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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A constitutional right to marry for gay persons made little sense if the Constitution didn't protect gay persons at all. In fact, the situation in the 1970s and 1980s (even through the 1990s) was much worse: the Constitution allowed states to see gay persons as presumptive criminals. Anti-sodomy laws criminalized behavior that was not only common to the gay community, but so primary to our expression of love that the conduct had to be seen as synonymous with our identity. So, if anti-sodomy laws that targeted gays were constitutional, as the Supreme Court said in 1986 in Bowers v. Hardwick, then the Constitution was saying that activity so bound up with gay identity could be the basis of criminal sanction. That turned gay persons into presumptive criminals.
It would take until 2003, in Lawrence v. Texas, for the Supreme Court to reverse Bowers. But along the way, the movement didn't stand still. It went state by state, with a political and litigation strategy that not only challenged anti-sodomy laws, but wrapped in other rights and opportunities into a broader fight. It was at this time that advocates started to shift their emphasis from seeking pure "freedom" — including speech and sex — to more aggressively seeking constitutional protections for a discriminated minority.
Colorado offered a perfect test for the Constitutional protection battle. In 1992, 53 percent of Colorado voters voted for (and enacted) Amendment 2 to the state's constitution, stating that the only way gay persons could win civil rights protections is if the people of Colorado agreed to amend the constitution. That is, no city council, no county board, and not even the state legislature could pass a pro-equality measure that included protections for gay people. A coalition of Lambda Legal, the ACLU, and a local group prevented implementation and won a 6-3 victory at the Supreme Court, which declared Amendment 2 unconstitutional in the 1996 case of Romer v. Evans.
It was the first positive watershed moment in the marriage equality journey at SCOTUS because it was the first time the Supreme Court recognized that gay persons had rights under the Constitution and that mere hatred of — or "animus" toward — gays was not a valid reason to pass a discriminatory law. Romer (plaintiffs at right) was also the first Supreme Court case where the Court waded through the multitude of so-called justifications for anti-gay discrimination: children, morality, history and tradition. Judges that have decided marriage equality cases over the last several years always reached back to Romer to shoot down those lingering pretextual justifications.
From Romer, Bowers immediately seemed like bad law: anti-gay sodomy laws that specifically target activity central to gay identity were passed out of pure animus toward gays. Lawrence v. Texas (2003) found such laws unconstitutional under a somewhat broader conception of a constitutional right to intimate association. By 2003, then, it was clear that the Constitution would not abide naked anti-gay discrimination: gay persons had the right to live and love just like heterosexuals. This meant several things. First, the notion that marriage discrimination against gays doesn't raise a federal constitution issue is dead. If the Constitution protects our right not to be discriminated against, a law that discriminates against us raises constitutional concern. Second, it tees up the marriage strategy.
If we could intimately associate with the person we saw fit regardless of gender or sexual orientation, then the freedom to make that intimate association official — and enjoy the honorific and practical benefits of marriage — seemed evident. Advocates reached back to myriad Supreme Court cases — from Griswold v. Connecticut (contraception) to Loving v. Virginia (interracial marriage) — that declared marriage a fundamental right. It made sense: gays were protected under the Constitution such that their rights, like all persons, are guaranteed as against popular discrimination. Marriage should be included among that panoply of rights.
Several couples in Hawaii went first, despite some remaining ambivalence in the community among seeking marriage rights outright. When a court said that preventing gays from marrying required the state to meet a heavy constitutional burden, a conservative Congress reacted swiftly, passing the inaptly named Defense of Marriage Act (DOMA). DOMA enshrined opposite-sex marriage into federal law. It said that whatever one state did about same-sex marriage, gays would never really be married in the eyes of the federal government. Nor did any other state have to follow a pro-equality state. The law pre-emptively cut off the flow of thousands of rights to future gay couples and relegated gays once again to second-class citizenship.
The multi-pronged strategy to win marriage equality nation wide now kicked into high gear. Stay tuned for Part II.
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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.