The Improbable Victory of Marriage Equality
The successful push to win marriage equality was the product of a strategic legal campaign and an emerging social movement.
Marriage equality has been just one in a series of affirmative battles fought by the lesbian, gay, bisexual, and transgender (LGBT) rights movement over the past half-century. Once envisioned as the distant — and far from universally embraced — capstone of a movement with other, more immediate, priorities, it vaulted to an improbable victory even as many of the movement’s less ambitious goals remain unfulfilled.
The successful push to win marriage equality in all 50 states was, in part, a strategic legal campaign played out through litigation and legislative advocacy in courthouses and legislatures across the country. It was also a social movement that inspired countless LGBT Americans and a growing number of allies to engage their families, friends, neighbors, and colleagues. And it was a strategic communications success story, taking an issue that elicited emotions from confusion to strong disapproval and — over two decades — changing millions of minds. It is one of the most compelling recent case studies in how the law changes.
The goal of winning equality for LGBT people under the law depended first and foremost on the eradication of sodomy laws, which criminalized private consensual relations at the very core of gay1 identity — the pretext for many other forms of discrimination. While state sodomy laws began to fall in the 1970s and 1980s through state court rulings and legislative action, an attempt to win a national resolution through the courts failed disastrously. In the 1986 Bowers v. Hardwick decision, the Supreme Court rejected a challenge to Georgia’s sodomy statute, declaring with thinly concealed contempt that the claim that “homosexual sodomy” was protected under the Constitution was “at best, facetious.” When pressed to consider whether it was legitimate to base these laws on “majority sentiments about the morality of homosexuality,” the Court replied that the law is “constantly based on notions of morality.” In a separate opinion, Chief Justice Warren Burger felt the need to “underscore” this point: “To hold that the act of homosexual sodomy is protected as a fundamental right would be to cast aside millennia of moral teaching.” The pall of illegality was only lifted in 2003, when the Supreme Court repudiated Bowers in Lawrence v. Texas. At the time, sodomy laws were still in force in 14 states.
The community’s activists also set their sights on other important goals: legal recourse for discrimination in employment and housing, protection from violence and bullying in schools, adoption and child custody rights, hospital visitation rights, the right to serve openly in the military, and culture change to foster acceptance and visibility. Some of the earliest victories, in the decade following the launch of the modern gay rights movement in 1969, came at the local level as counties and municipalities enacted anti-discrimination measures. The most visible early victory came in Dade County, Florida, which passed such an ordinance in 1977. For every incremental gain, however, LGBT rights advocates encountered pushback. The Dade County measure was overturned in a ballot initiative campaign led by former beauty queen Anita Bryant, who became the polarizing face of anti-gay backlash.2
Eventually, opponents of LGBT rights — often allied with an emerging Religious Right represented by the likes of Jerry Falwell and Pat Robertson — saw the value in going on offense: By advancing ballot measures that blocked protections for gay people, anti-gay activists forced the LGBT community to engage in (and often lose) expensive defensive efforts.
The defensive efforts did not always fail, however, and one notable victory marked a decisive turning point in the Court’s LGBT rights jurisprudence, helping to pave the way for marriage equality victories almost two decades later. In 1992, 53 percent of Colorado’s voters approved Amendment 2 to the state’s constitution, precluding state and local governments from prohibiting discrimination based on “homosexual, lesbian, or bisexual orientation, conduct, practices or relationships.”3 A case challenging Amendment 2, Romer v. Evans, reached the Supreme Court in 1996. Ten years after the Court’s callous dismissal of LGBT people in Bowers, a six-justice majority ruled that Amendment 2 violated the 14th Amendment’s Equal Protection Clause. It was the first case in which the Court ruled that discrimination against gay people violated constitutionally protected rights. Writing for the majority was Justice Anthony Kennedy, a Reagan appointee who replaced Justice Byron White, the author of Bowers. Notably, Justice Kennedy never once mentioned Bowers in his opinion. Starting with Romer, Justice Kennedy would play a central role in gay rights jurisprudence over the coming decades.
