. Instead he whispers Thank you, but not quietly enough to stop a Hearer, fully twenty feet away across aisle and a two table tops, from pointedly setting down his book, sitting back in his chair, and giving Max the evil eye. Max lifts one of his new books in a propitiatory toast, but the eye remains fixed. Whatever. Max cracks the first of the books he beseeched from the tall mustachioed circulation Deity after a flurry of surfing under keywords marriage law custom religion homosexuality interracial and so forth. He reads It is very difficult to say what the wives themselves think about polygyny. One thing certain is, that it does constitute a problem for them. In some cases, the kind of person the co-wife is likely to be is quite as important a factor as what sort of person the husband is. It must be remembered that the two women, if they share the same dwelling, will spend more time together than either of them will spend with the husband they have in common. Max must make a decision about Felicia soon. He loves Felisha but fears for this love’s endurance. Felisha is too familiar and endogamous taboos are kicking sluggishly in. Too much like a sister or first cousin, too much a member of a newly upper-middle class, well-spoken, politically centrist metropolitan black community. Max wonders if Eve, with her Semite desert child beauty, her allure of the painted woman (he loves how much make-up she wears, in contrast to Felisha’s Ivory soap look) is not an incautious stretch for an indolent, self-involved, penny-pinching intellectual like himself. He hates the notion of making a serious mistake, of marrying so far outside the fold that in a few years his marriage will have a Victorian quality—he and Eve seated stiffly at table, calling each other Mrs. and Mr., discussing the children’s education, surrounded by nondescript furniture in a house of several thousand square feet of poor building materials on a treeless suburban acre in a colorless Maryland-ring development. He likes to think of himself as a fearless social trail-blazer but knows that he is at heart a follower of paved roads to numbered campsites.

He lays down the first book, opens a big one. Intermarriage was never an important goal of the civil rights movement. For most black people, the ban on intermarriage was only of symbolic importance, since the ban reinforced the assumption of black inferiority. Whereas gays and lesbians actually want to marry, and now have married, in large numbers. Max has a section in Context on parallels and discrepancies between intermarriage and same-sex marriage. In ’48 California allowed Andrea Perez, a white woman, and Sylvester D--, a black man, to get hitched, much as New Mexico allowed Aldrich and Day, and all the rest of the same-sexers to make honest men and women of each other. Then state legislatures spent a couple of decades repealing or enacting different-race marriage bans, while the Supremes dismantled segregation. Ten years after Perez Dick Loving and Mildred Jeters drove to D.C., married, drove home to Leesburg, and were arrested at two in the morning and hauled to jail. The ACLU represented them in Virginia and the federal courts. Judge Watkins, who ruled against them in Virginia, wrote that God gave to each race its own land, the Negro, the Malay, and the White European. The Supremes cited the Fourteenth, saying the marriage ban rested solely on distinctions drawn according to race.

From time to time Max dutifully informs Felisha that he cannot promise he will marry her. She counters his confessions with her own commitment and certainty that he will propose within a year or so after clerkship. And she may be right. After all, clerkship is not reality. In clerkship law is interesting, young people wield considerable power, and there is still that intoxicating feeling of freedom left over from law school, that sense of changing the world or at least observing it closely, that a few years of corporate or litigation will knock out of a boy. Unless he takes a job at Public Citizen, school loans be damned, Max may become more realistic about a lot of things. Felisha insists on waiting and Max doesn’t have the conviction to stop her.

More books, this time in the arms of a really old man. Max performs a series of sharp head bowings meant to indicate gratitude, and when the man is gone, fans the books out on the table like a gambler handling cards. He sees French scholars who turn history upside down, ignoring the kings and wars and looking at what people ate for breakfast and what their underwear, and their marriages, were made of. American Constitutional scholars, who point out the moments when the Court either gave into or turned on popular opinion. Sociologist experts on the family, who see children as faring well in the hands of loving parents of either sex, or of two parents of the same sex, or of two people, not biological parents, who assume responsibility for the children when they are still infants and everyone can imprint on everyone else. Max has the interest-of-the-child question in his chunk of the bench memo. He slips a book from the assortment and opens to read Wilson’s study of the children of lesbian and gay men do not find the children to be exposed to high levels of teasing or ostracism; 80 percent of children in the study group’s 10-to-12-year-olds report “no teasing at all,” while only 3 percent report “lots of teasing about my two mothers/fathers.” Adult children of women who had divorced and then declared themselves to be lesbian spoke more proudly of their mothers than did children of divorced women who either lived alone, or lived with a male companion. Max’s mom Rita (Bitty) teaches geometry and algebra-trig at Max’s own alma mater, Benjamin Banneker. His pops Jason (Jay) is a mostly commercial real estate man with an office on K Street, his deals reaching into Virginia and Maryland but centering on the mixed commercial-residential quadrant to the south and east of Dupont Circle. Jay and Bitty are near to retirement and Max keenly feels the weight of being the only son, scion or whatever. They want him to marry soon and give them grandchildren to coddle and disagree with Max and his wife about the rearing of. They are both closet bigots with white friends but not intimate friends, having received Max’s non-black girlfriends with studied civility, code for, Go on and play, Max. Bring us a black daughter-in-law when you’re ready to settle down. Then came Felisha Hutchinson and they were unrecognizable as the parents who had met June Beaumont (white), Linda Hammett (Hispanic), or Sam(antha) Chae (Korean-American). Jay gazed at Felisha—the four of them were having dinner at Chez François—with reverence, while Bitty kept touching Felisha’s hands, her cheeks, with caressing fingers, as if to prove to them all that the girl was real. After that first evening Felisha was Sweetie to Bitty, Our Girl to Jay. For her part, Felisha called Max’s folks Momma and Poppa. Her own parents, called Dad and Mom, Fairfax Virginians, a print shop owner and social worker, were now steady Kennedy Center (all four) and Tyson’s Corner shopping expeditionary (moms) companions of Bitty and Jay. Talk about clan marriage.

Max scrolls around in his memo and locates the place where he left off yesterday, with that back-hoe-with-bucket-set-down-in-red-mud temporary finality. The paragraph he was working on, when the Lingerers were being hustled out by a half dozen Stackers, who swept in from nowhere like winged monkeys—the paragraph just ends in midair.

Somewhere in the second year of his relationship with Felicia, two years ago now, Max felt himself becoming superfluous, as if he lived in a culture in which sons-in-law spent their working days in young men’s villages, returning only once a fortnight to visit their betrothed—a culture that corresponded to Max’s temperament and schedule. But since that fateful day when Eve wandered into the courthouse to begin her clerkship at the last possible moment, after her extensive European getaway, for ten months Max has felt entirely engaged in waiting. He awaits instruction and encouragement. He awaits a first substantial move on Eve’s part. Even when he gets clear signals of interest, he awaits a concrete sign, her breaking up with Gordon for instance, so that he can deliver himself into arms of his brilliant, self-sufficient, neurotic, deliciously curvy Jewish colleague. Max will then ask Felisha to Release me and let me love again, as the song says. He will cross into that uncharted land of intermarriage, that zone where people mate for life based on an interest in federal procedure and dislike of musical theater (Felisha likes musicals, which Max finds deeply disturbing), that modern place where young people marry because they memorize The Nation unintentionally, rather than because of identification with the same ethnic subgroup.

The section Max begins banging away on now, opening books until he is surrounded by a chorus of supporting voices, is about polygamy. One of the bugbears the opponents of same-sex marriage are always pulling out is polygamy, saying that if same-sexers get marriage, groups of three or more will be calling wedding planners and filing complaints post-haste. Max isn’t interested in that. There’s a barrage of reasons why polygamy is a horse of another feather, primary being that, as Eskridge says right over here, allowing a man to take two wives might create or exacerbate hierarchical structures with the marriage. As the center of competition, the husband would be able to play one wife against the other. Because the husband would have to deal with at least twice as many wives, it is probable that he would establish a more authoritarian structure for the marriage. This not only defeats the companionate goal of marriage but contributes to gender inequality. The state’s interest in gender equailty is a compelling one. Ditto polyandry. Of course, if procreation is the central purpose of marriage, polygamy makes good sense, and if sexual variety is your thing, polygyny might be all right, though the accounts of Mormon polygyny in the years before the 1882 Edmunds Act, polygyny sounds more like some kind of a 4H project gone awry, animal husbandry in the land of salt and not enough water, than a seraglio with pillows and sweet mint tea. Definitely not for Max, who finds it hard enough to sleep with Felisha every week or so while thinking hard about Eve. He can’t imagine sleeping with both of them on alternate nights. Sadly, Felisha’s not really very excited about being excited sexually. Everything works okay, but there’s no wonder in their couplings. Sex with Felisha is faintly hygienic, while Max is sure that sex with Eve would be different. Sex is really the only religion Max has left, and Felisha secularizes it, without meaning any harm.

