This week, the state legislature of Illinois enacted civil unions over the objections of the Catholic Church and the rest of the anti-gay bigots such as the National Organization for Marriage. As of this posting, the bill has yet to be signed by Illinois Governor Pat Quinn, but Quinn is an LGBT ally, and has promised to sign the bill in the new year (supposedly in a big ceremony.) First and foremost let me say that I really wish Quinn would sign the bill right away. I understand that civil unions do not go into effect until June, but this kind of legislation needs to be signed right away. If somehow this legislation were to be vetoed, the Illinois legislature would not have the votes to overturn the veto particularly when the new legislature comes into session.
Two common thoughts have arisen in the LGBT community about this bill. The first is that it a great step forward. The second is that civil unions are not enough and at this point the only real victory is marriage. I would say that both of these are reactions correct and, despite being near opposite opinions, are actually quite consistent. Civil unions, in a place where there had previously been no LGBT rights, is a great victory. At the same time, civil unions are second class because they are viewed as such. This is especially apparent in Illinois where civil unions are open to straight couples. This demonstrates that marriage is being deliberately withheld from gay couples despite the increased rights of civil unions. The underlying message is “Marriage is Different.”
Moreover, the marriage situation for gay couples is tricky. The recognition of gay couples comes from the states. Federal protections offered to (and forced upon) married straight couples are not available to gay couples, no matter how the individual state defines the relationship. The reason for this is the Defense of Marriage Act, which states that (1) states do not have to recognize marriages/civil unions performed in other states (this is blatantly unconstitutional–see Article IV); and (2) the federal government does not have to recognize such unions. The first part of DOMA has yet to be challenged. Gay rights advocates are scared of the current Supreme Court and are (legitimately) afraid that a loss would set the movement back decades. A challenge to the second part is making its way through the federal courts. Recently a federal trial judge in New England found that this portion of DOMA is unconstitutional. Eventually the Supreme Court will hear this case (Gill v. OPM). Although it is a strong case, from this point on there are no guarantees. The path of gay rights has never been a particularly easy one.
II. Gay Rights and the Courts
Gay marriage first arrived into the American legal world through a 1972 case out of Minnesota called Baker v. Nelson. The gay plaintiffs were denied a marriage license. The plaintiffs appealed to the United States Supreme Court on Equal Protection grounds. The Court did not hear the case and dismissed it in a one line opinion that said there was no federal question. For non-lawyers, understand that this only applies to federal law. States could still decide these issues for themselves on their own constitutions and laws. Nearly 40 years later, Baker is a very dubious case. While Baker theoretically binds all lower federal courts (and state courts hearing federal claims), it is unclear exactly what Baker‘s status is. The Court never issued any substantial opinion or clarification, and the law has changed significantly since 1972.
On a federal level, the next major defeat came in 1986 when the Supreme Court announced its decision in Bowers v. Hardwick. If Baker was a loss for gay rights, Bowers was a crushing disaster. Michael Hardwick was a gay man who, long story short, was arrested in his bedroom when he was found there engaging in consensual oral sex with another man. Hardwick lived in Atlanta, and Georgia at the time had an anti-sodomy law (referring to anal and oral sex.) The case went to the Supreme Court, and in a horrific 5-4 decision the Court majority found the Georgia law was constitutional. The majority’s underlying message was this was only constitutional with regard to gay people. In other words, gays were not entitled to the same privacy protections as straight people. This ruling came during the height of the AIDS crisis.
The first victory for marriage equality came in Hawaii in 1993. Gay rights advocates, inspired by the NAACP’s years-long strategy in the successful dismantling of segregation, wanted to end anti-gay marriage laws on a gradual basis. Unlike the NAACP, gay rights advocates chose to do battle in state courts. The reasons for this were clear. Whereas the NAACP had an ally in the Supreme Court, gay rights advocates has a hostile majority waiting for them. The gay rights advocates instead brought suit in states that had a strong judicial tradition of expansive equal protection. That first victory came from the Supreme Court of Hawaii in a case called Baehr v. Lewin. The Court held that denying marriage licenses to gay couples was essentially impermissible gender discrimination and struck down the law.
Unfortunately, Baehr proved a Pyrrhic victory. Hawaii changed its constitution to allow the Legislature to ban same-sex marriage (and the Legislature did.) The real damage though came from Congress, which, in response to Baehr, passed DOMA. President Clinton signed it into law. A host of states passed their own laws and constitutional amendments also banning same-sex marriage. Some of the more venal states passed amendments that also banned civil unions.