The Lessons of Hawaii
Around the same time as Romer, in the super-heated atmosphere of the 1996 presidential election campaign, marriage equality erupted for the first time as a national issue. The impetus was a lawsuit wending its way through the state courts in Hawaii. Three years earlier, the Hawaii Supreme Court ruled that the exclusion of gay people from marriage was a form of sex discrimination under the state’s constitution. The case was remanded for trial to give Hawaii’s government the opportunity to justify its policy.4 Amazingly, gay advocacy groups showed little interest in taking the case, viewing the cause as hopeless. A young lawyer named Evan Wolfson from Lambda Legal, an organization dedicated to protecting the civil rights of the gay community and those with HIV/ AIDS, volunteered on the litigation, working with a straight attorney from the local ACLU named Dan Foley. In 1996, after trial, a Hawaii Circuit Court found discrimination in marriage unconstitutional. The trial judge then stayed his judgment over concerns of “the untenable legal state” of homosexual marriages in the state should his ruling be overturned on appeal.5 However, before the trial had even concluded, a fierce national backlash set in.
Politicians in Washington fell over themselves to signal their disapproval of the Hawaii litigation. In 1996, by overwhelming margins — 85-14 in the Senate6 and 342-67 in the House7 — Congress passed the Defense of Marriage Act (DOMA). The law had two key provisions. Section 2 declared that states were free to withhold recognition of samesex marriages from other states, overturning the usual presumption that a lawful marriage in one state is recognized in others. Section 3 defined marriage for purposes of federal law as the union of one man and one woman, barring federal recognition of same-sex marriages even if valid under state law. Although he criticized the measure as “unnecessary and divisive,” President Clinton signed DOMA into law.8
Hawaiians also took matters into their own hands. In 1998, the state’s voters put an end to the effort to win a breakthrough victory judicially, amending the state constitution to give the legislature “the power to reserve marriage to opposite-sex couples.” In 1999, the Hawaii Supreme Court upheld the state’s gay marriage ban under this new constitutional provision.9
The short-term damage from the Hawaii litigation was obvious. Not only had the lawsuit failed to bring marriage to the gay citizens of Hawaii, but it resulted in a torrent of anti-gay sentiment and a new and harmful law: DOMA. But the Hawaii case also planted the seeds of change. It introduced marriage equality into the national dialogue, bringing increased (although still nascent) public support. And it was critical in focusing the gay community’s attention on marriage as a clear and compelling goal.
In the post-mortems that followed, two important lessons emerged. First, as a matter of legal strategy it was preferable to bring marriage equality lawsuits in states where victory could be not only won but secured. Accordingly, advocates needed to consider the relative ease or difficulty of overturning a favorable judicial decision through the ballot box in deciding where to bring future cases. Second, and even more importantly, marriage equality advocates recognized that victory would not come solely through the courts. The Hawaii campaign focused heavily on traditional legal strategy, but it did not have an adequate parallel strategy to win over the public. To win in the courts, advocates knew they also had to appeal to the court of public opinion.
By 2001, a new national organization — Freedom to Marry — was founded with modest foundation funding. Led by Evan Wolfson, the Lambda Legal attorney who led the Hawaii litigation effort, it was dedicated to education and coalition building — as well as cajoling LGBT advocacy organizations that sat on the sidelines during the Hawaii fight.
The New England Strategy
The lessons learned following the Hawaii litigation and subsequent anti-gay legislation faced their first test three years later as the battleground shifted from our 50th state to some of our oldest. In New England, Gay and Lesbian Advocates and Defenders (GLAD), a Bostonbased legal advocacy organization, had developed a regional strategy to win marriage equality — led by another visionary legal strategist, Mary Bonauto. Unlike Hawaii, the constitutions of New England states could not be amended through voter initiatives. The process of amending state charters in the region is typically arduous, requiring action by state legislatures in successive legislative sessions. The lawyers at GLAD also felt that the region’s more progressive (and secular) politics, evidenced by progress in areas like anti-discrimination protection, would make it fertile territory for public outreach efforts to build broad public support.
Still, the idea of marriage equality was far from popular in the region. When the next big marriage equality case came before Vermont’s Supreme Court in 1999, the issue once again stirred public controversy. In Baker v. State, the court held that the state’s constitution entitled same-sex couples to “the common benefit, protection, and security that Vermont law provides opposite-sex married couples.” But the court left it to the legislature to devise a remedy — either marriage or some “parallel” or “equivalent” institution. The legislature opted for the halfway measure of civil unions.
