President Obama, Gay Marriage, and a Thank You to Mom

In the Nineteenth Century, women had few rights: they could not vote (something they still could not do two decades into the next century), own property, or even sever ties from an abusive husband. They had few, if any, sexual rights at all. It made sense, then, that the women's movement started as a quest for sexual freedom, the most important of which was birth control.

According to Professor Nan Hunter, Margaret Sanger transformed birth control into a social movement. She developed the legal strategy against contraception bans as both a health care issue (physicians need to be able to prescribe these tools to women to protect women's health) and an anti-obscenity crusade (states used obscenity rules to prevent doctors and others from even discussing issues of family planning).

Margaret-sanger-1-sizedIn 1916, Ms. Sanger opened the country's first birth control clinic in the Brownsville section in Brooklyn. An overwhelmingly black neighborhood today, Brownsville in 1916 was largely Jewish, always radical, poor, and crime-ridden (the infamous Jewish crime syndicate, Murder, Inc., started in Brownsville). Ms. Sanger's clinic catered to all comers, but Sanger made a particular plea to the poor: "Mothers," she announced, "Can you afford to have a large family? Do you want any more children? If not, why do you have to have them? … Safe, harmless information can be obtained by trained nurses. … All mothers welcome." In 9 days, 464 women visited the clinic; on day 10, police arrested Ms. Sanger for violating New York's obscenity laws.

Obscenity laws banned conduct and certain speech that was contrary to public morals. But, in addition to being statist and oppressive, they were discriminatory: New York's law, for example, included one small exception for physicians to discuss and provide contraceptives to prevent or cure "disease," but the provision had always been interpreted to apply only to condom use to prevent venereal diseases that affected men. Ms. Sanger challenged the constitutionality of the statute and though her conviction was affirmed by the state's highest court, she did secure a broader definition of "disease" that would allow physicians to protect women's health through birth control (People v. Sanger (N.Y. 1918)).

Where Ms. Sanger sought broader access to birth control through the doctors' exception, other advocates wanted to lift the cloud of obscenity from birth control entirely. They challenged Connecticut's contraception ban three times, losing in 1943 (Tileston v. Ullman) and in 1961 (Poe v. Ullman), and finally winning a great victory in Griswold v. Connecticut in 1965. in Poe, Justice Harlan dissented, noting that the problem with the Connecticut law was that the state was "intruding upon the most intimate details of the marital relation." Married women, however, should have full control over "the private use of their marital intimacy." In Griswold, Justices Douglas and Ginsburg took two different routes to the same conclusion: there is a certain special privacy in marriage that the state cannot penetrate. And, in Eisenstadt v. Baird (1972), after a medical professional was convicted of violating Massachusetts' anti-contraception law by lecturing on it and giving an unmarried woman a sample birth control device, the Supreme Court extended this right to sexual privacy from married to unmarried individuals.

By the time Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) were decided, the principle of individual sexual privacy was an essential part of what it meant to be a free person. Roe and Casey are complex and deserve their own discussion; but, suffice it to say, Casey reminded us that women have a substantive due process right to make their own intimate decisions. 

A successful fight for gay equality and honor hinges on these decisions. The successful fight against obscenity laws that prevented us from talking about homosexuality in public and that banned gay groups from organizing and gathering in public relied on the battles women waged against those same obscenity laws since Ms. Sanger. The successful fight against anti-sodomy laws relied on sexual privacy principles and the liberty interest in being free to make your own intimate sexual decisions. The successful repeal of "Don't Ask, Don't Tell" relied on the argument that private, Constitutionally protected behavior could never be inconsistent with honorable military service. Future success in securing workplace non-discrimination protections for gays and lesbians will assume the privacy and liberty principles of Griswold, Eisenstadt, and Casey to argue that one's private sexual identity could never be a reason to lose your job. 

And, perhaps most importantly, a successful argument for marriage recognition hinges on the legal foundation of sexual liberty that the women's movement has worked hard to secure. There are undoubtedly additional steps to take, but a world where women can be forced to have children because it is obscene to talk about vaginas, reproduction, and abortion also is a world where police can arrest a gay man for making love to his partner in the privacy of his own home. A world where a woman cannot initiate divorce proceedings because divorce is immoral also is a world where a lesbian cannot visit her same-sex partner in the hospital because their relationship is immoral. And, a world where a woman cannot choose her reproductive destiny is a world where a gay man cannot choose his destiny to love, be loved, and bring new life into the world.

In a week where we are supposed to thank our mothers for the sacrifices they made to raise us into the men and women we are today, do not forget that we owe further thanks to the mothers of our civil rights struggle. Their sacrifices — and their legal accomplishments — have made this extraordinary time possible. 


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.