Eve, Max is fairly certain, is in a canoe as narrow and leaky as his own. Gordon Rudin is the boy almost literally next door. Eve’s parents and Gordon’s are eternally golfing, playing mixed doubles, seeing the latest films together, like double-dating teens from the same B’nai B’rith chapter. Gordon is apparently delighted by these proofs of clan allegiance, while Eve never mentions the two families without an ironic, psycho-therapeutic (she’s a twice-a-weeker) raising of the eyebrow (she has thick, dark brows, like penciled underlinings in a book), pursing of the lips (plum-colored, like promises), and a dismissive shrug of the shoulders (square, set above her bosom like a viewing stand). Whenever Max is near Eve he experiences heat and sophistication, intellectual assurance, warmth, and some perfume (Eve always wears perfume, Felisha never), drawing him across county lines. Whenever Eve is within sight Max wonders how it will end and whether it will ever begin. He feels Midsummernightian, as if he and Eve are in a forest, magical forces are at work, and not necessarily benevolent spirits are in charge.

Choco Milk

Valerie is in the living room with Sammy watching Days of Our Lives. Sammy’s sleeping. Lucy is downstairs putting the clothes in the dryer. Roberta’s in the kitchen making a sandwich, pouring tea over ice, and stirring in lots of sugar. Roberta is supposed to be watching Valerie but she’s hungry. Valerie thinks nothing, really, except that the sound of the dryer beeping, Lucy’s steps on the stairs to the basement, remind her of that day of the milkshake.

When Valerie was five and Jonathan was three, she made him a milkshake. She mixed it up in the basement in the Dupont house, in her pink Captain Kangaroo cup. She started with the regular chocolate milk from the kitchen that Nan the cook made for her snack, went down the back stairs to the washing room. She turned the mop pail upside down, climbed it, stood in the empty stone sink, and reached up for the red can with lots of writing on it where Hank, the gardener, kept the rat poison. She opened the can and dropped two pellets, the only two that were left, into the milk, which she had set on top of the washing machine next to the sink. By the time she had climbed all the way up to the second floor, where Jonathan was lying in his bed talking to himself, having woken from his nap but not climbed down to the floor yet, the pellets were melted away. Here, Valerie said, choco milk.

Jonathan didn’t drink very much before Tabitha, the maid, found the open can on the dryer and ran upstairs, found the cup, and called Caroline from her sewing room. Caroline made Jonathan throw up and then drove him to the Childrens’ Hospital.

Valerie got so much love from Poppa when Jonathan was in the hospital. Caroline didn’t give her so much love because she was at the hospital with Jonathan. But Poppa kept telling Valerie that he knew that she loved her baby brother, that they all did, and that they loved her very much, too, that she should never feel there wasn’t enough love to go around. Poppa played with her all day long, didn’t go to work at all, and at night had Nan make pancakes, Valerie’s favorite dinner, three nights in a row. Those were wonderful days but then Jonathan came home from the hospital and Momma still didn’t give Valerie extra love, just regular love. Momma didn’t give her back tickles for weeks, just gave Jonathan his medicine and read him Curious George, which Valerie doesn’t like, stupid hairy monkey, stupid man with the hat.

On tv Rudy is telling Mary that he loves her and they will get married soon. But Rudy is lying. He’s not going to marry Mary. He’s cheating on her with Mary’s best friend, Ellen. Sammy is asleep in the snuggly. Valerie stands. Her head hurts. She hears the dryer door clank in the basement. She hears ice cubes rattling in the kitchen. She looks down at the baby. Its tiny lips hold a little gray bubble. One of its eyes is a crack open, and the other one isn’t. A sliver of eyeball shows, blue and grey, in the cracked open eye. Valerie picks up the pillow from the sofa and lays it over the baby’s face.

Lucy is about to start folding the sheets in the basement when something stops her. She walks upstairs from the basement, emerging in time to see her sister sneaking back into the living room with a sandwich and a glass of ice tea. Lucy clucks her tongue in disapproval, and Roberta’s ample behind accelerates out of the room. Roberta is not supposed to snack between meals. She is a little bit diabetic—not on insulin, just the pills. And she isn’t supposed to leave Valerie alone for a minute. Last year Lucy dozed off for no more seven or eight minutes, and yet when she awoke, Valerie had snuck out the front door and taken a cab to the Dancing Crab, where she met Mr. Sammy. No matter that Valerie had no money to pay the taxi driver. What was he going to do? Arrest her? Drive her back? And once inside the bar, the men took over, paying for her drinks, one of them taking her to his hotel room and giving her Sammy. No, Roberta is not supposed to leave Valerie alone, even though the door is locked with the key that Lucy wears around her neck. Valerie is resourceful. She might have a key of her own hidden away. Yet Lucy doesn’t want to supervise her sister. They are supposed to be equal partners on the job, not boss and employee. After all, in Peru, Roberta was the one who was allowed to go to nursing school, while Lucy was only an aide in an old age home. But when one is and has always been the eldest in the family, as Lucy has, it is hard not to be in charge. Lucy is about to go back to the basement and fold the laundry when she hears the plate and glass falling onto the carpeted living room—a muted clunk. And then the curse in Spanish, which brings Lucy into the living room to Roberta’s side in time to see Valerie lifting a pillow from baby Sammy’s face, a distant look in Lucy’s eyes. Roberta jumps and falls to her knees and reaches into the snuggly for baby Sammy. As her hands roughly seize the nine-week-old, his eyes open wide. He gasps in delight as Roberta yanks him up and against her bosom. He thinks this a game, and he squeal happily as she presses him, hard, against her starched uniform and stiff brassier. Mi pequeño, she moans, mi pequeño. Sammy begins to cry. Roberta is holding too tightly. Lucy loosens her sister’s arms. She turns to Valerie, to ask her…what? But Valerie has sat down again, the pillow behind her, to watch tv.

Peter is on the phone in the kitchen, cradling the receiver on his shoulder so that he can continue washing the dishes, when Jon comes home. Jon knows something is up as soon as Peter stops washing, carefully dries his hands on a dishtowel, and crosses to the kitchen table to sit. Peter never stops washing or cooking to talk on the phone. On the contrary, as soon as he makes or receives a call, he heads for the kitchen.

“So they’re not sure,” Peter says. Jon recognizes his mother’s voice, in miniature through the cordless. She is as always speaking calmly in an unwavering alto. “I think so,” Peter tells her. There is a pause. “Would you like to do that? All right. What was Valerie doing alone in the first—“ Jon is suddenly alert. He looks at Peter, and Peter raises a hand. “No,” he tells Caroline. “They can’t know. That’s the problem. He just got home. Just walked in. Hi, honey,” Peter says, reaching out a hand for Jon’s cold one. “Looks like we’re getting Sam.”

“When?” Jon whispers.

“Tomorrow,” Peter says. “Because there’s… Listen, Caroline? I’m going to ring off so Jon and I can have a little talk.” Jon hears laughter. “Love you, too.” Peter pushes the off button on the phone, and stands to return the phone to its cradle. No matter that the phone has a five day battery, nor that Jon has explained to him that the phone can be anywhere between calls.

“Tomorrow?”

“Sam’s at your folks’ now,” Peter says. “There was a problem.” Jon tenses, his shoulders, his jaw. “Everything’s fine, sweetheart,” Peter says. “It’s just that Valerie laid a pillow over Sam’s face while Lucy and Roberta weren’t looking. But then they were and Sam’s fine. Didn’t miss a breath. Could have. Didn’t.”