Baker and the subsequent Vermont legislation was, at best, an incremental victory. No one really believed that a separate institution, created solely to forestall equal access to marriage, was “equal.” Civil unions were a compromise legal status that provided legal protections to couples at the state law level, but no federal protections. “Civil union” also lacked the dignity and clarity of the word “marriage.” In Vermont, it would take a decade of patient organizing and activism before the legislature would finally take the next step and grant equal access to the institution of marriage.
The next — and ultimately pivotal — state to take up marriage equality was Massachusetts. In November 2003, the state’s highest court went one step further than Vermont. In Goodridge v. Department of Public Health, a divided court not only held that excluding gay people from civil marriage was discriminatory, but also that the only remedy was providing equal access to marriage. In a stirring majority opinion, Justice Margaret Marshall declared that the Massachusetts Constitution “forbids the creation of second-class citizens.” Quoting the Vermont court’s ruling four years prior, she added: “Without the right to marry – or more properly, the right to choose to marry – one is excluded from the full range of human experience and denied full protection of the laws for one’s ‘avowed commitment to an intimate and lasting human relationship.’” The court gave the legislature 180 days to enact legislation consistent with its ruling. By May 2004, samesex weddings started taking place across the Bay State.
To avoid a replay of Hawaii, where progress in the courts met with political backlash, activists deployed a more sophisticated strategy in Massachusetts following the win in Goodridge. MassEquality, a new statewide LGBT advocacy organization, was founded to spearhead advocacy and public education efforts. Donors and philanthropic foundations supported a multiyear campaign to protect the win in Massachusetts at all costs. It would prove to be an epic fight over three years, mobilizing armies of activists and interest groups on both sides and costing millions of dollars.
From the outset, Gov. Mitt Romney was a sharp critic of the court’s ruling. He vowed to prevent Massachusetts from becoming “the Las Vegas of same-sex marriage.” His strategy was, in part, to enforce a longforgotten 1913 law that prevented out-of-state couples from marrying in Massachusetts if the marriage was invalid in the state where they lived.10 Romney’s enforcement strategy signaled a continuation of the law’s ignoble history: It had been enacted initially to prevent interracial couples from marrying in Massachusetts if their home state banned interracial marriage. He also urged the legislature to begin the lengthy process of amending the state’s constitution to define marriage as a union between one man and one woman. In Massachusetts, amendments to the state constitution may be enacted in two ways. They may be approved by a majority of legislators, meeting in a constitutional convention over two successive legislative sessions, followed by a voter referendum. Or they may be presented to the legislature by petition, requiring approval by only a quarter of legislators during two successive sessions before a voter referendum.
Opponents of same-sex marriage deployed both strategies between 2004 and 2007. Neither succeeded.11 Following the election of Gov. Deval Patrick, who ran on a platform of support for marriage equality, opponents’ last ditch attempt at a petition failed to reach the legislative threshold required. The campaign’s activists and strategists savored a crucial win: The beachhead of marriage equality in Massachusetts was secure.
The National Backlash and a Retooled National Strategy
Meanwhile, the advent of same-sex marriages in Massachusetts unleashed a wave of new activism — and a tsunami of political outrage. Inspired by the prospect of a major civil rights milestone, mayors in San Francisco12 and New Paltz, New York13 ordered the issuance of marriage licenses and officiated at marriages of same-sex couples. TV cameras beamed images of happy same-sex newlyweds all across the country. Depending on one’s point of view, this was inspiring civil disobedience or lawless chaos. Self-proclaimed defenders of traditional marriage called for an amendment to the United States Constitution to define marriage as the union between one man and one woman. In February 2004, as his re-election campaign was getting underway, President George W. Bush lent his support. Congress would vote on two separate iterations of the amendment in 2004 and 2006. But supporters fell far short of the supermajorities14 needed and the federal amendment strategy died.
