Since 1965, America has had an emerging line of high court precedents establishing the right to privacy in matters of sexual intimacy. These precedents were both product and fuel of the sexual revolution and gunpowder for the resulting culture wars. In 1965, the court held the right to use contraception. The principle was extended in 1967 as part of a decision to strike down state laws against interstate marriage. By 1972 the zone of privacy had been extended to unmarried couples using contraception, and a year later, in 1973, Roe vs. Wade invoked the right to privacy in legalizing abortion.
In May, 1970, a young Air Force veteran named Jack Baker wth his boyfriend of 3 years, Michael McConnell, visited a courthouse in Minneapolis (neither is a limp-wristed sissy, noted Look Magazine), and filed an application for a marriage license, which was promptly denied. It was generally dismissed as a stunt, another episode in the days of hippies, riots, and Woodstock. Homosexuality was still classified as a mental illness by the American Psychiatric Association, and even Alan Spear, a gay-rights pioneer and University of Minnesota professor, called the couple, “the lunatic fringe”. The publicity cost McConnell his job as a librarian and they filed suit. In an opinion that cited the Book of Genesis, the Minnesota supreme court rejected the wrongful dismissal suit, and the US Supreme Court turned it down “for want of a substancial federal question.”
By the mid-1980s, the American Civil Liberties Union believed the concept had advanced far enough to protect the initimate behavior of gay men and lesbians. They offered to help a Georgia man to challenge his conviction on sodomy charges. By a vote of 5-4, the high court held in 1986 that states were allowed to enforce age-old sexual taboos. A dissenting judge wrote “the legitimacy of secular legislation depends on whether the State can advance some justification in law beyond its conformity to religious doctrine.” The crack was widening to accept that more than traditional morals is needed to justify laws governing intimate relationships, and gay marriage rights were about to open that door. At the time, marriage seemed impossibly remote to most gay-rights leaders. There was no appetite for it when same-sex intimacy could still be prosecuted as a crime. For that matter, many gay activists weren’t interested in getting married. They scoffed at the idea of coming out of the closet only to enter the confines of marriage.
The AIDS epidemic started to change all that. It offered a painful education in the advantages of marriage. AIDS patients and their partners weren’t covered by each other’s medical insurance, weren’t entitled to enter doctors’ offices and hospital rooms of their loved ones, weren’t authorized to claim remains or plan funerals or inherit estates. Grieving survivors were barred from collecting Social Security and pension benefits. Marriage began to be seen as the portal to a wide array of priveledges and protection. Stable monogamy could be a lifesaver.
As doctors tinkered with the mechanics of procreation and the first test-tube baby was created in 1978, the old fashioned way of making babies was joined by a dizzying array of reproductinve strategies. With donor sperm and eggs, surrogate wombs, and so on, lesbian couples created their own baby boomlet, which spread quietly among gay men. Add adoptions and stepkids from earlier opposite-sex relationships, and there were now thousands of children of lesbian and gay couples. Of the roughly 600,000 US households headed by same-sex pairs in 2010, some 115,000 were raising children.
And so the law was primed for change and the value of marriage was made clear. A serious discussion was needed to advance the idea of same-sex marriage as something more than a joke or curiosity. When John Boswell, a history professor at Yale, in 1980 wrote “Christianity, Social Tolerance and Homossexuality”, he found scant evidence that the early church condemned homosexuality before the Middle Ages. Most Christian churches actually blessed same-sex unions during the first millenium of Catholicism. Evan Wolfson, whose Harvard law-school thesis brought forth the idea that discrimination against homosexuals was “not part of the natural order”, but an arbitrary invertion of the factious and violent medieval church. That became a road map for the lawsuits to come. But it was a jounalist for the New Republic, Andrew Sullivan, who brought it out of academia onto the liberal agenda. With his article, “A Conservative Case for Gay Marriage”, he argued that the parallel system of almost marriage that was developing in some jurisdictions would do more harm than good. The concept of domestic partnership could open a Pandora’s Box of litigation and subjective judicial decisionmaking about who qualifies.
Domestic-partner laws further weakened the ideal of marriage in a world rife with divorce, cohabitation and single parents. By contrast, marriage is crystal clear: you are either married or you are not married. If conservatives truly cared about traditional marriage, they should welcome same-sex couples seeking to honor an ancient tradition.
Gay rights organizations were leery of the marriage issue, preferring to attack less formidable barriers like the ban on homosexuals in the military. When an attorney in Hawaii filed suit on behalf of 3 same-sex couples, arguing that it was a violation of the state constitution to limit marriage to opposite-sex couples, the court, in 1993, found potential merit in the complaint, and ordered a hearing, erupting a backlash gay leaders long feared. As under the US Constitution, other states would be expected to honor Hawaii’s same-sex marriages and the Defense of Marriage Act (DOMA) was introduced relieving the states obligation to recognize the same-sex marriages performed elsewhere and adopted the traditional definition of marriage for federal purposes. Coming on the heels of the Pentagon’s “Don’t ask, don’t tell” policy, this was the chance to put the whole issue in the middle of the public debate. In 1996, the Supreme Court weighed in with its first major gay-rights decision in a decade with “Romer vs. Evans, striking down a ballot measure in Colorado that would have barred cities from including homosexuals in their anitdiscrimination laws. This was a denial of equal protection of the laws in the most moral sense. Traditional scruples could not justify discrimination. Gays and lesbians have the same right to privacy in their intimate lives as heterosexuals. That reasoning left on pretty shakey ground state laws limiting marriage to opposite-sex couples, as those laws were rooted in the moral disapproval of same-sex couples. The court had simply ratified what Americans were discovering daily: that gay men and lesbians were not aliens from society. Many famous people were gay and the other began to shade into the ordinary.