“Goddamn,” Jon says. He falls into the chair Peter has just left. “Goddamn.” His hands are in fists. Tears squeeze through his closed eyelids.

“Shh,” Peter sits beside him, takes Jon’s cold hands in his own. One by one, he uncurls the fingers. “Valerie didn’t know. Nothing happened.”

“It did,” Jon says, eyes open now, face pale, jaw clenched. “She does.”

“Caroline’s going to drop Sam and his things off in the morning,” Peter continues. “We’ll talk to Nita when she gets home from Andrei’s. I’m going up to the attic for the crib and changing table. Jon?”

But Jon is listening to the sound of a baby breathing across town.

The Messenger

Dupont Circle, after the morning rush, settles down to a steady commotion, like an adjunct of Union Station. There are those who have no where else to be (Radio Man, radio murmuring, asleep on the lawn on the Historic Preservation side), those who bide their time before fixed departures (Summer-Weight Suit systematically integrating the Wall Street Journal, glancing at his watch every six minutes), and those who pass through (Day Care Girl, with a covered wagon load of sun-hatted three-year-olds, heading west like pint-size pioneers). Andrea, in the second contingent, arrived with food and work at nine-twenty, and intends to leave again at eleven.

She has always worked outside. The backyard of the Yun family’s extra-large ranch-style on Vallejo Road northwest of Santa Rosa, with its ornamental garden (rocks, mini maples and pines, cement pond with mottled carp) and its “wild” lawn shaded by beech and eucalyptus trees, was Andrea and Candace’s escape from Davie and Bradley, who preferred the front yard, driveway, and street. In back Andrea and Candace read, enacted hour-long dramas, or lay on the cool grass, avoiding prickly eucalyptus leaves. At Anderson School Andrea studied through recess in the softball dugout on the long plank bench, half-hidden in shade. She proved geometry, memorized French, read for English class or for herself (the same story infinitely better if not assigned) while her champions, Tracy Philpot, Kathleen McKibbon, pitched or batted for her alone. Her on-campus years at U.C.L.A. she climbed to the Densen Hill pool and spent afternoons under a beach umbrella near the varsity women’s swim team, books spread on patio table, pale legs waffling on plastic-mesh lounge chair, Russian history, German philosophy, evolutionary biology and field theory keeping her company until Sarah Cairns and Julie Abbot, in classic one-pieces, walked wet and alluring past her, leaving paisley prints on gray cement.

Today Andrea’s Dell is angled so that the morning sun, over her right shoulder, illuminates Facts. Sentences clearer in the light of day. The text, which Andrea formats in bold 14 pitch, stands bravely up to illumination. Keith and Max, the luckies (the clerks divided the brief up back in April, drew assignments from Max’s cupped hands in lieu of a hat) got Context, the juicy part in which they analyze public and religious views of same-sex marriage, argue con- and pro-. Andrea is Jurisdiction/Facts. She is to give Patty the story of what happened in the lower court, just two floors lower in this case, where Joshua Hardway heard Aldrich and Day v IRS last year. Eve is Remedies and her task is to guide Patty as to what her decision should be, which shouldn’t be hard for Eve because she always wants to tell everybody what to do. Beside Andrea on the bench in a canvas tote are briefs filed on appeal from DC and the IRS and from Aldrich and Day. Appeals are short on court time. Almost the whole ordeal takes place on paper, with only an hour for oral arguments, as opposed to the trial in the lower court, which lasted eleven December days (fourteen-hundred double-spaced pages—Andrea’s not carrying the transcript). Just inside the forty-day deadline after the record of the district court decision was filed, IRS/DC submitted their spanking new brief, essentially saying how clueless, with all due respect, Judge Hardway was. How he shouldn’t have heard the case in the first place, since Aldrich and Day should have brought suit in DC Superior Court (jurisdiction argument), how Hardway didn’t understand the issues, allowed the plaintiffs to snow him on factual matters. They suggest that if the three really wise, experienced appeals judges will just read this brief carefully, they can reverse with summary judgment, clear the matter up, and save the taxpayer money and themselves time. In response and after the thirty days due them, the victorious but nervous former plaintiffs, now the appellees, crow in their new brief about how the rightness of their complaint was recognized at once by the clear-headed Hardway, though even he missed a couple of points. The judges of the appeals panel should, if it so please them, acknowledge that the case was correctly decided and dismiss the appeal. If they hear it, the decision of the lower court be upheld and extended. IRS/DC submitted their response to Aldrich/Day, reluctantly engaging the murkier issues, after their alotted fourteen days, and Andrea reviews the whole collection.

She sips chai latte, has a bite of lemon-poppy muffin. She decided to work in Dupont because it’s her birthday and she slept in and is not planning to show up at the courthouse till noon, because it may be too hot tomorrow, and because sometimes the office gets too friendly for writing. Andrea likes to bounce ideas and paragraphs off especially Keith, who can edit orally better than most can on the page. Keith is smart in a Yes sir, no sir kind of way, not flashy like Eve, but thorough, neat. He’s a soldier-like lawyer, and Andrea can use a little more of that and a little less of the stormy rhetoric she picked up at Berkeley. Keith, that formerly-conservative, once-sure-of-himself, born-again eagle scout, Keith’s arguments are trenches, one line behind another, no item standing out but the overall architecture intimidating. Andrea tends to arrive like a storm and depart the same way, wind and lightning, too much air. Still, working alone is crucial. There are days when Andrea needs to let her words delete and add to themselves at their own sweet pace.

She touches up Jurisdiction, just making sure it’s done. The two men married in New Mexico, returned to their domicile in the District of Columbia, filed state and federal taxes in DC. Their complaint is against DC and the IRS, DC for denying them married status, IRS for rejecting the filing. Not a toughy, two citizens against a state and a federal agency, which makes a federal case out of it a couple different ways. (“Don’t make a federal case out if it,” Bradley used to say through Andrea’s childhood, whenever she or Candance disagreed with Bradley and Davie about what to have for dinner on baby sitter night, what to watch during their alotted tv time. The boys were always allowed to dominate. Is that why Andrea became a lawyer and is now thinking of becoming a prof specializing in federal procedure, so she’ll know exactly how to make a federal case out of it?) So the case was heard in the U.S. District Court for the District of Columbia, appealed by the I.R.S. on mostly constitutional grounds to the Court of Appeals, and now here we are. Jurisdiction.

The tort the men are claiming is just the money it’s costing them in federal taxes not to have their marriage recognized by DC. Given that there are 4,324 federal and state laws granting privileges and protections to married individuals, to claim that the wrong done them by DC is that their federal income tax is affected is a little like Capone going down on tax evasion, only this time the government is Al. Another odd Fact is that most couples pay more if they file jointly, a common argument for state’s interest in allowing same-sex marriage, but in this case the couple consists of a professor who makes mid-eighties, and a novelist who made forty-five thousand dollars for his last novel, three years back, so that averaged Day earns about fifteen a year and in this case the couple saves six grand a year if they file jointly. Marital status for federal tax purposes is determined by state of residence. An interesting twist is that DC City Council voted to accept same-sex marriage licenses issued by other states but Congress, exercising supervisory prerogative, issued a rule specifically barring same-sex marriages. So have the people already recognized Aldrich and Day’s marriage? Andrea’s already written all that and it reads fine.