At the same time, Bush’s chief campaign strategist Karl Rove saw the marriage issue as a potent tool to bring socially conservative voters to the polls in 2004. Working with state-level activists, Rove helped orchestrate campaigns to introduce ballot initiatives in 13 states, including the pivotal state of Ohio, that would amend state constitutions to ban same-sex marriage. On Election Day 2004, all 13 measures easily passed. While there is little evidence that these referendums aided Bush’s re-election effort, they represented a harsh setback for the marriage equality movement. In total, 31 states would amend their constitutions through popular referendums to preclude same-sex marriage. Others would pass legislation similar to the federal Defense of Marriage Act. Some of these measures allowed for civil unions or similar protections, while others foreclosed any legal protections for same-sex couples.
At this low moment for the marriage equality movement, leading strategists and funders regrouped to devise a realistic, winnable strategy. While the goal of winning marriage equality nationwide in the Supreme Court or Congress did not seem achievable in the near-term, the movement envisioned a series of incremental wins that would pave the way for a national solution. A consensus document, dubbed “Winning Marriage” or the “10-10-10-20 strategy,” set an ambitious goal: By the year 2020, there would be 10 states with marriage equality, 10 states with civil unions deemed comparable to marriage, 10 states with domestic partner or other limited protection, and 20 states where public opinion moved in the right direction. This plan, which seemed like a stretch at the time, helped focus advocacy efforts and the allocation of resources. It also lent strategic focus — and a sense of optimism — when it was needed most.
At the same time, the goal of marriage equality was far from universally embraced within the LGBT community. The setbacks of 2004 led some to question why marriage was a movement priority at all. Others worried that other movement priorities were being given short shrift. Intramural disputes about the movement’s goals continued over many years.
To strengthen the campaign for the long haul, activists and funders came together around a more sophisticated, multi-pronged strategy, with public education as the centerpiece. The goal: to reach a “moveable middle” constituency uncomfortable with the novelty of same-sex marriage but also uneasy about discrimination. Significant polling and message research was done, but for a few years strategists dithered on whether putting a human face on the issue — showcasing real LGBT families, for example — would help or hinder the cause.
Organizing and broadening the base was also a priority. Target audiences included communities of color (where polling revealed greater discomfort on gay rights issues, often tied to deeply held religious beliefs) and businesses (which had unique credibility with legislators and opinion leaders). Another key constituency was faith leaders and religious congregations whose support for same-sex marriage was grounded in their religious beliefs.
Finally, advocacy capacity at the state level was viewed as pivotal. Historically, state-based LGBT rights groups were small and perennially under-resourced — if they even existed at all. The success of MassEquality prompted the creation of similar groups in other states. It also led a group of foundations that support marriage equality to create the Civil Marriage Collaborative, a grant-making initiative that pooled foundation funds to strengthen and build a state-by-state movement for marriage equality. After its launch in 2004, the Collaborative invested more than $20 million in states to help them prepare for the marriage equality battles that would ensue.
Disappointment in the Courts
Following the success in Massachusetts, legal advocates launched litigation efforts in a number of other states. But given the firestorm over marriages in the Bay State, and the unbroken streak of wins in state ballot measures to ban same-sex marriage, it is perhaps not surprising that other state supreme courts were reluctant to follow Massachusetts’s lead. In 2006 and 2007, high courts in New York, New Jersey,15 Maryland, and Washington all held, by narrow margins, that same-sex couples had no constitutional right to marry. The majority opinions in those cases stated that the only recourse was through legislation. Dissenting opinions countered that fundamental rights may not be left to the legislative process.
Andrew Sullivan, a pioneering conservative advocate of marriage equality, has argued that these setbacks were a blessing in disguise. In the blue states at least, the failure of courts to act focused advocacy efforts on persuading the American people and their elected representatives. By 2006, a new generation of political candidates — friendly to the LGBT community, which provided them financial and other forms of support — vowed to support marriage equality if elected.
The 2006 election, which brought Democrats to power in a number of statehouses, marked another turning point. A flood of pro-LGBT legislation was enacted in the next legislative session, including civil union measures in New Jersey, New Hampshire, Connecticut, and Oregon (one of the 13 states to pass a marriage ban in 2004). In California, which enacted civil unions in 2000, the legislature twice passed a marriage equality bill — the first legislature to do so. Gov. Arnold Schwarzenegger vetoed both measures, however, asserting that marriage equality was an issue for the courts to decide. A marriage bill was also introduced in Connecticut that year, but went nowhere when Gov. Jodi Rell threatened a veto.
