June 26, 2015
Considered one of the top six Chronicle page one designs in paper's history.
In the popular mind, the idea of a man marrying a man and a woman marrying a woman went from absurd to toxic to mainstream with seeming warp speed. Yet the fight for marriage equality began more than three decades ago, and the arc that culminated in Friday’s U.S. Supreme Court ruling was neither smooth nor unbroken.
Only in the past two years did same-sex marriage assume the velocity to topple bans in such unlikely places as Utah and Oklahoma. As recently as 2008, the movement reached a nadir when liberal California banned same-sex marriages at the ballot box with the passage of Proposition 8.
“To lose California was just shocking,” said Richard Socarides, a gay lawyer who served in top positions in the Clinton administration. “There was a feeling that real progress had been within our grasp and we let it slip away.”
Throughout much of the history of the gay civil rights movement, which began organizing with the founding of the Mattachine Society in Los Angeles in 1950, marriage was little more than a footnote.
An obscure court case, Baker vs. Nelson, brought by a Minnesota gay man who argued that the state should allow him to marry his partner, was dismissed in 1972 with a single sentence by the U.S. Supreme Court “for want of a substantial federal question.”
Pete Prete with Equality Beyond Gender waves a flag in support of gay marriage in front of the U.S. Supreme Court in Washington, Jan. 16, 2015. The court had agreed to decide whether all 50 states must allow gay and lesbian couples to marry. The court's announcement made it likely that it would resolve one of the great civil rights questions of the age before its current term ends in June. (Jabin Botsford/The New York Times)
It was the AIDS crisis of the 1980s that brought gay politics into the public consciousness nationally and injected a new level of organization into the gay community. A gay and lesbian civil rights movement began gaining cultural momentum, but marriage was not a priority.
The persistence and conviction of a handful of lawyers, and the eager embrace of marriage by gay and lesbian couples, pushed marriage slowly, fitfully and finally powerfully to the forefront of the movement.
One of those lawyers was Evan Wolfson, founder of Freedom to Marry and co-counsel in a 1993 Hawaii Supreme Court case that ignited the marriage movement and its backlash. The court ruled in Baehr vs. Miike that the state had to show a compelling interest, the highest level of justification, in refusing marriage licenses to same-sex couples.
“For the first time, we were able to get a court not just to rubber-stamp us away, but to insist that if the government wanted to discriminate, it at least had to show a reason,” Wolfson said.
It was “the biggest single turning point that launched this ongoing global movement for marriage,” Wolfson said.
But many gay leaders argued that seeking marriage rights was a blunder, and events seemed to confirm that. The Hawaii victory was soon reversed by the state’s voters, and Republicans in Congress seized the case as a potent political wedge. They pushed through the Defense of Marriage Act in 1996, denying all federal benefits to married gay couples even though at the time, no state allowed such marriages.
Elizabeth Birch, who at the time led the Human Rights Campaign, the nation’s largest gay organization, recalls feeling that her troops in Congress were like farmers battling an M1 tank with “rakes and stones.”
The Defense of Marriage Act, known as DOMA, passed Congress with overwhelming margins and overwhelming public support. Gay leaders felt “deeply betrayed by President Clinton,” Birch said, as well as by liberal stalwarts who voted for the law such as the late Democratic Sen. Paul Wellstone of Minnesota.
California’s Dianne Feinstein and Barbara Boxer were among just 14 senators who voted no, all of them Democrats.
“I had a huge fight with Paul Wellstone,” Birch recalled. “I said if you vote for that, you won't be Paul Wellstone anymore. ... But he voted for it.”
Like the AIDS crisis before it, the DOMA fight elevated media attention to gay issues. “We put a lot of time and effort to getting myriad voices out there and booked on TV so these issues could be articulated,” Birch said.
She recalled a debate on the “MacNeil/Lehrer NewsHour” with lead DOMA sponsor Rep. Bob Barr, R-Ga. “I was able to say to Congressman Barr, ‘Excuse me, there’s some confusion out there — which marriage are you defending, your first, your second or your third?’”
Still, her organization spent $1.7 million in Hawaii trying to defeat the voter initiative overturning the state Supreme Court’s legalization of same-sex marriage, “and we failed utterly.”
Yet such fights brought more people out of the closet, helping advocates point out that the law was discriminating against friends, family, co-workers and neighbors. The murder of University of Wyoming student Matthew Shepard near Laramie, Wyo., in 1998 shocked the national conscience, and his mother, Judy Shepard, became an outspoken activist for gay rights.
A year after DOMA’s enactment, attorney Mary Bonauto challenged Vermont’s marriage laws, forcing the state Legislature to create civil unions in 2000. It was a novel legal classification that backers thought would pacify gays while preserving marriage for heterosexuals only, one that California adopted in 2005.
