Marriage equality actually is not about individual liberty at all. What has come to be known as marriage equality is actually all about the public acknowledgement that, like it or not, LGBT families exist and that those families are entitled to the same respect and support as more traditional families. It is the acknowledgement that these families exist and will continue to exist that is the defining, essential building block of the most significant marriage equality decisions.
While some commentators today seem to subscribe to the notion that marriage equality is and always has been inevitable, the fight for LGBT rights was never easy and never a certainty. Indeed, there were times, very recent times, when it seemed a long-shot, if not hopeless.
The landmarks for marriage equality are relatively easy to identify. How the courts, the legislatures, and the public moved from point to point to point is a bit less obvious.
In 1986, a majority of the United States Supreme Court rejected the argument that LGBT persons had a right to privacy that protected them from prosecution for sodomy in approximately half of the states of the nation and in the District of Columbia. Justice White wrote that it was “at best, facetious” to argue, as the private plaintiff did in Bowers v. Hardwick, 478 U.S. 186, 194 (1986), that the previously recognized right to privacy included such immoral conduct. Id. at 196 (Burger, C.J., concurring) (the ban on sodomy “is firmly rooted in Judeao-Christian moral and ethical standards”). Justice White wrote that all of the Court’s prior privacy decisions had concerned child-rearing and education, procreation, marriage, contraceptives, and abortion. Id. at 190. White went on to write that “No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.” Id. at 191. Inadvertently, for sure, the Bowers decision gave LGBT advocates a roadmap on how to get Bowers overturned and how to get LGBT equality recognized.
In 1986, LGBT relationships and families existed, albeit typically in the closet and outside the traditional mainstream view of the law. As of 1986, no out LGBT advocate had ever appeared to argue in the United States Supreme Court. See generally, Adam Liptak, Exhibit A for a Major Shift – Justices’ Gay Clerks, N.Y. Times, June 9, 2013, at A1 (“At the time, it was often professionally hazardous for gay lawyers to come out”). It is generally acknowledged that GLAD’s John Ward, who argued Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), was the first out gay lawyer to argue in the Supreme Court.
Thus, in 1986, perhaps many of the sitting, elderly justices had never actually known anyone who was open about being LGBT. It was easy in 1986 to perceive and write about gays as outsiders, persons unlike the justices themselves, and to ignore that LGBT families existed, as Justice White did.
As a result of Bowers, from 1986 to 2003, long-time LGBT partners living not only in Atlanta but also in the District’s Dupont Circle or in Chicago’s Boystown, who had been together, raised a family, and supported each other in relationships that may have weathered decades, could have been criminally prosecuted for what they did intimately behind closed doors with the curtains closed. That was because their connections and their families had been invisible in 1986 and had been therefore easy to ignore. Because of the closet, there was no “demonstrated” connection to family.
The AIDS epidemic that began several years before Bowers had two beneficial consequences. First, it radicalized the LGBT community. Second, it involuntarily outed many gay men. It also showed, to those who looked, that there were many long-time partners who cared for each other through the most difficult and excruciating of crises, the terminal illness of a loved one. Borne of that period was a Gay Rights advocacy that perceived the struggle for rights as truly one of life or death. Coming out of the closet and self-identifying became a political act of protest, survival, and courage. During the height of the AIDS crisis, certainly the focus was on comforting the ill and saving lives, but these difficult times also demonstrated that there were many LGBT-based relationships and, indeed, families.
Shut down on the federal constitutional front by Bowers, those seeking equality for LGBT persons turned locally and to the states. Here and there, real rights were won. Nondiscrimination laws were enacted in some states and locales. Gays were allowed to adopt in some states. Second parent adoption was recognized in some states. Progress — spotty, difficult, and often controversial — was made here and there.
Such progress produced a backlash. In Colorado, state voters enacted a state constitutional amendment barring any laws that sought to benefit LGBT residents or include LGBT nondiscrimination provisions at the state and local level. In 1996, in Romer v. Evans, 517 U.S. 620, 631-32 (1996), just ten years after Bowers, the Supreme Court struck down the Colorado constitutional amendment, seeing it as a means of disenfranchising LGBT persons that could not survive even “rational basis” equal protection scrutiny.
Romer is seen, quite properly, as an initial watershed moment in achieving LGBT rights. What it did was preserve the right for change to come for LGBT citizens. Preservation of that ability to provide nondiscrimination laws to protect LGBT individuals also preserved the ability of LGBT families to be recognized and supported at the local level, if not the federal level.
Lawrence and Goodridge
Like bookends, Lawrence v. Texas, 539 U.S. 558 (2003), and Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003), made 2003 a turning point for LGBT rights. In Lawrence, the U.S. Supreme Court majority opinion overturned Bowers. Although the Lawrence opinion focuses on a question of personal liberty protected by the constitution, it contains brief, explicit recognition of the existence of LGBT relationships:
Persons in a homosexual relationship may seek autonomy for these purposes [of personal freedom], just as heterosexual persons do.
Lawrence, 539 U.S. at 574.
Goodridge picked up where Lawrence left off. Whereas Lawrence was based on the Supreme Court’s concept of individual freedom and merely gave a nod to same sex relationships, Goodridge was a state constitutional decision all about LGBT relationships and families. In the years between Bowers and Goodridge, more and more LGBT families had been formed and, even more importantly, more and more LGBT families had come out of the closet and declared their need to be recognized. In Goodridge, the Supreme Judicial Court wrote:
[E]xtending civil marriage to same-sex couples reinforces the importance of marriage to individuals and communities. That same-sex couples are willing to embrace marriage’s solemn obligations of exclusivity, mutual support, and commitment to one another is a testament to the enduring place of marriage in our laws and in the human spirit.
Goodridge, 440 Mass. at 337. Many have described Goodridge as a singular turning point in not only marriage equality but also more generally in LGBT equality. In Goodridge, the LGBT community found its voice, told the Court that the LGBT community had families too, which warranted equal treatment under the Massachusetts Constitution. It is as though the LGBT community finally found the courage and the voice to speak about their own families and relationships. And, the Court had the courage to listen and to respond.
Having found its familial voice in Goodridge, the LGBT movement realized that this same familial voice could eventually lead to equality at the federal level as well. In United States v. Windsor, 133 S. Ct. 2675 (2013), decided this year, almost a full ten years after Lawrence and Goodridge, the Court writes extensively about the negative impact that the Defense of Marriage Act had on LGBT families, including the children of such families:
Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound.
. . . .
DOMA . . . brings financial harm to children of same-sex couples. It raises the cost of health care for families by taxing health benefits provided by employers to their workers’ same-sex spouses. . . . And it denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security.
Windsor, 133 S. Ct. at 2694-95 (citations omitted). As eloquent as the words of Justice Kennedy are in Windsor, these words could not have been spoken if LGBT families had not self-identified and sought their rights in the last two decades. The LGBT community saw the challenge laid down by Bowers in 1986, when the Court dismissed the community’s privacy argument with the comment: “No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.” 478 U.S. at 190. Actually, LGBT families did exist. Many of them. And because these families existed in reality and came out of the closet, gay marriages now exist in all New England states and the U.S. Constitution will not let the federal government discriminate against such state-sanctioned relationships.
Richard Yurko is the founding shareholder of the business litigation boutique, Yurko, Salvesen & Remz, P.C. Mr. Yurko also serves as a Board member and Treasurer of Gay & Lesbian Advocates and Defenders (GLAD).