By 2009, following more good election results for Democrats, the governors of three New England states — Vermont, New Hampshire, and Maine — signed marriage equality legislation into law. This was a signal moment, undermining arguments that marriage was being “redefined by activist judges” against the will of the people. Not coincidentally, all three states had been targeted for investment by the Civil Marriage Collaborative and other LGBT donors. The success in these three states was soon tempered — the Maine law was overturned by a popular referendum — but the potential of a legislative strategy was apparent.
Renewed Success in the Courts and Renewed Backlash
Following the disappointing court rulings of 2006 and 2007, the marriage equality movement’s litigation strategy showed renewed vitality in three key states. In California, where Schwarzenegger twice vetoed a marriage bill, the National Center for Lesbian Rights developed a new, litigation-focused strategy that bore fruit: In May 2008, the California Supreme Court ruled that access to marriage was a fundamental right under the state constitution. That same year, the Connecticut Supreme Court followed suit, holding that making civil unions, but not marriage, available to same-sex couples violated the equality and liberty provisions of the state constitution. And then, in 2009, a unanimous Iowa Supreme Court similarly held that the equal protection provisions in its state charter mandated marriage rights for same-sex couples.
Predictably, the victory in California led to calls for a statewide ballot measure to reverse it. Proposition 8 was submitted for the November 2008 election ballot after garnering more than 1.1 million signatures. After a fiercely contested campaign, where opposing sides spent $80 million on ad campaigns and organizing efforts, the measure was adopted by a margin of 52-48 percent. In the five months between the court ruling and Election Day, 18,000 couples were married in the state.16 The verdict of the voters would be challenged in court, in an epic legal battle that would end up before the U.S. Supreme Court.
The ruling of the Iowa court, meanwhile, faced a public verdict of a different sort: an organized campaign of retribution against individual justices. Iowa uses a merit selection system for its supreme court. Under that system, justices are initially appointed to the bench and then face periodic retention elections. In the November 2010 election, critics of the marriage equality ruling — with significant support from out-of-state groups — engineered a successful “vote no” campaign that ended the tenure of three members of the court. A second campaign in 2010, targeting another justice, did not succeed.
The story played out differently in Connecticut. Thanks to successful organizing over many years, the court’s ruling enjoyed wide public support. The public support no doubt led Rell — who had once threatened to veto marriage equality legislation — to sign a law implementing the court’s directive.
Growing the Campaign to Scale
In the wake of California’s Proposition 8, the movement realized it needed to expand its efforts to meet the moment. Freedom to Marry worked with key national partners to raise significantly larger sums for the marriage equality effort. The increased funds supported the creation of state marriage equality campaigns operating with greater sophistication and coordination. Those campaigns started projects like Mayors for Marriage and Young Conservatives for Marriage — signaling that no group or population would be ignored or presumed to be unreachable. The movement also ramped up its social media capabilities, developing mini-campaigns that focused on the stories of real couples. Freedom to Marry also created a 501(c)(4) sister entity, allowing greater flexibility to engage in political activity, and aligned with powerful political donor networks including the Gill Action Fund, which steered contributions to LGBT-friendly candidates nationwide.
The defeat in California also prompted the movement to overhaul its messaging. The advice of messaging consultants to emphasize the rights and benefits of marriage had not worked. Instead, the state campaigns began to stress gay couples’ “love and commitment” — getting to the emotional underpinnings of marriage. In addition, the movement’s backers more aggressively targeted anti-equality legislators for defeat.
A New Wave of Victories in the States and a Tipping Point in Public Opinion
Once again, setbacks in the movement’s litigation strategy shifted focus back to the political strategy. For the first time, polls began to trend toward majority support for marriage equality. And, significantly, opposition to same-sex marriage began to lose its power as a wedge issue. Many Republicans, who had embraced the issue in 2004, looked for ways to avoid the topic. Increasingly, it was pro-equality Democrats with national ambitions — including New York Gov. Andrew Cuomo and Maryland Gov. Martin O’Malley — who pressed the issue.
