Breaking News: Texas Messed With

Today, yet another federal judge struck down yet another state marriage ban.  Again, the judge relied on United States v. Windsor, which is truly the gift that keeps on giving.  This time the state is Texas.  Texas is not necessarily the worst state in the country (that dubious honor perpetually belongs to Mississippi), but, Austin excluded, Texas has a pretty bad reputation, especially under the ever-growing Tea Party influence.  Unfortunately, Texas is the second most populous state in the country and is vitally important to the national economy, so as much as some of us may wish Mexico would take it back, that just ain’t gonna happen.

Since Windsor, marriage bans in full or in part have fallen in states with particularly heinous records on gay rights: Utah, Oklahoma, Virginia, Kentucky, and now Texas.  Texas was one of the few states that still enforced sodomy laws, and was the opposition party in Lawrence v. Texas, the Supreme Court case which struck down those laws.  The decision out of Texas today is not particularly groundbreaking legally–the ban was struck down through both a rational basis review under the Equal Protection Clause and a strict scrutiny review of the Due Process Clause–but that is only because at this point in time (post-Windsor) such an expansive decision is legally conservative.  This decision will be appealed to the very conservative 5th Circuit, and that will be the most interesting decision yet: either the most conservative court in the country will buck the heretofore unanimous trend and find in favor of a state ban or it will acknowledge that Windsor effectively prohibits such bans.

However the 5th Circuit rules, these cases are headed back to the Supreme Court–and sooner rather than later.  Within a matter of months, there will be decisions out of the 4th, 5th, 6th, 9th, and 10th Circuits.  Can the others be far behind (excluding the 1st and 2nd in which all the states are marriage equality states)?   My question is not about when the Supreme Court takes up the issue, because the answer is obviously next term.  My question is whether the Supreme Court will review just one of those cases (a la Windsor) or combine all of the pending cases into a days-long super-case like Brown v. Board of Education.

Stay tuned.

On 8

When Perry v. Schwarzenegger, the since-retitled Prop 8 case, went to trial, it was videotaped.  Cameras in the courtroom is a vaguely controversial topic in legal and judicial circles, but the Ninth Circuit Court of Appeals established a pilot program for courtrooms in its jurisdiction that allowed for the video recording of cases, presumably those that were interesting (a rare occurrence as trials in general are duller than dull), which would be available to the public.

This kind of program is not without precedent; oral arguments from the Ninth and Second Circuit Courts of Appeals are available on C-SPAN (and geek that I am, I have watched some), but generally cameras in the courtroom are taboo.  The Supreme Court is the course the biggest culprit in keeping the courtroom free of video recordings, and the Justices steadfastly (and apparently unanimously) refuse to allow video cameras in even when Congress demands that they do.  David Souter famously told the Judiciary Committee they could have video cameras in the Supreme Court when they rolled them in over his dead body.  Personally, I am surprised that the Supreme Court even allows its oral arguments to be audio recorded, but I suppose it’s been there long enough (since Earl Warren’s day) that it’s now safe.  You can access the recordings if you are so inclined, and again, geek that I am, I have.

Therefore, it came as no surprise when the Supreme Court, possibly afraid that people might want to see how justice gets done in this country, granted the request from the Prop 8 proponents to keep the tapes hidden.  Now, it is true that there is nothing in the Constitution that mandates that trials and arguments must be recorded.  Nevertheless, it violates the spirit of the constitutional mandate for open proceedings to deny video cameras in the courtroom.  In the Internet Age, the only way to watch a trial is still to physically go to the courtroom. Unless you are a criminal law attorney or a judge, you probably cannot do that very often.  And if the case draws massive media attention, you have almost no shot of getting in.

Which brings us to 8.  Because the Perry tapes have been sealed away, possibly forever, Dustin Lance Black, the screenwriter of Milk fame, wrote a play about the Perry trial with dialogue largely taken from the trial transcripts.  The first reading was in New York and a second reading was recently staged in Los Angeles and was streamed live over the Internet.  Ergo, more people have “watched” the trial than would have done so had the actual recordings been made publicly available.  You can still watch it at a variety of sites, and I did so at Slate8 is a work of political theater, and this reading (which was rewritten a bit after the first) was performed by, among others, Brad Pitt, George Clooney, the recently out Matt Bomer, three cast members from Glee, Martin Sheen, George Takei, John C. Reilly, Christine Lahti, Kevin Bacon, and Jamie Lee Curtis.  Rob Reiner directed it, and no doubt the spirits of Carroll O’Connor, Gregory Peck, and Elizabeth Taylor blessed the show.