Polls continue to show resistance to same-sex marriage among Americans over 65, but ones born after 1980, are stoutly in favor. And every day there are more of them and fewer of the older folk. Same-sex marriage soon became a reality in America, first in Massachusetts, New York, and Iowa, and more recently in Washington and Maine. Tens of thousands of couples have been lawfully joined, and the sky is yet to fall. Nor have churches been forced to recognize civil marriages of which they disapprove. These two factors, lived experience and generational change, have moved same-sex marriage from the lunatic fringe toward a surging consensus. On March 26, 2013, the Supreme Court turned the tables on traditional marriage. The argument considered the recognition of 40,000 children of gay and lesbian couples living in California. They want their parents to have full recognition and full statues. California was added to the growing list of jurisdictions where same-sex couples could be lawfully hitched. With stunning speed, a concept dismissed by most gay-rights leaders is now embraced by half or more Americans, and support among young voters runs as high as 4-1.
Beginning with the Netherlands in 2001, countries from Argentina to Belgium to Canada, along with 9 states and the District of Columbia, have extended marriage rights to lesbian and gay couples. But the National Organization for Marriage declares the fight to defend the tradition of marriage is only beginning. That confidence is rare even among traditionalists. Polls in November showed that 83% of voters believe that same-sex marriage will be legal nationwide in the next 5-10 years. The wall of public opinion is crumbling. That’s not to say that they’ve reached the end of shunning, homophobia or anti-gay violence. Through 2008, no major presidential nominee favored same-sex marriage. But in 2012, Obama was a converted supporter. Down the ballot, elected leaders who once faithfully pledged to protect tradition have lined up to announce their conversions. Bill Clinton who signed the DOMA into law in 1996, called on the Supreme Court to undo his mistake. 1 in 7 American adults say their initial opposition to same-sex marriage has turned to support. It is becoming an increasingly uncontroversial controversy. The marriage license is the last defensible distinction between the rights of gay and straight couples, and when you’re down to your last trench, you are likely to lose the battle.
What is surprising is that this happened with very little planning. Neither political party gave a hint of support before last year. The impetus has come from disparate forces in seemingly unconnected realms. It is a story of converging strands of history. There are several cases before the Supreme Court that may tie up the threads neatly. It shows that even in conservative America people are free to change their minds.
SAME-SEX MARRIAGE – January 2015
When the supreme court decides once and for all the issue of same=sex marriage – the Justices announced in Jan 2015 that they are taking up the matter – they will complete one of the most rapid and dramatic political shifts in US history.
Less than 20 years ago, states ere free to put same-sex couples in jail for the crime of private, consensual sexual activity. No jurisdiction in the world recognized same-sex marriages – but just in case, Congress passed, and Democrat Bill Clinton signed, a law banning federal recognition of such unions. The constitution of Colorado, had been amended to forbid any legal protections for homosexual rights.
Now there’s little doubt that by summer, same-sex marriage rights will be the law of the land. The die was cast in 1996, when the Supreme Court struck down Colorado’s law, ruling for the first time that gay people cannot be discriminated against through the law, no matter what the majority of voters might think. In 2003, the court went further, ruling that moral teachings are ot sufficient reason to deny homosexuals the freedom to form intimate relationships.
Those two concepts led directly to the 2013 opinion in which the Justices – the same nine who will decide this year’s case – struck down the Defense of Marriage Act (DOMA) signed by Clinton. The plaintiff in that case was a lesbian spouse whose marriage was recognized under New York law. The court ruled that the Constitution bars the federal government from treating opposite-sex marriages differently from same-sex marriages in states that legalize both.
Now the court will apply the same reasoning to state laws. Does the Constitution allow states to discriminate when Congress cannot? Can the 14 states that still ban same-sex unions to recognize those that performed in other states?
In other word, suppose that two couples who were lawfully married in Utah both move to Ohio. Can officials in Ohio refuse to recognize one of the marriages – the two-husband marriage – while recognizing the union of husband and wife?
Justice Anthony Kennedy, the dominant voice in the court’s gay-rights cases for two decades, left no doubt about his thinking in his 2013 majority opinion: “No legitimate purpose” exist to justify a law “to disparage and to injure” same-sex couples. DOMA “instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”
The implication of such strong language are clear. Even some of the most conservative courts of appeal have struck down state marriage bans in the wake of the 2013 ruling. Earlier this term, the Supreme Court declined to take up the issue, for the simple reason that lower-court judges were arriving at the same decision. Where there was no dispute, the high court saw no need to step in.
But last fall, a panel of Sixth Circuit Court of Appeals – with jurisdiction over Ohio, Kentucky, Michigan and Tennessee – force the high court’s hand. Upholding state bans in its domain, the Sixth Circuit relied on a one-sentence ruling by the Supreme Court in 1972. In that case, a Minnesota law-school student argued that he had a right to marry his boyfriend; the justices said that the Constitution had no bearing on the question.
That this precedent won’t survive. It defies belief to think that the same Justices who joined Kennedy’s 2013 opinion, with it s emphasis on the equal dignity of same-sex couples, would allow gay marriage to spread from coast to coast, then turn around and enforce state bans. Such a ruling would potentially invalidate thousands of unions.
Polls show that a majority of Americans are willing, even eager, to see the court take the final step. From impossible to inevitable, the high court and the American people have moved together, just the way politics is supposed to happen.