In his first year as governor, Cuomo signaled his commitment to the passage of a marriage equality bill. He worked with activists and funders on a sophisticated strategy to build public support. In June 2011, the strategy paid off when Cuomo signed the measure into law, making New York the sixth marriage equality state.17
The New York win was a crucial milestone. It gave renewed confidence to the activists who lobbied present and future politicians, and it lent, for the first time, an air of inevitability to the state-by-state battle. The year after New York enacted its marriage equality law, legislatures in Washington and Maryland passed marriage equality legislation, subject to ratification by the voters on Election Day. In addition, citizens in Maine put marriage equality on the November ballot, asking voters to undo the referendum that reversed Maine’s 2008 marriage equality law.
With the tide shifting dramatically, marriage equality emerged as a political issue in the 2012 election campaign, but this time it was not a wedge issue. For the first time, the two candidates at the head of the Democratic ticket — President Barack Obama and Vice President Joe Biden — described their own “evolution” on marriage equality, an issue they had declined to support in 2008. An increasing number of downticket candidates followed suit.
On Election Day 2012, voters across the country rendered a sharply different verdict from the one in 2004. Not only did Obama and other proequality candidates win their races, but for the first time the pro-equality side swept the four contested ballot measures. Voters in Washington and Maryland affirmed marriage equality laws passed by their legislatures. Voters in Maine passed a new marriage equality law (the first time marriage equality was enacted through a voter-initiated referendum). And voters in Minnesota rejected a proposed state constitutional amendment to define marriage as the union of one man and one woman.18
With the wind now at their backs, governors in five states — Delaware, Illinois, Hawaii, Rhode Island, and Minnesota — signed marriage equality legislation during the first six months of 2013. In Minnesota, the victory was especially breathtaking since it came just months after the constitutional amendment battle. And the Rhode Island victory was noteworthy for marking the successful culmination of GLAD’s visionary New England strategy.
One additional state joined the ranks of marriage equality states in 2013. While New Jersey’s legislature also had passed a marriage equality bill in 2013, it had been vetoed by Gov. Chris Christie. But the state’s supreme court settled the question that same year, holding that a civil union was not “equal” to marriage when only marriage entitled couples to crucial federal benefits.
Two Major Cases Reach the Supreme Court — One Planned, One Not
From the early days through the “10-10-10-20” plan, the national litigation strategy was always clear: First, win marriage in a handful of states, either through court rulings or legislation. Once marriage equality moved from an unrealized goal to the lived experience of millions of couples, the country would adapt to this new reality. Second, challenge Section 3 of the Defense of Marriage Act that barred federal recognition of same-sex marriages even if valid under state law. Marriage has historically been the province of state law. What justification did the federal government have in overriding the states to deny over a thousand federal benefits to their citizens — from Social Security survivor benefits to the ability to sponsor one’s spouse for a green card? Third, challenge Section 2 of the Act, which allowed states to refuse to recognize legally valid same-sex marriages from other states. Opposite-sex couples can move to another state without ever worrying that their marriage would be deemed invalid. Why should same-sex couples worry whether the rights, responsibilities, and protections of marriage would follow them across state borders? Finally, as more and more married same-sex couples sought the protection of the courts in cases involving adoption, divorce, and inheritance, raising complex legal questions amidst a patchwork of state marriage laws, the U.S. Supreme Court would eventually rule that the only rational response was a national solution on marriage.
By 2009, with marriage equality a settled proposition in four states, litigation challenging DOMA’s Section 3 started moving through several federal courts. The most famous of these cases involved a widow named Edie Windsor. Windsor married her wife Thea Speyer in Canada in 2007. When Speyer died in 2009, she left her entire estate to Windsor. As a surviving spouse, Windsor claimed an exemption from federal estate tax. Although New York routinely recognized marriages from Canada as valid, and the state explicitly adopted a policy of recognizing same-sex marriages performed out-of-state in 2008, the Internal Revenue Service denied the exemption. It said that under DOMA the term “spouse” could not refer to a person of the same sex. Windsor was required to pay $363,053 in federal estate taxes on her inheritance. Had federal law recognized the validity of their marriage, Windsor would have qualified for an unlimited spousal deduction and paid no tax.19
As that lawsuit and others proceeded, Attorney General Eric Holder announced a major policy change in February 2011. While the Department of Justice had previously litigated to defend the constitutionality of DOMA in earlier lawsuits, it would no longer do so.20 No doubt, the Department’s decision was affected by the shifting tide of public opinion. It was surely also the product of successful public advocacy. In an unprecedented action, the Bipartisan Legal Advisory Group of the House of Representatives, controlled by the House Republican leadership, which remained hostile to marriage rights for same-sex couples, intervened in the Windsor suit for the limited purpose of defending Section 3.21
In the meantime, a second major lawsuit materialized — one not envisioned in the movement’s carefully crafted litigation plan. Following the passage of Proposition 8 in California, which overturned the state court’s ruling on marriage equality, two celebrated lawyers joined forces to win marriage equality once and for all. Ted Olson and David Boies, who became household names when they went head-to-head in the Bush v. Gore recount battle of 2000, argued that the Supreme Court was ready to provide a judicial victory that would extend marriage to gay couples nationwide.