First a word about my post title “On 8.”  I originally thought to call this post “No On 8,” which was also the slogan of the LGBT rights movement during the Prop 8 referendum.  It also would have hinted at some of the reservations I had watching the reading.  On the other hand, as a title, it is glib, which I did not want to be regardless of my feelings about 8.

I hate being the gay contrarian, but more than that I hate pretending.  I hate pretending that something is good just because I agree with the fundamental message.  I hate the idea that I have to go along with the group think and love Glee or Will & Grace (or pretend to) when both are terrible.  I especially hate the idea that I should be thankful to those shows because of this flawed idea that since that they have aired, straight people accept us more.  (The cause and effect in that thinking is backwards.  Those shows exist because homosexuality is more accepted in society not the other way around.)  I cling to the stubborn idea that good gay-themed entertainment is infinitely better than mediocre fare regardless of message or popularity.

I did not love 8.  The acting was generally very good, although criticizing acting in a hastily organized, staged reading misses the point.  This was not a performance, and there really was no rehearsal time (this reading was really just a dressed up fundraiser for Americans for Equal Rights).  Only Martin Sheen was a problem; he has gotten even hammier since his West Wing days.  For me at least, it was difficult to suspend disbelief because I have heard the real Ted Olsen argue cases, and he is quite a different personality.  Olsen is also very level and calm while Sheen over-emoted to the point of turning red.  Ted Olsen is many things, but Jed Bartlett he is not.  While Sheen tried to turn Olsen’s closing argument into a monologue worthy of King Lear, in my mind I heard Olsen speaking them, and that was more affecting.   Dignity trumps fireworks every time.  (On the other hand, John C. Reilly’s turn as the loathsome boob David Blankenhorn was incredibly funny, and although he too overdid it, in the context of the actual complete humiliation that David Bois handed to Blankenhorn at trial, it worked.)


I admit that I am a very bad gay in that I don’t worship theater, so take my opinions of the show with that grain of salt.  There is something so artificial about theater that doesn’t exist in movies, and I really have a tough time with the artifice of plays.  It’s my problem not 8‘s, but it did affect my enjoyment.

I wish a lawyer, or someone at least familiar with a courtroom, had written this play.  This is not meant to disparage Dustin Lance Black.  I respect his work; I loved Milk and cried at the end.  But a trial has its own rhythms, its own patterns, its own language, and I don’t think Black understood that.  (No doubt there are a zillion lawyers out there who disagree with me.)  There was something about the temporal inconsistency of the script that was just off, no doubt reflecting how hard it is to turn a multi-day, multi-stage trial into an hour and a half theatrical work.  I wonder if a non-lawyer who has neither watched trials and oral arguments nor read courtroom transcripts would feel that disruption.  Once again, perhaps this is my problem and not Black’s.

What bothered me the most though was the script’s focus on the Perry plaintiffs.  In particular, the focus on Kris Perry and Sandy Stier and the adorable moppets who are their sons felt incredibly fake.  Or worse than fake, it felt like propaganda.  It’s hard to write this because I am writing about real people who are doing something incredibly brave (and risky), and whom in real life I admire very much.  But even though they are the plaintiffs, Perry is not about Kris Perry, Sandy Stier, Jeff Zarrillo, and Paul Katami.  They are merely the vehicles.  Just as in Lawrence v. Texas, Perry is about every gay and lesbian person in the United States regardless of whether they plan on marrying someone of the same sex.  The theatrical device of an everyman (in this case the four plaintiffs) just doesn’t work here.  The trial spoke for itself.