In response to Hawaii, gay rights advocates realized they needed to alter their strategy. It was not enough to find states with expansive traditions of equal protection. They needed to find states which also had constitutions that were difficult to amend. The new battleground was New England, specifically Vermont and Massachusetts.
In 1996, the Supreme Court started to backtrack on its anti-gay stance in Romer v. Evans. In the ten years there had been a significant change of personnel on the Court, and in particular two Justices in the Bowers majority, Lewis Powell and Byron White, were replaced by Anthony Kennedy and Ruth Bader Ginsburg respectively. In Romer, the Court struck down a state constitutional amendment in Colorado that would have prevented any protections for LGBT citizens by the executive, legislative, or judicial branches on either a state or municipal level. For the first time an anti-gay law had gone too far and had too much animus; the new Supreme Court majority pushed back.
In 1999, victory came out of Vermont. The Vermont Supreme Court held in Baker v. Vermont that the state had to offer the rights and responsibilities of civil marriage to same-sex couples. The Vermont legislature and then Governor Howard Dean were squeamish about extending marriage to same-sex couples. In response to the Court’s decision, Vermont created an alternate structure called civil unions.
III. Lawrence v. Texas
In June 2003, the Supreme Court released its most significant gay rights ruling to date: Lawrence v. Texas. The Court’s majority, in no uncertain terms (and occasionally poetic language) ruled that Bowers was wrong and had always been wrong. What consenting adults did in the privacy of their own homes was their own business. In other words, the Lawrence Court restored the privacy rights to gays and lesbians that the Bowers Court said did not exist.
As important as Lawrence is, it is also a deeply flawed decision. The Lawrence majority offered no clear indication for the lower courts with regard to how to deal with gay rights cases; this was undoubtedly deliberate. The case was decided on Due Process grounds not on Equal Protection grounds. In layman’s terms the Supreme Court majority said that the act of gay sodomy was protected; the majority said nothing about the legal status of gay people. When a law discriminates, by design or by choice, against a protected group (race, nationality, and gender are the big three), the law is automatically suspect and unless there is a really (really really) good reason for the law, the courts will strike it down as unconstitutional. In deciding Lawrence as it did–as a “protected liberty” case–the majority avoided the question about whether the LGBT community was equally protected by the Constitution.
Why did the Court do this? I have a theory that I believe is correct but cannot say for certain. Courts do not like to make law. Even with a direct constitutional challenge, the courts try to find a way to minimize judicial law making. In overturning Texas’s sodomy law, the majority made as minimal a decision as possible without upholding the law. Deciding this case on equal protection grounds would bring a whole slew of new cases that the majority was not ready to deal with. It does not take a constitutional scholar to realize that same-sex marriage would be at the forefront of these new cases. The majority saw this and blinked. Limiting Lawrence to protected liberty (i.e. privacy rights) was the majority’s way of staving off getting involved in the contentious battle of same-sex marriage and further LGBT rights cases. Nevertheless, not everyone saw Lawrence as merely a privacy decision. Justice Antonin Scalia, writing in dissent, warned that Lawrence would lead to (judicially imposed) same-sex marriage. He may be correct; some courts that have since heard LGBT rights cases have looked to Lawrence as guidance even though despite the majority’s trepidation.
One voice on the Supreme Court did advocate for looking at Lawrence as an Equal Protection case. Justice Sandra Day O’Connor wrote a concurrence that would have held laws that discriminate based on sexual orientation as suspect. While she left open how strictly a court should look at such laws, gay rights advocates would have had a much more powerful tool in their war against oppression. The irony is that Justice O’Connor was in the Bowers majority. What changed? There are two answers. The first is nothing changed. On one level, the Bowers majority and her concurrence in Lawrence are consistent. Bowers was decided on privacy grounds, and that is how the Lawrence majority overturned Bowers. O’Connor appears to be saying that while anti-sodomy laws are theoretically permissible, they must be applied equally to gay and straight people. Since Texas’s law would never (never never!) be applied to a heterosexual coupling, it was unconstitutional.