Computers outdoors always feel vulnerable. Andrea likes living on the edge, confronting the elements as she types. Her battery is three-quarters charged, she has chosen a bench without overhead pigeons, and the oblique sun doesn’t glare out the screen. She’s a naturalist recording notes in the morning before setting out from camp. What she tells Patty (Worshipful Max and super-formal Keith can’t seem to call Patty Patty, while Eve and Andrea have no trouble. Yes, Patricia Gibbons is an important judge and a great woman whose decisions have shaped the nation for twenty years, but so what? Woman says call me Patty, Andrea calls her Patty. The boys are primitive, treating Patty as if she’s a totem figure at the hem of whose robe they must linguistically genuflect)—what she tells Patty in the body of facts is that Hardway relied on the four decisions of the last decade-and-a-half, Hawaii, Alaska, Vermont, and New Mexico, each of which ruled in favor of same-sex marriage on different grounds. Hardway added these decisions up and divided by four, basically. She used the sex discrimination angle from Hawaii (Baehr or Dancel were discriminated against on gender since, had either been male, they would have been granted a marriage license); the equal protection for gay couples angle from Vermont (convicted felons and child molesters, the mentally handicapped and, under certain circumstances, minors, can marry in every state, but same-sex couples cannot); the adoption of children argument from Alaska (the state can’t deny the right to marry to couples, after ruling that these same couples are competent to adopt or procure custody of children); and, most recently, the privacy angle from New Mexico, which at long last questioned Bowers, arguing that in New Mexico, sexual acts of consenting adults in the privacy of their own homes are not subject to scrutiny, and that therefore same-sex couples are indistinguishable from opposite-sex couples on grounds of conduct. In each of the four states, referenda on same-sex marriage followed the state high court decision. Only in New Mexico did the court issue an injunction requiring that marriage licenses be issued immediately to couples, regardless of gender, who meet all criteria (consanguinity, age of majority, a properly witnessed ceremony by either a religious practitioner or a justice of the peace, proper identification, and remittance of the twenty dollar clerical fee). Thus began the Great Wedding March, during which 28,312 same-sex couples, including five Andrea knows pretty well, were joined in holy wedlock over three calendar years (7, 692 the first, 11,227 the second, and 9,383 the third, the fourth still in progress, along with the slow tapering trend. Andrea having attended two weddings the first year and witnessing first hand the enrichment of New Mexico by the approximately 300,000 wedding guests. She was among those who handed cash to everybody who had a bed to rent, could cook a meal, fly or service a plane, car, or bus, anyone who could grow a flower, manufacture or sell a t-shirt, serve a drink, or play anything from mariachi to bluegrass, Handel to Streisand, in a wedding band, to the tune of an estimated 1.1 billion. Not bad for a state of two million, especially for those ninety-five thousand in the tiny hamlet of Santa Fe, with its adobe building code, its art galleries, and its confluence of Native American, Mexican, and Western cultures, where an estimated 680,000 Southwestern influenced canapés were prepared and consumed during the eighteenth-month period.) Andrea points out the strengths and weaknesses of Hardway’s approach, which is a little namsy-pamsy on exactly why Aldrich and Day have the right to married status. In effect, Hardway has offered Patty a smorgasbord of approaches to take herself. A shadow falls over the screen.

“Andrea Yun?”

Andrea turns. Directly in front of the sun so that rays of golden light radiate out like those pointy things on the Statue of Liberty’s head, is her bike messenger. Andrea deliberately closes the Dell with a click and the tiniest reluctance, as she brings herself back to the surface. “Lois Express,” Lois says, bike balanced against her hip, Oakley’s pushed back on her forehead against her crew-cut black hair, carved arms delineated by the short mylar of her Kona jersey, powerful legs arranged as if to deliver a speech on an Elizabethan stage, right foot advanced and turned forty-five degrees. “How bout this day? Does it get any better?” She indicates, with two palms extended skyward, bike balancing in midair like a horse waiting for it’s rider, metal stirrups oscillating minutely in the sunlight, the May Dupont morning.

“Gorgeous,” Andrea says. Lois smiles, sending Andrea into a confused spiral.

“What you got?” Lois asks. Andrea’s heart pounds like a biker’s in the final laps of a criterion. Everything, she thinks. Nothing.

“I don’t know.”

“Wait. I’ve got a note.” She pulls her pager off her hip, hits buttons. “Keith says, Look in bag.”

“Okay.” Andrea thinks, I have a bag. She looks. There is an lavender envelope she has never seen before. As in a dream, she reads Lois Express on the front of it. In smaller writing, Open Me.

“Where to?”

“I don’t know.”

Lois scrolls down on her pager. “It’s says, Open here. she says. Without taking off her fingerless gripper gloves, she rips open the envelope and pulls out a sheet of flower petal paper. “Wow, pretty.” She reads for a while. “Nice poem. Who’s it for?”

Andrea nods. It must be a sonnet. There was a lot of whispering going on in the afternoon. They all know each other’s birth dates because Patty asked them to tell her so she could give them each a present on the day. Andrea thought Eve, Max, and Keith had forgotten hers.

“It’s for me. For my birthday.” Andrea takes the paper and reads the poem. It’s about love and messengers, and new beginnings.

“So I guess I’m not supposed to deliver it anywhere. Just to you. That’s nice. Where do you work?”

“At the federal courthouse.”

“What do you do? Who’s Keith?”

“I’m a clerk. He’s a clerk, too.”

“Yeah? My mother’s an executive assistant.”

Language, Andrea thinks, taking a swallow of chai and coughing because she’s forgotten how peristalsis works. Lois thinks I’m a secretary.

“I’ve seen you here. I saw you at the Shocked concert at Wolftrap.”

“That was good,” Andrea says, much too solemnly. Not yet able to apprehend yet that Lois is saying that, I’ve seen you before and liked what I saw. Andrea is choking.

“You okay?” Lois asks, lifting her bike onto the free corner of the bench with a single motion of her arm, the way a regular person would toss a sweater over the back of a chair, and coming to Andrea’s side. Andrea feels the warmth of the woman’s hip against her ear, before Lois thumps her, really very hard, on the back. At last the chai-soaked muffin hops out of her trachea and routes itself to esophagus.

“I swallowed,” the clerk explains, “wrong.” Lois nods and sits down on the bench between her bike and Andrea.

“Can I?” she says, picking up the hot cup. Andrea nods, and Lois sips.

“I love chai,” she says.

The Word

“What Leviticus really says,” Keith tells the Young Adults of Tuesday night Bible Study, “is that you shouldn’t have sex except for procreation. All the prohibitions against incest, bestiality, and homosexuality define the negative space of non-procreative sexuality around the core—the chewy nougat center, if you will—of procreation.” Anne is looking at him as if she’s just another Young Adult, not his wife. Chewy nougat center? He was just trying to be more colloquial. Meaning is never so elusive as when you’re talking about something you’ve been reading too much about to people who don’t know boo about it. From the playroom next door, where there is daycare during services on Sundays and now for Young Adult Discussion, comes the squeals of four toddlers and the steady wail of a four-month-old. Cheryl and her husband Frank, members of the study group, are child care tonight.

“In the middle ages,” Keith boldly plunges back in, “the Church became more and more anti-sex. There were hundreds of handbooks called encyclicals telling married people what they should and mostly shouldn’t do. First of all, they shouldn’t have sex on church holidays, of which there were about two hundred a year. Then they shouldn’t do anything just because it feels good. That meant no oral, manual, or femoral sex. It meant no sex after menopause, or during or around menstruation. It meant no birth control, obviously.” Femoral is just a test word to see if anyone is really listening. Bill Laskin, a graduate student in English whose wife is a consultant, is.

“Uh, you mean like the femor bone?”

“Femoral intercourse means between the thighs or against the thigh. In the medieval encyclicals, there’s a separate penance for each kind of intercourse, and that’s one of them. It’s not mentioned in Leviticus. None of this is.”

“And you’ve been reading about this stuff why?” Lisa asks.

“It’s this case I’m working on.”

“The gay marriage case,” Tonina Tomlinson prompts. Toni is an decorative painter—restaurants, fancy interiors of private homes. She and Keith talked about his work after The Historical Jesus session last Tuesday, for which she was Discussion Facilitator. She and Anne talk about shoes after every session.

