This post is a continuation - to read the first part, click HERE.
In Part I of this post, we took Kenji Yoshino's invitation, sparked by his book, Speak Now, on Hollingsworth v. Perry, to take a look at the context for the upcoming Supreme Court marriage argument. We traced the key legal history back from 1972 and Baker v. Nelson to the passage of Defense of Marriage Act (DOMA). I have been arguing that a multi-pronged strategy was necessary to win marriage rights, but the step-by-step litigation strategy was the central mode of success. Let's pick up where we left off.
The preemptive nature of DOMA was its most striking element. In 1996, there were no legally married gay couples in the states, and yet Congress still felt the need to discriminate against them and give states the right to ignore legal marriages just because the individuals are gay. It wasn't until 2004 when Massachusetts legalized marriage for gays that the effects of DOMA could actually be felt by a real live person. Between 1996 and 2004, advocates went to work in progressive states, mostly in the Northeast, to set the groundwork for marriage rights. After Massachusetts took the jump, 13 states passed constitutional bans on marriage equality. Others followed. But Massachusetts was joined by a handful of other states on the pro-equality side, including Connecticut, Vermont, Iowa, and New Hampshire.
California was a unique case. In re Marriage Cases brought marriage equality to that state in 2008, but that freedom was famously taken away in Proposition 8. The denial of marriage rights in a state like California -- the progressive home of the Castro and West Hollywood (and countless other cities and towns gay Californians called home) -- felt particularly harsh. A group of activists, led by 4 pioneering plaintiffs and represented by an attorney "odd couple" of Ted Olson and David Boies, decided to challenge Prop 8 in federal court.
CONTINUED, AFTER THE JUMP...