8 is too ambitious for its own good.  The original purpose of the production was twofold: (1) to find a way to transmit the visuals of the Perry trial since the video tapes have been sealed; and (2) to raise money for Americans for Equal Rights (Black is a founding board member of AFER).  Now it appears that there is a third purpose: to be made into a television movie for HBO that will win acclaim and Emmys by the truckload.  That self-conscious ambition hurts 8 on an artistic level.


Maybe the problem is that 8 is not a compelling piece of theater because dramatically it is lacking.  I am not talking about the use of trial transcripts because the most effective parts of the show were from the trial and the least effective parts were when the play stayed from the transcript.  The problem is that in a battle between rights and wrong, which is what 8 is ultimately about, there is no compelling villain.  From a political perspective this makes sense, why humanize your enemy?  Because 8 is ultimately political, if cannot afford to make a villain someone the audience would secretly like.  From a dramatic point of view though, this is deadly.  What is Othello without Iago, Angels in America without Roy Cohn, or Paradise Lost without Satan?

Frankly, who would the gay rights movement want to build up?  Those who are opposed to the LGBT rights movement–James Dobson, Randall Terry, Tony Perkins, Pat Robertson, the evangelicals, the Catholic and Mormon Church hierarchies, the national Republican party, etc.–what do they offer?  What good does humanizing them do?  Nothing really.  From a dramatic point of view the only effective villain is Maggie Gallagher.  Ever since I read the Salon profile of her, I have been both fascinated and horrified.  Maggie, unlike the rest of he ilk, is intelligent, and surprisingly enough given how horrible she is, appears to have no actual animosity toward gay people.  Yet Maggie has completely forsaken empathy and humanity in favor of blind devotion to a cause.

It was not until I saw Jane Lynch portray Maggie in 8 with fire-breathing panache that I realized that Maggie is a 21st century Louise Day Hicks.  Hicks was a Boston politician, and the chairwoman of the all-powerful Boston School Committee in the 1960’s.  Under her leadership, the Committee resisted integrating the deeply and unfairly segregated Boston inner-city schools, a resistance that only intensified after the Garrity decision.

When the Garrity decision was announced, Hicks founded ROAR (“Restore Our Alienated Rights”), the primal scream of rage against integration from the Boston Irish.  Unsurprisingly–and with good reason–Hicks and ROAR became the face of Boston racism.  The irony though is that it is unclear if Hicks herself was racist.  J. Anthony Lukas, in his masterful book Common Ground, the classic book about school integration and race relations in Boston, suggests that Hicks was not racist (as opposed to George Wallace or Hicks’s allies at ROAR) so much as a consummate politician who knew her constituency and channeled their rage for her own political gain.

And that to me is more about who Maggie Gallagher is.  She is not a second Anita Bryant so much as a second Louise Day Hicks, someone who sold her soul for politics.


There is one final problem with 8, and that is the self-congratulatory nature of the people behind it.  I watched Rob Reiner and Dustin Lance Black say that this is the final leg of the race that is the civil rights movement, and my jaw dropped in shock.  This speaks to an incredible myopia, which is I am pretty sure is not how AFER sees the struggle.  I wonder if AFER will still exist when the marriage fight is won.  That isn’t the last hurdle even if it is made out to be.  Civil rights is an ongoing struggle that will change and mutate with each generation.

Perry is not the end, but rather the end of the beginning.  For years now the groundwork has been laid; everything up until now has been prologue for the fights that are to come.  It was important and necessary, but it was merely the start.  This year, marriage laws passed by Washington and Maryland will be up for referendum; activists in Maine have gotten marriage onto the ballot in that state; New Jersey’s governor has vetoed a same-sex marriage bill there, and his veto needs to be overturned; preparations must be made in California in case the Supreme Court overturns Perry; the victory in New Hampshire was not close, but it is still no reason to relax; there is movement to try to get the same-sex marriage ban in Ohio removed; and bans on same-sex marriage are up for public referendum in Minnesota and North Carolina.  This is with the backdrop of the DOMA cases working their way through the courts, a bill to repeal DOMA in the Senate (which won’t pass a filibuster and won’t get approval from the House), the fights for ENDA, the Student Non-Discrimination Act, housing equality, immigration reform that treats same-sex couples fairly, transgender rights, benefits for the same-sex spouses of federal employees, and overturning same-sex marriage bans in the majority of states.