Lawyers and activists in the movement were concerned. For years, they had successfully prevailed upon would-be plaintiffs to abandon their plans to push for a quick judicial solution to this question. They believed in a long-term, incremental strategy that took its inspiration from the patient, decades-long strategy of the civil rights movement, led by icons like Thurgood Marshall and Charles Hamilton Hughes. Olson and Boies said they weighed those concerns but ultimately decided to “trust our instincts and carefully considered judgments.”22
So two separate cases, with two very different endgames, wended their way toward the Supreme Court. United States v. Windsor sought an incremental win, according to plan, by testing the constitutionality of Section 3 of DOMA. Hollingsworth v. Perry challenged Proposition 8 under a legal theory that called for a decisive and final win in favor of marriage equality.
Along the way, Olson and Boies performed a valuable service appreciated by few at the time. While they originally hoped to get to the Supreme Court quickly by bypassing a trial and making arguments to the court through lawyers’ briefs alone, the presiding judge in the case ordered a trial with witness and expert testimony. In a proceeding lasting several weeks, the two attorneys proved masterful at exposing the weak arguments and unsubstantiated assertions of the anti-equality side.23 They demolished the credibility of their leading experts, a fact not lost on a succession of judges who would be hearing marriage equality cases over the next few years.
The legal challenge to Proposition 8 also galvanized a California base of political donors, from Hollywood to Silicon Valley, straight and gay, who bankrolled the lawsuit and funded communications efforts. Many of those same donors were also major contributors to Democratic campaigns, and they did not flinch from making their views known.
In December 2012, the U.S. Supreme Court agreed to hear both Windsor and Perry. An extraordinary two days of argument were scheduled for March 2013. Dozens of organizations and individuals filed “friend-of-the-court” briefs urging the Court to end discrimination in marriage, reflecting growing support from influential constituencies including business, academics, the legal and medical professions, and religious groups. Given the heightened national interest in the issue, the Court took the unusual step of releasing an audio recording of oral arguments that same day. It provoked a significant “teachable moment” on the issue.
In June 2013, on the last day of its term, the Court handed down rulings in the two cases. Proving the skeptics right, the Court was not ready to mandate marriage equality from coast to coast. A fractured 5-4 majority dismissed the Perry case on standing grounds. Since California’s governor and attorney general were no longer willing to defend Proposition 8, the ruling had the effect of reinstating marriage equality in the Golden State.
It was the Windsor case that pointed the way toward a national resolution. In a 5-4 decision, Justice Anthony Kennedy ruled that the Constitution prevented the federal government from treating statesanctioned heterosexual marriages differently from state-sanctioned same-sex marriages. Such disparate treatment “demean[ed] the couple, whose moral and sexual choices the Constitution protects.” The ruling drew on principles of federalism, equal protection, and liberty. “DOMA’s principal effect,” wrote Kennedy, “is to identify a subset of state-sanctioned marriages and make them unequal.”
In an angry dissent, Justice Antonin Scalia argued that the Court’s reasoning in Windsor would apply equally in cases challenging bans on same-sex marriage:
As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.
In Edie Windsor, the movement gained a charming and telegenic heroine who helped provide a human face to the issue of marriage equality. But it was Justice Kennedy’s soaring language — and Justice Scalia’s too- clever-by-half denunciations of the Court’s reasoning — that set in motion a rapid succession of federal court victories not anticipated by any of the movement’s legal strategists.