“Yes. There’s this couple—“

“The novelist and the history professor, who are raising their sister’s baby,” Christine Alaimo, a physical trainer, interjects. Everybody knows the two charismatic men, and their story, from the media. But what do the members of the Young Adult Bible Study Group of the First Baptist Church on Wilson Lane in Bethesda think of a gay couple who wish to marry, who are raising a kid, and who want to pay just the same amount of taxes as if they were straight? This is one of the questions that Patricia Gibbons has asked Keith to clarify in Context. Gibbons wants to know, is the public ready for same-sex marriage? Because when the case gets decided in the Federal Court of Appeals for the D.C. Circuit, it will immediately be appealed to the Supremes, who seem likely to take it on. Gibbons wants to know what they will do with it and they, in turn, will want to know what the American public is ready for. The situation is analogous to the moment when the Court ruled that laws against interracial marriage were unconstitutional, even though seventy-two percent of Americans disapproved of interracial marriage. Folks came around. Will that happen again, or will their be a violent reaction? Keith is Gibbons’ young conservative source, who can illuminate for her not only the legal landscape but the social and political one, especially the values of the younger people. Has enough time passed since Baehr v. Lewin for Americans to get used to the extension of the word marriage to two men or two women? Did the New Mexico marriages, and all the media coverage, give the public the willies, or did it show Americans that the sky won’t fall after all? This week’s Bible Study topic, Lifestyles, is supposed to be about: (1) Christians who want to live together before they marry, and (2) Does everyone have to have children? But the evening took a sudden turn toward Keith’s secret inquiry when Lou, Christine’s husband, a veterinarian, said, Oh, Lifestyles. So tonight we’re going to talk about gay ministers. Lou never reads a word of the xeroxed handouts and Bible selections assignments that each week’s Discussion Facilitator brings to the session before the one they are going to facilitate, but that doesn’t stop Lou from participating with a vengeance. Keith is Facilitator tonight, so he feels he can hijack his own meeting, for which he got dealt a lame topic anyway, in the service of snooping. He found some passages in Merton and C.S. Lewis about seeking love in each encounter and how proof of God’s love is in the marriage relation, and he assigned chapters from Deuteronomy and Luke about married and single chastity, respectively. Anyway, before the tough question of whether two people who love each other can live together before they marry (Duh, No, not in the Christian tradition, remember that commandment about adultery?), Lou asked whether tonight’s going to be about gay ministers. Keith, who’s been working on the Aldrich and Day v. IRS bench memo nonstop (it’s due in a week), started talking medieval marriage, Biblical injunctions, and the regulation of sex by the Catholic church since Paul and Jerome.

“Yes, that’s the case I’m working on,” Keith says. “I can’t talk about the specifics, but I can tell you about all the stuff I’ve been reading along the way.”

“One thing I don’t get,” Anne says, “is that all these gay couples are raising kids. They don’t have kids themselves—well, two women do, sometimes. So aren’t they kind of procreating, doing all that work and giving their kids all that love?”

It’s always good to have a ringer in the crowd. Anne knows Keith’s hidden agenda, so she picked up the pro-gay parenting ball and just ran with it.

“I think it’s more like gays are stealing kids from normal people,” Marisa, a web designer who’s one of the singles in the group, pipes up. Marisa never looks at any one when she’s talking, even if she’s answering one particular person, as she is now. She looks a few feet over Anne’s head, as if at a computer screen. “I mean, they don’t ever have their own babies. Unless they’re like lesbians and get sperm from a bank or whatever. Even then they’ve scored someone else’s sperm.”

Scored? Keith thinks.

“What about parents who adopt?” Nadine Haas asks. Nadine’s a social worker who works at Suburban Hospital, and another single. The Young Adults is half show-off-your-baby-in-their-new-outfit, half meet-a-mate. Nadine’s sister has two adopted children. “Are parents who adopt just stealing somebody else’s kids?”

“No, because they tried and just couldn’t make their own baby. And they got a baby that nobody else wanted, so they didn’t steal it.”

“So you’re saying,” Keith heads off a fight, “that it’s okay to raise children that you don’t biologically produce, as long as you try to produce children first.”

“Yeah.”

“Well, that’s kind of the traditional Protestant view. That sex doesn’t have to only be about procreation, as long as it bears a clear relation to procreation.”

“Huh?” Marisa says.

“That’s law talk, K,” Anne tells him, and everyone’s smiling at them, because she’s using a nickname in public, and because she’s gently pulling his leg, as if he doesn’t know when he’s speaking in the language of what he’s been reading.

“Okay. The Church has never been able to make up its mind about priestly celibacy. Until the first Council of Toledo, there was no clear directive. Priests throughout Europe were able to marry or to take concubines throughout Europe. The Council of Chalcedon in 451 imposed celibacy on deacons, priests, and higher offices. It wasn’t until the twelfth century that the matter was resolved, and even then, things got ugly. The Bishop was driven from Notre Dame by the priests and beaten almost to death. John of Rouen was stoned when he announced the new laws.”

“What does that have to do with procreation?” Anne steers him. She’s his handler.

“The Church won the day, and priests were officially celibate from then on. With the Reformation, Calvin and Luther both felt that all the restrictions on sex were excessive, that these were the source of much corruption and hypocrisy. They said clergymen should marry, and that married couples should enjoy companionate sex, meaning sex that would make them closer, establishing a harmonious relation between husband and wife.”

The Young Adults number eleven on this particular Tuesday. There are nineteen of them on the books, but there haven’t been more than fifteen since the first week. The discussions are rap sessions in which everyone expresses their feelings about how to reconcile bad events with a just and merciful God, that was the first week, or whether we have the right to decide to abort a child, that was the second week, or what Christian charity means in the home and in business. The Bible is rarely referred to, except by Kyle Torke. Keith’s session is more like an impromptu lecture, and his ability to remember names, dates, and passages, is making a bad impression. He usually hides this freakish skill under a bushel by looking down at notes that he’s not really using, but since he’s off topic and doesn’t have any notes, he just has to spout. He’s also getting that from a book way of talking that he can usually pass off as reading from a page. Now he’s being exposed as the idiot savant he is, one who thinks in paragraphs, complete with colons and semis.

“But the Protestant clergymen, like the rabbis, insisted that the only valid sex act was intercourse, the going through the motions, literally, of making a baby. The question is this: How closely does sex have to be linked to procreation? The contemporary Protestant churches elevate intimacy and companionship in marriage; modern ministries see sex as a means to this important end. Loving couples raise children in stable, happy homes. Sex, in other words, has its own validity outside of procreation. Whereas Marisa is suggesting that this is not enough, that gay couples, who can’t produce children themselves, are in some way poaching on straight people’s territory when they raise children and, perhaps, when they engage is sexual intimacy as a component of their loving.”

“I didn’t mean that,” Marisa says. “Sex is beautiful. It’s natural.”

“Gay sex too?” Doug Wood, a county zoning guy, asks.

“Well, I don’t want to watch them do it,” Marisa says. “But sure, it’s beautiful, I guess, to them.”

There is a spate of nervous giggles. “What do you think, Kate?” Keith asks, belatedly taking up his role of getting everybody to talk.

“I think it’s time we let gay people be like everybody else,” Kate McIlroy says. She’s from Georgia and always does her down-home-mom-with-an-attitude, I-just-say-what-I think thing. “Let gays and lesbians have boring marriages, messy divorces, PTA meetings to attend. Let them drive kids to soccer and swimming and games in the afternoons and on weekends and to church every Sunday morning, instead of shopping for clothes, decorating, working out, and cooking really well the way they do so they can lord it over straight people. Let them hold up their end of boring old America, and stop being elegant.”

“Okay,” Keith facilitates, “But what I want to know is whether you think that procreation is the only reason for sex.” It’s a set-up, and Keith feels momentarily bad about it.

“It sure is in our house,” Kate says, giving husband Ralph a sharp elbow. Ralph grins sheepishly. Ralph never talks, just grins sheepishly and admires Kate. “We always thought we’d get back to it once Kevin was born and we got through his first year and I healed up, but then Ralph bought a computer, and I can’t get him back into the sack on Saturday mornings, even when Kevin’s watching Beast Wars and wouldn’t hear me if I spoke in tongues. Ralph’s got his Cherokee discussion group now.”

“Ralph?” Keith asks politely, but Ralph just grins sheepishly, his arms crossed, his legs stuck out in front of him. He customizes his jeep and works for his father’s candy and tobacco warehouse in Silver Spring. He thinks his wife is just too much, wonders how he married such a firecracker, and is sure that she says enough for both of them.

