BY ARI EZRA WALDMAN
Kenji Yoshino, the Chief Justice Earl Warren Professor of Constitutional Law at NYU School of Law, has written an outstanding book: Speak Now: The Story of Hollingsworth v. Perry. Perry was not the first marriage equality case. Nor, Professor Yoshino noted recently, did it create the most important legal precedent (that's Windsor). But Perry accomplished two essential functions, without which we would not be on the precipice of a nationwide marriage equality right: it launched marriage equality into the public conscience and used the unique environment of an adversarial trial to put our opponents' anti-gay arguments in stark relief. From there, the dominoes fell rapidly in our favor.
Less than one week away from oral argument at the Supreme Court in the most recent (and likely last) round of marriage equality cases, it is fitting to take Professor Yoshino's invitation to look back and understand the historical context that brought us here. For this retelling (and there are many possible retellings of the history of the marriage equality fight), I will connect the dots between some of the major legal precedents. Professor Yoshino's text is the seminal work on one of them -- Hollingsworth v. Perry. Let's see the bigger picture.
I will argue that although a multi-pronged strategy of growing public support, legislative action, and on-the-ground activism was important for marriage equality's success, without legal boldness and a courtroom strategy, much of the political work would not have mattered.
When, in the 1972 one-line order in Baker v. Nelson, the Supreme Court decided that the freedom to marry a person of the same sex did not raise any questions of federal law and, thus, could not be addressed in a federal court, the gay rights movement faced several options: give up on marriage, work state by state to amend marriage laws, or build the legal framework for a future federal fight on marriage equality. A non-monolithic movement, gay rights activists dabbled in each, but the latter was the most important.
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