Zack Ford, writing for ThinkProgress, has a great piece about the upcoming US Supreme Court hearing of two same-sex marriage cases. While neither case directly asks this question, he argues that the answer is precisely what will come from the court’s efforts.

Next week, the Supreme Court will hear the oral arguments on two legal challenges to laws that limit the government’s recognition of same-sex marriage. While there are various legal nuances to how both the Defense of Marriage Act and Proposition 8 cases might be decided, the Justices will actually be weighing a more fundamental question: Do gay people exist?
At the core of conservatives’ argument against marriage equality in both cases is the idea that gay people actually do not exist — only “homosexual behavior” does. In House Republicans’ final reply brief filed this week against DOMA, attorney Paul Clement argued that “sexual orientation is defined by a tendency to engage in a particular kind of conduct.” Proponents of Prop 8 similarly suggested that “sexual orientation is a complex and amorphous phenomenon that defies consistent and uniform definition.” The U.S. Conference of Catholic Bishops added in its amicus brief that homosexuality is a “voluntary action” just like polygamy. In other words, people are only really gay when they’re having gay sex — otherwise they’re not.

While I get his point, and actually agree with him, I’m glad that “our existence” isn’t the primary basis in either of the two cases before the courts. In the DOMA case, the question of our existence is already answered, as a number of states issue marriage licenses already to same-sex couples.  In that ruling, the real question before the court deals with what purpose is there for the Federal Government to discriminate against same-sex couples who the States have called legally married. And, in the other case, concerning Prop 8, the real question is about if a can by referendum take rights away from a group of citizens that they at one time constitutionally had.

Still Ford is correct:

The end result of these cases will determine the legality of same-sex marriage, but for the first time, the Court could actually acknowledge that gay people exist and thus deserve protection under the U.S. Constitution. On both a symbolic and legal level, the latter victory could be much more significant.

This acknowledgement that we exist will lay a groundwork for the passage of ENDA, the Employment Nondiscrimination Act as well as other efforts.

But here is my problem with the focus on this question, do gays and lesbians exist. Does it set the stage for Sexual Orientation to be understood as only being about Gay/Lesbian and Straight? Truly, sexual orientation is complex, and orientations are situated at various places along a spectrum from exclusively heterosexual to exclusively homosexual. We shouldn’t let our opponents control the understanding of orientation, as if it were straight or not straight. Discrimination against same-sex couples, is at the core, gender discrimination, demanding that the gender of each partner be either male or female.

Here is my other concern. Is it also possible for Gender Expression and Identity to become invisible as important parts of the LGBTQ community, if we have success at showing that gays and lesbians exist?

In the end, two court cases will address two sets of more narrow questions, but through the process, broader, more foundational questions will arise and be given worth.The outcomes will not only impact what is connected to these two specific cases, but many decisions surrounding gay, lesbian, bi, trans, and queer rights as well.