There are no openly gay Young Adults, but there are a couple of lesbian middle-aged adults, Nancy Lord and Laura Cooper, who have lived in the same small house on Moorland for fifteen years. They are the congregation’s real subject whenever gay marriage comes up in the church, and the line in Pastor Richard Delaney’s sermons is one of tolerance within discretion, acceptance bracketed by silence. The gay, this is Pastor Holmes’ phrase, his invention as far as Keith can tell, a designation at once modern and indecipherable to the young children, the gay among us should be, if not loudly welcomed, quietly admitted to our hearts. In gratitude for this tentative embrace, Pastor Holmes expects that his two, should work extra hard, do voluntary office work, update mailing lists and seal envelopes with glad hands and tongues, and should contribute the full tithe of their double incomes (Nancy is an optician at Four Eyes, Laura a travel agent in the Galleria, which they don’t need for the children they don’t have.) Not surprisingly, Nancy and Laura are the only representatives of the gay in the First Baptist family, because who else would accept that kind of grudging acceptance?

“Kyle? Do you think gay folks ought to be able to marry?”

This is a timed choice on Keith’s part. He knows Kyle will do exactly what he does now: clear his throat, open his Bible, and disagree. Kyle is as predictable and exciting as Friday afternoon slowdowns on the Dulles access road. He reads from the Epistle of Paul to the Romans, the business about the men who leave the natural use of the women to burn in their lust one toward another, men with men working that which is unseemly, in their own vile affections. Kyle then pauses dramatically, as if this passage speaks for itself. He clears his throat a few times and, tilting his head way back so his glasses reflect the long florescent lights overhead, says, “Homosexuals shouldn’t be given the sacrament of marriage. They can’t help it, they’ve got a gene plus a chemical in their brains. But that doesn’t mean they should get a crack at our most sacred institution, the bosom of the family.”

Keith has to do one of those turn-the-head-to-the-side, lift-the-arm-as-if-to-wipe-the-mouth maneuvers to hide the smile that this little exegesis brings on. He knows if he looks at Anne he’ll be lost, so instead he stares at the wall, where there’s a map of the Middle East, all colored in with markers and historical arrows. How had he been such a good church going boy? Recently, already in law school and especially since his clerkship, Keith finds going to church an exercise in sociology. He hoped that by joining the study group, he could rediscover some substance beneath the rituals, connect with the people his and Anne’s age. But study group has Kyle in it, and Kyle, who identifies himself only as an day trader, says things like what he just did, all the time. It looks likely that he and Rita Michaels, another of the singles, will marry. The last thing Keith wants to know is whether they are planning to live together or have sex before their wedding night, which is another reason for steering tonight’s discussion away from its scheduled topic.

“So,” Keith says finally, testing his voice before he proceeds and still looking at the wall, “you think homosexuality is not a basis for a companionate marriage.”

“Sodomy is an abomination.” Kyle flips through his Bible until he finds I Corinthians, 6: some verse or other, the one about how neither fornicators, adulterors, effeminates, nor for that matter abusers of themselves, drunkards, or extortioners, shall inherit the Kingdom of God. Hell, it is a Bible study group, and so Keith nods appreciatively, as if he had been hunting all night for just this nugget of scripture. He and Anne find themselves reluctant to go to church on Sundays. There’s just not enough time, what with shopping, trying to get over to the Planet Fitness to work out, one at a time, the other at home with Lannie, or over to Edgemore Club for tennis when it’s warm. There’s Redskins games during the season, take-home work for Judge Gibbons, family phone calls, housecleaning and yard maintenance, goofing off time. When Keith was growing up in Manassas, he felt like the Church of Christ, his father’s plain wooden sanctuary that looked like an especially well-maintained barn, was a second home. In a way it was, since his family spent almost as much time in the building as in their own rented house. They knew every square foot of that structure: the attic full of boxes of battered hymnals and moth-eaten choir robes, the basement with it’s loud donated refrigerators, it’s library of religious children’s hardbacks, the Christian Adventure Series and Thoughts For A Starry Night books, soft and dog-eared from decades of tired, itchy, trapped kids on Sunday mornings, reading them, using them as building blocks, or throwing them at each other; the little playground with its wooden jungle gym half-sunken into the sandy earth, the smell of the pines all around, the tiny field that once had a blacktop, sunken down into the soil, just spots of asphalt still visible. His father, Jack to everyone, old and young, in the congregation, presided over the big barn, the playground, and the woods beyond. Church of Christ was Jack’s domain, and God’s, too. Keith knew this as a child and as a teen. He felt the goodness of the church, where lonely people came for prayers, for family Friday and sisterhood Saturday suppers, for knitting, bingo, Bible study, to organize benefits for the poor of Prince William County, to put together meals-on-wheels, for Christmas and Thanksgiving dinners. This was the church that Jack built, where the seventy-somethings whose kids were grown and far away, or were close by but had no time for them, came and were treated respectfully, watched over, visited when they were sick. This was the Church of Christ where June Lewis, pregnant and abandoned when Ned Martin ran off to be all that he could be, was given a place to live by the Lynns, in the guest house behind their big house on Sweet Creek Road, given a job at a gas station by the Petersons, given maternity and baby clothes and encouragement by all, given a baby shower by Laura, Keith’s mother, and given a day of victory by Jack with his usual flair, the sun streaming behind June, after the second full-choir selection, Our Faith in Thee, June surprising the congregation by appearing from nowhere and walking down the aisle like a bride, her newborn asleep and lovely in her arms. That was Jack’s, this was Keith’s father’s church, a world unto itself presided over by a good man. Keith was fulfilled there and found useful purpose. But since college, he has been unable to locate himself in church again. Services at Georgetown in Hoiden chapel, interdenominational to the point of blurred McHoliness, always felt more like a project in inclusive theology than an authentic ritual. There was a calculated academicness to each prayer, each homily, a touch of aren’t-we-smarter-than-regular-folks, that dismayed Keith. He always told himself that when he and Anne had chosen a community in which to make a home, when he was married and a father, he would discover a new Church of Christ, equal to his father’s church, a place where he would want to be when he wasn’t in his own house, a place where extraordinary things occurred everyday. But that just didn’t happen at First Tabernacle in Bethesda, even though First Tabernacle belonged to the same convention as Church of Christ, the hymnals the same, just an edition newer, the people essentially the same. The fact is Keith himself has changed. There’s nothing wrong with the church itself, nothing so different from his father’s church, here in the basement where the children play during services, upstairs in the boxy sacristy, fancier than Church of Christ, with mohagany and better stained glass, padded devotionals and a discrete two-tiered sanctuary. Yet Keith himself doesn’t find the intimacy, the easy exchange in the church that he finds at work. In chambers with Max, Eve, and especially Andrea, the courthouse is for Keith what church was ten years before. He and Anne have their own rituals, their own ways, spontaneous prayers of grace before each meal, hands joined, heads bowed, graces Lannie and eventually his sister or brother will contribute to. Keith and Anne have their own blend of Baptist, Catholic, and Lystad-family traditions, the tiny tree bought right after Thankgiving and decorated with Anne’s handmade ornaments, Easter at her sister Bonnie’s, all the kids roaming the lawns of the fancy Leesburg house in bunny costumes, the odd sacrifices for Lent (the comedy channel, buffalo wings). Keith understands that, no minister himself, he cannot give Lannie the church home his father gave him, but he hopes to give him something equal to it.

“An abomination,” Keith hears himself saying now, to Kyle’s bearded face. Keith has always been suspicious of men who try, with beards and loose clothing, to look like patriarchs. He suspects such men of wishing they had a tribe to boss around somewhere. “Many acts are described as abominations in the Old Testament, the eating of unclean meats, for example, and intercourse with foreign women.” Kyle straightens up, his mind racing, Keith knows, with chapter and verse. He heads him off at the pass. “Let’s get back to tonight’s study questions. What is a Christian lifestyle? Do all married people have to have children?”

It’s eight forty-five. Adult Discussion and Bible Study enters its final free-for-all, the topic of the day disappearing into a swirl of anecdote, conversation, and random sequeway.

“When I was a girl at St. James,” Anne is saying. She’s bailing Keith out, as usual, lightening the mood. “The sisters who taught religion kept talking about giving up one’s soul to Christ. It wasn’t till third grade that I realized they were trying to tell us that we didn’t have to get married and have kids, that we could become nuns and that would be better.” Everybody laughs.