No, we are not in the last leg.  The fight has just intensified.  The Great Work begins.

Lawrence Revisited

A tempest in a teapot has emerged in legal circles over the past week.  Dale Carpenter, a libertarian/conservative, gay law professor at the University of Minnesota Law School, published his new book, Flagrant Conduct,* which details the story behind the seminal gay rights case Lawrence v. TexasLawrence is a case which I have many reservations about, but I have been waiting for a book like this since the Justices announced their decision in 2003, and I cannot wait to read it.  I also have reservations about Carpenter, but I suppose it could only be he who wrote the book, primarily because he eviscerated the gay rights movement’s most cherished myth about the case–John Geddes Lawrence and Tyron Gardner, the interracial couple who were arrested for having sex in their home, were (1) not a couple, and (2) not having sex when they were arrested.

Carpenter’s book received surprisingly little attention on the gay blogs until a bombshell hit; Dahlia Lithwick of Slate wrote a very positive review of the book for The New Yorker where she discussed at length the truth behind Lawrence.  Although Lithwick insinuated that the lawyers behind Lawrence were somewhat disingenuous about presenting the facts, she (and Carpenter too) was clear that there was nothing dishonest in the case made to the Supreme Court.

The first angry response came from Kevin Cathcart, the Executive Director of Lambda Legal, and a man deeply involved with the Lawrence strategy.  His defense however, was very weak tea; it amounts to him claiming that the litigation team never misrepresented the facts–a completely different charge from the one Lithwick (and Carpenter) supposedly leveled at Lambda and Co.  It’s not a fair (or good) rebuttal, and I am not alone in noticing that.  Carpenter did his research, and Cathcart does not rebut anything factual.

Others have also jumped into the fray.  Ari Ezra Waldman,’s resident law professor, took a macro view.  Siding with Cathcart, Waldman wrote that Lithwick did not understand “what gay rights are really all about.” His argument is that Lambda Legal and company simply took a case that could bring them victory and crafted the appropriate litigation to put the best facts forward (as any good lawyer should).  Waldman is a bit in love with his own writing, and it is sometimes difficult to get his point, but his (stripped down) argument is that it wasn’t so much Lawrence and Gardner who were the focus of the case, but rather gay people as a whole.  In this he is correct.**  Where Waldman is incorrect is in claiming that Lithwick misunderstood this, which is not true.  A close reading of her New Yorker review indicates that she very much gets this.  For his part, Waldman fails to comprehend that Lithwick is not evaluating legal strategy; she is reviewing a book about the Lawrence litigation.

In contrast, on Salon, Linda Hirshman takes a micro approach and focuses completely on Lawrence and Gardner in a blog post provocatively titled “Lowlifes deserve justice too.”  Hirshman argues that it is rare for the perfect plaintiff to appear, and almost never in a criminal case, which Lawrence was.  This is something Lithwick discussed in her review.  Because of issues such as child custody and employment, gay couples who would otherwise be “perfect plaintiffs” would not (and indeed could not) get involved.  Hirshman, like Waldman, is correct in the points she makes, but she completely misses the point of the entire controversy.  The issue is not whether Lawrence and Gardner were the best of all possible plaintiffs (clearly they were), but whether their lawyers represented them honestly.

I cannot comment on Carpenter’s book, not having read it, but I do feel secure when I say that everyone from Lithwick onward has completely missed the most important point about Lawrence.  It had nothing to do with John Lawrence, Tyron Gardner, or their lawyers and everything to do with the nine Justices of the Supreme Court.

The implication behind the debate between Lithwick and her defenders is that the Justices cared about the facts of the case.  They did not.  Nor does this debate give the Justices enough credit.  Each one of them was at one time a lawyer, and all of them had served as judges for years.  They all understood how lawyers write briefs.  Moreover, whatever bad facts the attorneys for Lawrence and Gardner wrote in the briefs, the Justices had seen much worse.  Waldman was right when he wrote that all gay people were on trial, but he failed to take that idea to its logical conclusion; the Justices also understood that all gay people were on trial.