In 2003, Bonauto won a stunning victory in the Massachusetts high court that brought marriage rights to same-sex couples in a U.S. state for the first time. It catapulted the gay civil rights movement from piecemeal fights over discrimination in employment and housing to the core issue of gay exclusion, and lesbians and gays who wed in Massachusetts began to undermine the argument that allowing same-sex unions would damage the institution of marriage.
The U.S. Supreme Court began to lay the foundation for marriage rights by striking down state sodomy laws that criminalized gay relationships, in its landmark 2003 decision in Lawrence vs. Texas.
Stars come out
Hollywood had already stepped into the battle with television shows portraying gays and lesbians. Prominent people began to come out of the closet, including singer Melissa Etheridge in 1993, but the big splash was comedian and television star Ellen DeGeneres in 1997.
“Her career could have been ruined,” said Socarides, the former Clinton administration lawyer. The only Hollywood star most people knew before DeGeneres who was out of the closet was Rock Hudson, Socarides said, “and they knew about him only because he was dying of AIDS. (DeGeneres) was the only famous gay person.”
Maggie Gallagher, president of the Institute for Marriage and Public Policy, which opposes same-sex marriage, credits gay activists for the cultural drive to present “a plausible image of gay love that was different from the 1980s, and making people know and understand real gay lives,” even as she said the movement was “using their cultural influence to shut down debate in the media.”
Yet same-sex marriage opponents continued to win on the political front.
The 2004 presidential election brought a tidal wave of 14 state bans on same-sex marriage, which were seen as a reaction to San Francisco Mayor Gavin Newsom’s order that spring to issue marriage licenses to gay and lesbian couples. Many Democrats even blamed the San Francisco weddings, soon shut down by the courts, for President George W. Bush’s re-election victory. Bush had endorsed a federal constitutional ban on same-sex marriage.
Feinstein said after the 2004 election that the San Francisco weddings were “too much, too fast, too soon.”
Most of the marriage bans were in conservative states. But when Prop. 8 passed in California four years later, the shock re-energized the gay movement and set in motion the final push, said Socarides.
California activist Chad Griffin allied with the strange-bedfellows legal pair of Democrat David Boies and Ted Olson, a Republican and former solicitor general in the Bush administration, to argue for a fundamental constitutional right to marriage. Both attorneys were top Supreme Court litigators.
“The response to Prop. 8 in all of its cleverness and all its audacity really moved the ball forward,” Socarides said.
Taking on DOMA
On a parallel track, attorney Roberta Kaplan launched an assault on DOMA with plaintiff Edie Windsor, a widow from a 44-year lesbian relationship. When her partner died, she was forced to pay more than $600,000 in estate taxes that she would not have owed if the federal government recognized her marriage.
“People saw the dignity and the authenticity that Edie Windsor brought to the crusade,” Socarides said. “She became a face of the gay rights movement, and no one could deny her because she was so dignified and so authentic.”
Gallagher conceded that opponents of same-sex marriage ultimately were outmaneuvered. “We have spent 35 years pretending to be in politics without actually building political institutions that can elect our friends and un-elect our opponents,” she said.
The Supreme Court took up both the Prop. 8 and Windsor cases. In June 2013, the court in effect struck down the California ban without finding a fundamental right to marriage and, in Windsor, overturned the Defense of Marriage Act in a sweeping decision by Justice Anthony Kennedy, who also had written the 2003 decision striking down state sodomy laws. Kennedy wrote Friday’s decision finding a constitutional right to marriage nationwide.
In the DOMA case, Kennedy wrote that the law “tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition,” creating a “second-tier marriage.” He added that “it humiliates tens of thousands of children now being raised by same-sex couples.”
Justice Antonin Scalia warned in his dissent that if the court abandoned moral disapproval of same-sex relationships as a reason to discriminate, “what justification could there possibly be for denying the benefits of marriage to homosexual couples?”
Scalia proved prescient. Over the next two years, courts across the country struck down state marriage bans based on the reasoning in Windsor.
“I always believed that once we had our day in court, once we were able to really have serious consideration of whether there is a good reason for excluding gay couples from marriage, we would win,” Wolfson said. “Once you move away from disdain for gay people or fear about gay people, which is what (opponents) used to be able to rely on, there really is no good argument left.”
Carolyn Lochhead was the Washington correspondent for the San Francisco Chronicle, where she covered national politics and policy for 27 years. She grew up in Paso Robles (San Luis Obispo County) and graduated from UC Berkeley cum laude in rhetoric and economics. She has a masters of journalism degree from Columbia University. Twitter: @carolynlochhead