“I had Sister Ruth in sixth grade,” says Debbie Downing, the other lapsed Catholic in the group, and now a securities analyst in the Air Rights building. She and Anne go off onto one of their Catholic girl reminiscence riffs just about every week. “She tried to get me to feel sorry for my mom cause she wasn’t a virgin.”

“No,” Anne says.

“I was cleaning erasers for her after school and she said, Don’t you wish your mother hadn’t fallen into earthly entanglements?”

“No.”

“I swear.”

The men wiggle in their chairs, tug at their khakis and glance at their watches. The married women smooth their skirts, uncross their calves, and prepare to take charge of the toddlers, who careen in post-bedtime exhaustion around the playroom. Cheryl and Frank are clearly fading. Singles eye other clandestinely, Karen Messenger wondering if Russ Pierce is going to walk her to her car in the public parking building on Cordell, offering him this honor with a glance, Tina McMurty treading the invisible starting blocks beneath her folding chair, in order to rise at the first possible moment and ask JJ Sutherland if he wants to go get a beer. Rita and Kyle, the latter stroking his beard, the former giving a pat to her graying pageboy, pretend that the fact that they arrived together in Kyle’s burgundy Seville, parked a few blocks away on Exeter, is a secret they must guard by avoiding each other until the leave the church grounds. Thus life supplants philosophical debate, Keith reflects, his facilitation at an end.

What Keith has to report to Judge Gibbons is that the basement is not the sacristy, and that while Pastor Delaney may well represent the over forty-five crowd, he himself being fifty-something, with a long face and a thatch of hair dyed the same color as his shoes, the Young Adults are ready to consider the concept of same-sex marriage. Whether it was the AIDS epidemic and the subsequent understanding that the gay are not only all around us, but a lot like us, or whether the great fin-de-siècle Prominent People Outing penetrated the television and talk-show fortress of middle American consciousness, it seems that something happened that made people now in their late twenties a lot less scared of the gay. Which is not to say, Keith will write, that many of these people would not vote against the extension of the right to marry to homosexuals, or that they would not prefer a congressperson or senator who opposes such action. But it is to say that, if the Supreme Court tells the people with a clarion voice that the law of the land is that marriage licenses are now available to the gay, they, the young, won’t take up and bear arms to fight about it. They might, like their parents a generation before, when the first black-white couple walked into their favorite restaurant or bought a house in their subdivision, allow themselves a nasty joke. They may wonder out loud which one is on top, wonder who wears the pants, etcetera. But they won’t burn crosses on newly fertilized or raked lawns. They won’t fire shotguns through picture windows. Instead, in Keith’s informal opinion, the church-minded young will take a long look at that man and man, or woman and woman walking the dog along Huntington Parkway, leading their children by the hand to the bus stop—the young will look, sigh, shake their heads, and feel modern.

The Cure

Eve lies in bed eating one Lindt truffle very slowly, petting Club Med’s silken white belly, and rereading Remedies. She found him at Cozumel, or rather Club Med found her, settling his golden, faintly striped self down beside her during yoga on the beach, and purring in time with Eve’s own dirgawasam breathing. It was tedious getting CM back through customs, but Gordon speaks Spanish and gave away a hundred dollars in gratuities. Now CM stretches as if to say, Aren’t I magnificent? before tucking one arm over his eyes, as if to say, What the hell time is it, anyway? It’s 2:38 in the morning. Remedies sounds like Herbal Cures but actually means suggestions to Patty as to what she might rule that would satisfy the issues raised by the Aldrich and Day v IRS.

Eve is awake because she’s alone, except for CM. She doesn’t sleep well alone anymore. The fun went out of it on or about her twenty-fifth birthday, when onsets of the lonelies began not keeping her up (she always drops right off) but waking her up in the middle of the night. It’s as if she’s suddenly aware that no one’s there and she wakes up thinking she should go find him. But who? Gordon sleeps over on weekends. But it isn’t Gordon who’s missing, Eve’s quite sure, because when he’s there and CM is exiled to the floor, Eve still wakes up looking for someone. She needs to sleep with more men, to find out whether the problem is endemic. The last men she slept with who weren’t Gordon were Tad Vagnetti, her law review co-editor, and Seth Levin, her aerobics buddy, playwright, performance artist and body builder who was so strong his old girlfriend Sara, another law student, called him The National Endowment. Back then Eve was rarely subject to the lonelies, whether she was sleeping with one of those boys or alone. She was trying to sow her wild oats as neatly and efficiently as possible, as she and Alice Flaherty have determined, so she put Gordon on hold, went off to fulfill her obligation to independence and sexual freedom, and then planned to take Gordon off hold and marry him. Neither Tad nor Seth proved substantial enough, despite the one’s intellectual and the other’s physical gifts, to displace the idea of waiting Gordon, and at night sometimes Eve would wake up and play with Tad’s long hair or Seth’s shaved scalp (she slept with them both during the same year of freedom, though not of course on the same nights, and not without informing each of the other’s existence) and wonder what she was looking for that wasn’t right here beside her. She tried to tell Gordon what she was going through, but each time she got started, whether they were on the phone or face-to-face, he began singing The Battle Hymn of the Republic until she desisted. He just didn’t want to know. Eve would wake up and play with Seth or Tad’s heads, or gently pat their bottoms through the bedclothes, in more or less the same spirit she now wakes up and pets CM, with the critical difference that CM is the most magnificent and perfect creature on the planet, what with his bold sunny coat, his big copper eyes, and his extra-wide all-weather paws. Still, other men must be the key. Maybe Max, who since clerkship often accompanies Eve on her midnight watches, appearing as soon as she awakens—an image of him slouched in chambers reading, then looking up at her with that off-center smile, or a memory of some particular bit of nonsense he said that day—maybe Max is the man she’s got the lonelies for. Eve knows she really should break up with Gordon and try Max, but how? She has already told Gordon he can propose to her, or at least she didn’t tell him he couldn’t when he asked for her ring size, which amounts to the same thing.

Remedies. She scrolls through noting the sections that are done, ignoring those that are kind of a mess. Presenting the issues that have been left unresolved by Hardway is Andrea’s job in Facts. Super-efficient, goodie two-shoes Andrea polished a draft of Facts clean enough to eat off of a full ten days before deadline. Eve read said draft three days ago, supposedly editing it to help Andrea, but really just rolling her eyes over the teacher’s-pet precision of it. Andrea, after poring over the minutes of the lower court trial and reading the new briefs, determined that Hardway did a solid, old-fashioned job from start to finish, with only a few goof-ups, hesitations and questionable rulings, easy enough to spot now but that were understandable in real time. What Hardway didn’t do, and here Eve takes the judge to task in a step-by-step, best-student helping-less-gifted-student style that is infuriating in its correctness and pickiness, was answer D.C.’s defense that, under the public policy exception to full faith and credit, the city has no obligation to accept as valid a marriage of two men . Further, that under DOMA, the district is free to treat as null and void such marriages. Nor did Hardway convincingly answer the I.R.S. defense that it has no power to accept a joint filing from two individuals whose marriage is not recognized by their state of residence, even if, as the I.R.S. admits, the agency would prefer to recognize and start taxing at a higher rate all the same-sex couples’ who marriages are not recognized in their home states. Hardway did not answer the oldie but goodie arguments, trotted out by Walsh and Holmes, counsels for D.C., that by long-standing cultural, legal, and religious definition, two individuals of the same sex are incapable of marriage. Nor did Hardway face squarely Walsh and Holmes’ attack on the appellant’s expert testimony, which relied on psychological and sociological studies which, in turn, attempt to demonstrate that children raised in homes by two parents of the same-sex are no more likely to suffer from unstable gender identity or other problems in childhood, or to become homosexual or bisexual in adolescence and adulthood, than children raised by different-sex parents. The studies, claims counsel for D.C., are flawed, have been conducted over insufficient periods upon too small a numbers of subjects. The bias of the researchers and of families also throws the results into doubt.

