Law, Politics Combined on Path to Marriage Equality

      The gay rights advocates who met in a Jersey City hotel in 2005 drafted a strategy document that envisioned winning marriage equality for gay and lesbian couples in 10 states by the year 2020. Fresh from the political backlash to Massachusetts' legalization of same-sex marriage the year before, the plan seemed to be the height of realistic ambition.
      Today, the year 2020 seems more likely to mark the fifth anniversary of marriage equality for gays and lesbians nationwide. The Supreme Court set the stage last week [Jan. 16] for an historic ruling by the end of June recognizing a constitutional right for gays and lesbians to marry anywhere in the United States.
      The path to this point has been long and rocky, dating from 1972 when the Supreme Court curtly turned aside a gay Minnesota couple’s effort to get married “for want of a substantial federal question.” The advances have come through a combination of aggressive law and defensive politics, exercised in the face of doubts and divisions within the gay community and stout public resistance from the straight majority.
      The need to combine law and politics was the insight that Evan Wolfson brought to that meeting of marriage equality pioneers in 2005. Wolfson wrote the seminal thesis arguing for a constitutional right for gays and lesbians to marry while a student at Harvard Law School in the early 1980s.
      By the 1990s, Wolfson, then with the Lambda Legal Defense and Education Fund, helped engineer the first trial-level victory for marriage equality in Hawaii only to see it nullified by a political backlash that spread like wildfire nationwide. The court-ordered legalization of same-sex marriage in Massachusetts in May 2004 prompted a raft of anti-marriage amendments in other states later that year.
      As Wolfson's later political director Marc Solomon recounts in his book Winning Marriage, Wolfson countered the gloom among marriage advocates by arguing that success was still achievable but only by changing the political climate as legal challenges continued. As evidence, he cited the Supreme Court’s patient decade-long delay from the 1950s to 1967 before its decision recognizing a right to interracial marriage.
      The strategy document, actually written by Matt Coles of the American Civil Liberties Union, said that both Congress and the Supreme Court would be more willing to insist that “hold out” states bow to widely accepted social norms than to set those standards themselves. Marriage advocates were mostly on the defensive for the next several years. Indeed, Solomon devotes more than one-third of his book to the intensely political fight to keep the Massachusetts legislature from allowing a popular vote to overturn the state high court’s ruling.
      Politics remained a daunting challenge even after legal victories. The California Supreme Court issued a pro-marriage ruling in May 2008 only for voters to overturn it by adopting the anti-gay Proposition 8 in November. The Iowa Supreme Court issued a landmark pro-marriage ruling in 2009 only for three of the justices in the majority to be rejected by voters the year after.
      Wolfson enlisted Solomon, a non-lawyer political operative, to join his New York City-based Freedom to Marry in 2010 to build a national operation to support pro-marriage groups in individual states with money and expertise. The strategy bore fruit in November 2012 when voters in three states — Maine, Maryland, and Washington —  approved gay marriage laws and Minnesota voters beat back an anti-marriage constitutional amendment.
      The marriage movement’s political successes could be seen as vindicating the views of those political conservatives, including leading Republicans such as Florida’s U.S. senator Marco Rubio, who contend that gay rights advocates should have been concentrating all along on politics, not law. But the history shows that political systems would never have taken the gay marriage issue seriously without first being forced by the courts to deal with it.
      The wrapping-up of the movement now depends on the Supreme Court. Marriage advocates scored legislative successes in 2013 in several blue states: Delaware, Rhode Island, Minnesota, Hawaii, and Illinois. But red states continued to hold out. The rapid advances in 2014 came only after federal courts — along with state courts in New Mexico and New Jersey — read the Supreme Court’s decision in 2013’s Defense of Marriage Act (DOMA) case as implicitly requiring recognition of same-sex marriage.
      The Supreme Court in October allowed federal appeals courts to impose marriage equality in five states by refusing to hear the states’ appeals to reinstate gay marriage bans that the appeals courts had struck down. The court’s hands-off approach toward other pro-marriage rulings since then has allowed same-sex marriage to become law in 36 states.
      The court had no choice last week but to accept the gay couples’ appeals from the ruling by the Sixth U.S. Circuit Court of Appeals to uphold same-sex marriage bans in four states: Kentucky, Michigan, Ohio, and Tennessee. The court seemingly has no choice either but to reverse the Sixth Circuit’s decision. Upholding the laws would create, as Chris Geidner writes in BuzzFeed, “an unprecedented mess.” And public opinion polls now show majority support for same-sex marriage. As Wolfson likes to put it, “Americans are ready for freedom to marry.”