O’Connor insisted in her concurrence that using an equal protection rubric for sexual orientation would not apply to marriage (unless there was animus behind excluding same-sex couples), but that is not completely honest. This leads to the second and more likely answer for O’Connor’s concurrence: even Justices change their mind. Perhaps between 1986 (Bowers) and 1996 (Romer), she encountered more open gays and lesbians–clerks possibly or maybe people in her social circle. Maybe the education initiatives launched by gay rights advocates made a difference to her somewhere. Maybe as gay people became more normative, her opinion of gays and lesbians changed. Around the time Lawrence came before the Supreme Court, there were rumors in the LGBT community that O’Connor deeply regretted her decision in Bowers and wanted to correct it. Justice Lewis Powell, who was something of a mentor to her, spoke openly about how he would come to regret joining the Bowers majority. Maybe O’Connor felt that her opinion in Lawrence was a way to right a wrong that she helped to create. I cannot say for certain, although it makes for an interesting guessing game.
IV. Gay Marriage Arrives
In 2004, the Massachusetts Supreme Judicial Court released its opinion in Goodridge v. Department of Public Health, and–cliché as it sounds–the legal landscape would never be the same again. Gay rights advocates (and LGBT people as a whole) won their first total and complete victory. In a 4-3 decision, the Court said that marriage had to be opened to same-sex couples and civil unions were not an adequate substitute. The Court gave the Legislature six months to fix the problem or else marriage would automatically go into effect. Although opponents tried to overturn the Court’s decision, there was too much many gay rights allies in the Massachusetts Legislature (that only grew in the years following Goodridge), and same-sex marriage became a reality. On a personal note, I went to the celebrations the night Cambridge City Hall started issuing marriage licenses (trust Cambridge to start issuing the licenses before anyone else.) I have never seen such an expression of joy in my life, and it is a night I will never forget. It is also a reminder that outside of the Dixie Cups’ “Chapel of Love,” there are not many memorable wedding songs. Symbolically, it was a very important night. The day that Massachusetts started issuing marriage licenses to same-sex couples was the 50th anniversary of Brown v. Board of Education.
Immediately following announcement of the Goodridge decision, Gavin Newsom, then-mayor of San Francisco, ordered City Hall to start issuing marriage licenses to same-sex marriages in defiance of state law. Jason West, the mayor of New Paltz, New York, also defied state law and personally presided over 25 same-sex marriages. None of these marriages were valid, but as an act of civil disobedience, it was astounding. However, 2004 was a fraught year in American politics and Newsom and gay marriage were (unfairly) blamed for the reelection of George W. Bush. That year a whole bunch of states also passed anti same-sex marriage amendments for state constitutions. Despite the best efforts of Republicans in the White House and Congress, they could not pass a constitutional amendment banning same-sex marriage in the United States–a stark change from the overwhelming Congressional support for DOMA.
In the years since 2004, the progress of gay rights has been two steps forward one step back. In the courts, same-sex marriage advocates were unsuccessful in Washington, New York and Maryland, had more success in New Jersey (civil unions), and total victory in Connecticut and, of all places, Iowa. The California Supreme Court found the state constitution required same-sex marriage and the Maine Legislature passed a gay marriage bill that was signed into law. Voters in referenda overruled both the California Supreme Court and the Maine Legislature. New York, Rhode Island, Maryland, and soon Illinois recognize out-of-state same-sex marriages even if they do not offer same-sex marriage. Legislatures in Washington, Nevada, Colorado, Wisconsin, Oregon, and Rhode Island offer varying degrees of partnership rights. New Hampshire, Vermont, and Washington D.C. all enacted gay marriage through their legislative bodies. Florida’s adoption ban (created following Anita Bryant’s villainous witch hunt) was struck down by the courts, and it is not coming back. Two very gay-friendly governors were elected in Hawaii and Rhode Island in place of homophobic ones. Neil Abercrombie of Hawaii said he would sign a civil unions bill when it reached his desk, and Lincoln Chafee of Rhode Island refused to even meet with the bigots from NOM. Cases challenging DOMA are coming from all sides now, although their success is less certain given that the make-up of the Supreme Court has become more conservative since Lawrence. Perhaps in a sign of the times, one of the lead attorneys in the battle to overturn Prop 8, the California constitutional amendment that stopped same-sex marriage in that state, is Ted Olsen, George W. Bush’s Solicitor General. When the gay rights advocates declined to challenge Prop 8 (in fear of the Supreme Court), Ted Olsen stepped up and said that justice deferred is justice denied.
I cannot say what will happen in the short-term. In the long-term though the path is very clear. Homosexuality is becoming ever more normative. The generation largely repulsed by homosexuality is dying out and is being replaced by one full of people who have openly gay friends, coworkers, and relatives. Illinois may not be the most progressive state, but it is a definite positive step. The gay friendly members of the Illinois legislature stared down the bigots and won. There is hope.
What I listened to while writing this post: World Football Daily (podcast)