A Domino Effect in the Federal Courts — and an Earlier-than-Expected Endgame
The Court’s ruling in Windsor was followed by a series of federal policy changes that made same-sex married couples eligible for the first time for a whole raft of benefits, including military benefits, immigration benefits, and the ability to file joint tax returns.
It also unleashed a wave of marriage equality lawsuits in states not previously thought to be fertile terrain. Prior to Windsor, with the sole exception of Perry, the state-by-state litigation strategy focused on the interpretation of state constitutions. Any claim under federal law would have to contend with the odd precedent of Baker v. Nelson. Baker involved a 1971 Minnesota Supreme Court case holding that a state law limiting marriage to a man and a woman did not violate the U.S. Constitution. At the time, federal law provided an appeal “as of right” to the U.S. Supreme Court from the decision, but in 1972 the Supreme Court inexplicably dismissed the appeal for “want of a substantial federal question.” Though the Court never heard arguments in Baker, it had long been considered binding precedent.
The first federal judge to weigh in on this question post-Windsor was based in Utah. In the case of Kitchen v. Herbert, decided in December 2013, Judge Robert J. Shelby found the holding in Baker no longer controlling given the logic of Windsor. Ignoring the irony in Justice Scalia’s criticism of the majority opinion in Windsor, Judge Shelby wrote: “The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”
A month later, in January 2014, a federal court in Oklahoma applied the same analysis in striking down that state’s same-sex marriage ban. In Bishop v. Oklahoma, Judge Terence C. Kern wrote: “There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one.”
Within a period of 16 months, a remarkable succession of federal district courts came to the same conclusion. From December 2013 through March 2015, federal judges invalidated marriage bans in 18 states. In a 19th state, Kentucky, a federal judge ordered the state to respect out-of-state marriages. The winning streak was only broken in September 2014, when a federal court in Louisiana ruled that the state’s marriage ban was nonetheless constitutional.
It is hard to say for sure how public opinion affects the courts. But one sees an interesting correlation here: In the years immediately following the 2003 Goodridge decision, which brought fierce criticism of the courts and a succession of anti-equality ballot measures, four state supreme courts declined to follow the Massachusetts example. But by 2013, with marriage equality enjoying a majority of the public’s support for the first time and also winning the support of political leaders, these federal judges may have had an easier time.
On appeal, four federal appellate courts also applied the logic of Windsor to rule in favor of marriage equality. Each appellate victory affected litigation in other states in the same circuit, adding more states to the win column. Some states, like Pennsylvania and Virginia, withdrew their appeals and joined the burgeoning roster of marriage equality states. Others, like Utah and Oklahoma, sought a final resolution before the Supreme Court. Remarkably, in October 2014, the Court declined to hear those cases. While it did not provide a reason, Justice Ruth Bader Ginsburg suggested in a public appearance that the Court might be waiting for a split among the appeals courts before taking the case.
That split came the next month when the Sixth Circuit Court of Appeals, ruling on a set of four cases from Ohio, Kentucky, and Tennessee, ruled that state marriage bans did not violate the U.S. Constitution. Writing for the court, Judge Jeffrey Sutton cited Baker as still-binding precedent. He also went further, rejecting the arguments of the marriage equality side: “Not one of the plaintiffs’ theories, however, makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.”
In January 2015, the U.S. Supreme Court agreed to hear the four cases. It asked the parties to argue two questions: Does the 14th Amendment require a state to license a marriage between two people of the same sex? And does it require states to recognize valid same-sex marriages performed in other states?
In some respects, the oral arguments in this final appeal — Obergefell v. Hodges — seemed less suspenseful than the argument in Windsor a mere two years before. In that short period of time, marriage equality had spread to three-quarters of the states, and public opinion had shifted decisively in favor of marriage equality, with polls showing support hovering around 60 percent.24 LGBT advocacy groups worked hard to press their advantage, advancing social media campaigns to drive home the point that “America is ready for the freedom to marry.”
In June 2015, in another 5-4 decision, the Supreme Court finally held that the 14th Amendment requires all states to grant same-sex marriage licenses and recognize same-sex marriages granted in other states.
Justice Kennedy once again delivered the opinion of the Court. Joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, he wrote:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The four dissenting justices each wrote their own separate opinions — evidence perhaps of the crumbling justifications for the continued exclusion of LGBT couples from the institution of marriage.