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Analysis

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.

September 29, 2015

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.

Back­ground

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.