Friend of the court

Playwright and writer Topher Payne

SCALIA: When did it become unconstitutional to prohibit gays from marrying? Was it always unconstitutional?

OLSON: When we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that –

SCALIA: I see. When did that happen? When did that happen?

OLSON: There’s no specific date in time. This is an evolutionary cycle.

SCALIA: Well, how am I supposed to know how to decide a case, then, if you can’t give me a date when the Constitution changes.

TOPHER: If I could interrupt for just a second-

SCALIA: Who are you?

TOPHER: I’m Topher Payne, I’m here to represent gay people.

SCALIA: You can’t represent gay people.

TOPHER: If those four assholes can represent California, why can’t I represent gay people?

ROBERTS: That’s true. We set precedent here.

KAGAN: Oh snap! Scalia just got burned.

TOPHER: The desire for the legitimacy marriage provides is not, as has been implied here, newer than cell phones and the internet. And by the way, Alito, that was a total dick thing to say.

ALITO: Gay marriage, cell phones, internet. I was just giving a list of scary things I don’t understand.

TOPHER: I know, and I hate that for you. The reason you don’t see same-gender couples trying to get married throughout American history is because up until fairly recently, that would have been admitting to sodomy.

And sodomy was illegal, until this court finally got the word out that it was totally cool. Well, not Scalia. He really wanted to keep locking people up for blow jobs, because he was worried it would lead to us wanting to get married. And now, here we are, so good call there.

SCALIA: I told you! I told all of you!

TOPHER: We have always wanted to get married. We have always wanted to live open, authentic lives, and to have those lives legitimized and respected by our communities.

The American tradition is based upon a specific model: Straight white guys get what they want, and everybody else has to fight like hell. And when a group of people who aren’t straight white guys builds enough numbers to demand respect, they always end up here, in front of you.

And the Supreme Court has a pretty spotty record with regards to the rights of people who aren’t straight white guys. You tend to drag your feet on the early cases, and then you finally do the right thing and pass a decision which results in major social change.

I have been married to my husband for almost four years. My Massachusetts marriage license is not legally recognized in my home state. It has a ripple effect on every single aspect of my existence, but the most devastating is also the simplest: My fellow Georgians have been told, by official order of our state and federal government, that my relationship is worthless.

You talk about the turning tide of public opinion, waiting for people to catch up. Plenty of people don’t want to, and the law of the land says they don’t have to. So we are marginalized and summarily dismissed. And that sucks.

Justice Scalia, in answer to your snotty rhetorical question, there is no date when the Constitution changed. But marriage did change. That’s why women aren’t property of their husbands anymore, and interracial marriage is allowed.

We grow, we learn, we do better. The first time a gay couple was brave enough to apply for a marriage license, and that license was denied, it became unconstitutional. You have a choice. You can be another one of those chickenshit courts who places the needs and comforts of straight white guys above all else, or you can do what is right, and make history.

ROBERTS: Mr. Payne, you’re out of time.

TOPHER: Sure, just one more thing. Hey, Justice Thomas. Knock-knock.

THOMAS: Who’s there?

TOPHER: Nobody. Just seein’ if I could get you to talk.


Topher Payne is an Atlanta-based playwright, and the author of the book “Necessary Luxuries: Notes on a Semi-Fabulous Life.” Find out more at