Courts are law-making bodies.  We hear foolish arguments about courts as “super legislatures,” but the truth is that courts, in addition to being interpreters of the law, are a check on the tyranny of the majority.  That is why federal judges are given lifetime tenure and their pay cannot be decreased–so that they are not pressured when they have to make tough decisions.  People tend to forget–or ignore–that court-made law is also law, and it always has been.  It has been this way since Marbury v. Madison and probably even earlier.

In 1986, at the height of the AIDS crisis, a majority of the Supreme Court in Bowers v. Hardwick pushed back on the Warren Court and sexual revolutions.  Perhaps allowing a distaste for homosexuality to get in the way of what was correct both morally and legally, 5 Justices found no constitutional right to adult, consensual, homosexual sex even in the privacy of one’s bedroom.  In the decade following Bowers, six of the nine Justices stepped down and were replaced.  Some of those replacements were more inclined to be friendly toward gays and lesbians both personally and in their jurisprudence.  Concurrently, a massive education campaign began, which penetrated even into the halls of the Supreme Court.  One of the Justices in the Bowers majority (Lewis Powell, who had stepped down in 1987) publicly admitted that he made a mistake, while another (Sandra Day O’Connor, who remained on the Court through Lawrence) privately felt the same.

In 1996, the new Supreme Court got its first chance to signal that it was ready to overturn Bowers in a case called Romer v. Evans.  Although Romer did not directly overrule Bowers, it was practically a plea to gay rights advocates to bring a case that would allow the Court to do so.  One Justice, Antonin Scalia, was especially annoyed by this, and if you thought his dissent in Lawrence was scathing, you haven’t read his Romer opinion.

With Lawrence, the Supreme Court got the case it was looking for, and (like Congress in 2010 with Don’t Ask Don’t Tell) a majority overturned the earlier law.  Four of the five justices in the majority opinion joined the Court after Bowers, including the opinion’s author Justice Anthony Kennedy.  The fifth Justice, John Paul Stevens, had been in the Bowers minority.  O’Connor, not wanting to lose face by publicly admitting she was wrong, wrote a concurrence that actually went beyond the majority in terms of protection for gays and lesbians, but did so from a different legal avenue.  In other words, the majority opinion said there is a fundamental right to private, adult, consensual homosexual sex; O’Connor said, there is no such right, but because straight people would not be arrested under such law, it unfairly targets gay people and for that reason is unconstitutional.  Both the Lawrence majority and O’Connor’s concurrence were about gay people as a whole.

When a case gets to the Supreme Court, it is no longer about the parties involved; it is about the principles.  That is why in the end, Lawrence and Gardner themselves made very little difference.  That is also why gay rights advocates were, and to some extent still are, so nervous about Perry v. Brown, the Prop 8 case.  The question is not whether the Justices will be swayed by the stories of four upstanding plaintiffs; the question is whether the Justices feel that now is the right time to start moving ahead with same-sex marriage.

* There are three types of books about Supreme Court cases.  The first is a book about a specific case, how it came to be and how it came before the Supreme Court.  Call this the Gideon’s Trumpet paradigm after Anthony Lewis’s famous book about Gideon v. Wainwright.  This is the kind of book that Flagrant Conduct is.  The second type of book is a history of a movement, which, for obvious reasons, is far longer and much more dense.  The most famous example of this kind of book is Richard Kluger’s Simple Justice, which details the Civil Rights Movement’s legal strategy culminating in Brown v. Board of Education, although Brown is neither the beginning nor the end of the book.  For the gay rights movement, there is no Simple Justice equivalent, but we are not yet at the point where such a book can or should be written.  Finally there are the biographies of the Justices themselves, almost always written after their deaths and after their papers have been opened to researchers.  Only one of the Justices who heard Lawrence has died, and while three have retired, no books are forthcoming in the foreseeable future.

** I make a similar point in another blog post that is currently in the editing process.  The Lithwick affair cropped up while I was writing that post, and I felt like I needed to write about the kerfuffle before I could complete the post I had been writing.

Illinois: Gay Rights and Forward Momentum

I. Overview

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.

V. Conclusion

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)