And so on and so on, Andrea noting the judge’s lapses with the patience of a elementary school teacher enumerating demerits. Holding Hardway’s cardinal boo-boo in reserve until, in her final section, Andrea points out that Hardway left to the Court of Appeals and the Supreme Court the hassle of confronting DOMA and the adjacent full faith and credit and choice-of-law mess. Choice-of-law, which concerns itself with conflicts of jurisdiction, is in crisis anyway, leaving aside same-sex marriage. Eve’s advisor at Yale, Eric Gould, refered to choice-of-law jurisprudence as anarchy disguised as chaos. DOMA raises the stakes and shortens the period during which the whole gnarly Gordian knot can be decorously stuffed behind the state and federal courts’ collective bench. As Andrea admits on Hardway’s report card, it is not entirely clear that in this case Hardway was obliged to do much with choice-of-law, since neither Christenfeld and Kupferberg, counsels for Aldrich and Day, nor Walsh and Holmes, wanted to go there. Both sides were hoping to win on the substantive and procedural due-process issues that had already been well mapped-out in state litigation, where sometimes the pro-same-sex side, sometimes the anti-, prevailed.

Eve gets up, causing CM to rise, arch to his full height, and come into full wakefulness, eyes opening wide, then narrowing to slits against the overhead. Together woman and tom head to the kitchen to fetch another chocolate, a glass of kiwi sparkling water, and a couple mouthfuls of Science Diet seafood medley, respectively. Then it’s a quick pee, Eve while scanning the Times magazine and glancing at the all-but-complete crossword puzzle (key being a nine-letter epithet for Robespierre, beginning with a k), CM pausing on the threshold of the hooded litter box by the shower (a box which, as indicated by CM’s reluctance to enter, and his meaningful glance toward Eve upon hastily exiting after evacuation, needed to be changed yesterday). Back to bed, Eve thinking about what Max said about, or rather to, CM, upon first meeting him (“You the mammal,”) and telling herself that tomorrow she really has to figure out some way to tell Gordon that, what? She’s not ready? When will she be ready? Not the right woman for him? Gordon begs to differ. That she doesn’t love him? She does love him, always has, since she first saw him standing at the bus stop before his first seventh-grade morning at Pyle, his family having just moved in from New York, with his sleepy eyes and his long skinny body, the kind that the muscles catch up with in ninth and tenth grade. Should she tell him that she wants to sleep with Max to see whether she still gets the lonelies when he’s in bed with her? Gordon won’t hear that. He’ll sing the Battle Hymn. She nibbles another praline and decides to forget about the whole male question for ten minutes, or a year.

Facts will take over Remedies if she lets it, and Andrea will end up the star of the memo, the one Patty relies on in her decision. That can’t happen. Eve scrolls through the section in which she takes account of Andrea’s labors, telling Patty, yes, we really should give more weight to this and that defense, even if we dismiss them in the end. For instance, the definitional argument is circular and based on non-current usage. For instance, the studies of gays’ kids not becoming gay (as if that would be the end of the world anyway) aren’t great, but they’re a start and there’s no way to have long-term studies of new situations. Now for the real Remedies, the part where Eve takes center stage, what could be called What The Hell Are We Going To Do With This High-Profile Politically Explosive Case Anyway? in twenty-five pages or less. The two briefs the four lawyers turned in, on April Fools Day as it turned out, bear little resemblance to their positions in the trial, because when Hardway ruled for the plaintiffs, he left DC/IRS nowhere to go on appeal except to the full faith and credit issues they had barely mentioned (just enough so that they can now trot the material out without running into the no-new-issues-on-appeal wall). The plaintiffs, in turn, have no choice but to reply to the extensive new choice-of-law material in the appellants’ brief with their own lengthy counter-claims. What Eve is saying, in the direct, almost anonymous, one-foot-in-front-of-the-other style that she forced herself to acquire in law school, having made it through a social-studies thesis at Harvard without losing her chatty, non-standard syntax, only to find that now she is terse and direct even in her email—what Eve tells Patty is that, at long last, DOMA is on trial. Everybody’s been dancing around the damned law for more than a decade, same-sex marriage strategists guessing that, if a challenge reached the Supreme Court, the Supremes would back up Congress to the extent of allowing the law to stand, setting the cause of same-sex marriage back on its ass for decades, and anti-same-sex marriage strategists knowing just how hollow a pony, constitutionally, DOMA actually is, not wanting want to push their luck by calling on any state to make use of DOMA if they don’t have to. The Great March put an end to this uneasy armistice when Aldrich and Day got married, returned to domicile, and were recruited by the liberal law folks. Two righteous men with the child they have selflessly raised. Finally, the fun can begin.

CM stretches out, like a torpedo-shaped water bottle with ears, and settles on Eve’s leg. Eve sees only the tips of his ears and occasional semaphoric tail (high question mark left, waving right, as in How’s it going? You don’t feel like turning off that fucking light and going to sleep anytime soon, do you?) behind her Dell, but she feels the delicate vibration of purring, and for a moment she goes giddy with bliss. She feels the just resistible urge to move around, screwing up CM’s position and jeopardizing her own happiness. After a minute she does, but CM rises and settles, recreating the buzzing weight that only he can ever be for her. If only CM were five-foot-three-inches taller and had a job in the six figures, Eve would happily tell human males where to get off.

3:56. Eve worries paragraphs, trimming, cut-and-pasting, banging out a new sentence or two when the spirit moves her. The state has only two leaky justifications for DOMA and it has fallen on the lawyers for D.C. and the I.R.S. to offer them up. Walsh and Holmes argue that the Effects Clause (And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof) authorizes Congress to tell states what laws and judgments of other states they can ignore. Just cause Congress never enacted a choice-of-law rule before, faced with slavery, abortion, interracial marriage and such like, doesn’t mean they can’t do so now. The second argument is that, quite without Congress’ intervention, state courts may continue to apply the public policy exception to full faith and credit to decide whether to honor marriage licenses issued in other state, when such instances are deemed to violate some prevalent conception of good morals, some deep-rooted tradition of the common weal (Cordoza) of the forum state. In other words, just as states may reject the validity of bigamous marriages established in a foreign country, or marriages within a degree of consanguinity deemed improper and dangerous, second cousins say, states may deny the validity of marriages of same-sex couples performed in sister states. In your face, same-sex people. We say you can’t marry because it’s wrong in the eyes of most people and their duly elected representatives and that’s that.

Enter Aldrich and Day, with their posse, Christenfeld and Kupferberg, who now argue, in addition to their earlier equal protection and anti-discrimination claims, that both DOMA and the public policy exception to full faith and credit are unconstitutional. Just like that, the same-sex cowboys pull out big guns and start blazing away, bam bam bam. DOMA they say is no good for two reasons, because Congress is infringing on states’ rights by limiting the sphere of laws, and because the intent of the effects clause is opposite to its interpretation in DOMA, the Framers having meant to allow Congress to refine and implement the basic obligation of full faith and credit, not to relieve states of their responsibilities under it. While the public policy exception is unconstitutional because, despite long-established use, it’s inconsistent with the intent of full faith and credit. This argument, fleshed out by Larry Kramer at the turn of the century, does not deny states power to reject other states’ laws, but insists that they must do so with a rational interest, rather than simply as an interpretation of public policy. Similarly, Christenfeld and Kupferberg whack the “better-law” approach, along with the public policy approach, long used to resolve choice-of-law conflicts in some states, as another discriminatory judicial practice, long winked at but basically unsound. There’s at least three Supreme Court cases in one with Aldrich and Day—two choice-of-law, and one DOMA, is what Eve is telling Patty. Eve’s going to suggest Patty just go for it, rule with Aldrich and Day, and let the Supreme Court, which since the arrival of Tribe has shifted center, figure out how to separate full faith and credit issues from the discriminatory ones. Eve knows she should call it a night, and in the morning she’ll see her way to a less radical suggestion, one that Patty can more easily persuade Whitney and Semmes, the other two judges on her panel, to undertake.

She powers down the notebook and turns off the lights. At once she sees Max, walking down the corridor between the elevator bank and chambers with a cup of coffee, his strides unhurried. In her waking dream she is looking at Max from Patty’s doorway across the library, but Max doesn’t see her. He’s looking at the tips of his shoes. Then he looks up and sees her, all of her, his whole attention suddenly hers. He adjusts his path infinitesimally so that he is walking, just walking, straight towards her.

END PART TWO