Constitution Check: Who gets credit for the same-sex marriage revolution?

Lyle Denniston looks at a recent public debate about who really sparked the movement toward an equal right to marry for same-sex couples.

THE STATEMENTS AT ISSUE:

samesexmarriage“It is clear that some in the gay legal establishment, which for years painstakingly built an incremental path toward marriage, remain resentful of the attention given to the ‘stop waiting’ approach” of high-profile lawyers Theodore Olson and David Boies. “Backed by Hollywood activists and fundraisers, [the two] became an irresistible attraction for the news media when they shrugged off warnings from longtime activists that they were moving too quickly.”

– Robert Barnes, reporter for The Washington Post, in an article on May 11 about the “shotgun wedding” of lawyers for same-sex marriage advocates joining forces to pursue their common legal cause after previously diverging on strategy.

“Journalist Jo Becker has a new book out on the marriage equality movement. The revolution began, it appears, in 2008. And its Rosa Parks was a man you would be forgiven for knowing nothing about, Chad Griffin…For Becker, until the still-obscure Griffin came on the scene, the movement for marriage equality was a cause ‘that for years had largely languished in obscurity.’…The man who actually started that revolution was Dan Foley, a straight man from the ACLU, who filed the key lawsuit.”

– Andrew Sullivan, in an April 16 column on his website, The Dish, challenging the scope of a book by New York Times writer Jo Becker, titled “Forcing the Spring: Inside the Fight for Marriage Equality.”

Jo Becker’s “tight lens on the [Proposition 8 case] play-by-play fails to capture the decades of crucial – and painstaking – work that had been accruing in the movement already….Maybe because she’s such a versatile reporter, Becker saw the big picture. The fight for marriage equality did not end in a total victory on the Supreme Court steps [in 2013] but triumphed in a higher court, the court of public opinion. It may not be the story she set out to tell, but it’s a great one nonetheless.”

– Linda Hirshman, in a review of the Becker book in the Sunday Book Review of The New York Times on April 27. (Ms. Hirshman is herself a chronicler of gay history, with her book “Victory: The Triumphant Gay Revolution.”)

WE CHECKED THE CONSTITUTION, AND…

In the ranks of every revolutionary force to change the American Constitution are foot soldiers, generals, grand strategists and – in modern times – publicists.   It is very difficult, even in hindsight, to pick out who started the revolution. And, if it succeeds, it is almost as difficult to decide who should get the credit. As President John F. Kennedy said in 1961, after a failed U.S. military adventure at the Bay of Pigs in Cuba, “Victory has a thousand fathers; failure is an orphan.”

It would be hard to dispute that Thurgood Marshall as a lawyer was a key figure in the civil rights revolution, or that attorney Ruth Bader Ginsburg had the same rank in the women’s rights revolution, although they hardly labored alone in their causes.   But it also may be premature to even begin to assess who will turn out to be, or to have been, the spark of the gay rights revolution – and, in particular, the movement toward an equal right to marry for same-sex couples.

As courthouse victories in favor of same-sex marriage emerge, one after the other in a steady stream, and as the expectation builds that there will one day be a constitutional victory in the Supreme Court itself, it is hardly a surprise that journalists and historians have begun searching for where it all started, who was present at the origin, and who will be there to claim the laurel of ultimate triumph.

Constitutional revolutions are, by nature, a broad mix of many efforts with many origins. From time to time, though, as they progress, revolutions are moved along by individuals who seem to stand out, at least temporarily, as agents of the aspiration for a better constitutional time.

In April 1983, one such individual might have been found in the Harvard Law School, a student named Evan Wolfson. That is when he wrote a class paper titled “SAMESEX MARRIAGE AND MORALITY: The Human Rights Vision of the Constitution.” It concluded this way: “For gay men and women, who also love, samesex marriage is a human aspiration, and a human right. The Constitution and real morality demand its recognition. By freeing gay individuals as our constitutional morality requires, we will more fully free our ideas of love, and thus more fully free ourselves.”

Six years later, there was Andrew Sullivan, with a memorable essay in New Republic magazine under the title “Here Comes the Groom: A (Conservative) Case for Gay Marriage.”   It contains these passages: “Gay marriage…allows for recognition of gay relationships, while casting no aspersions on traditional marriage. It merely asks that gays be allowed to join in….Legalizing gay marriage would offer homosexuals the same deal society now offers heterosexuals: general social approval and specific legal advantage in exchange for a deeper and harder-to-extract-yourself-from commitment to another human being.”

A few years later, history’s call came for Nina Baehr, a Hawaiian lesbian who would give her name to history when Hawaii’s Supreme Court in May 1993 (in the case of Baehr v. Levin) ordered a trial on the claim that same-sex couples should have equal access to marriage. Ms Baehr and her partner, Genora Dancel, along with two other same-sex couples, would win that trial, only to see the result overturned by a ballot measure giving the state legislature permission to limit marriage to heterosexual couples.   Among their lawyers was Dan Foley, with assistance from Evan Wolfson.   (Author Michael J. Klarman has described the pursuit of marriage licenses by these Hawaiian couples as the beginning of “the modern epoch of gay marriage in the United States.”)

Inspired by the seeming promise that Hawaii’s development at least hinted at, a New England lawyer, Mary Bonauto, would emerge as part of a small team that began preparing the legal ground for an initial victory in the Vermont Supreme Court (partly frustrated when the state legislature responded not by allowing same-sex marriage, but by passing the first law allowing civil unions as an alternative).

And it would be Bonauto and the legal team at Gay and Lesbian Advocates and Defenders that would achieve the most significant breakthrough up to that point: the 2003 decision by the Massachusetts Supreme Judicial Court, striking down under the state constitution a ban on same-sex marriages. The decision in Goodridge v. Department of Health, in fact, started the string of victories that still continues against such prohibitions under state law.

Where does the Proposition 8 saga, and the roles of super-lawyers Theodore Olson and David Boies, fit into this historical narrative? Same-sex marriage had come to California in 2008, when the state supreme court split 4 to 3 in finding an equal right to marriage under the state constitution.

That would be overturned in the fall of that year, when the voters of California approved the ballot measure known as Proposition 8. After the state supreme court refused to strike down that state constitutional amendment, the revolutionary force for same-sex marriage began gathering around a challenge in federal court – the first in a federal tribunal in two decades, historians have noted.

With Olson and Boies leading the court team, the case of Perry v. Schwarzenegger began in 2009 in a San Francisco federal courtroom; it would lead in 2010 to the nullification of Proposition 8.  The intended target of that lawsuit—the U.S. Supreme Court—did not reach the key constitutional questions because it found supporters of Proposition 8 had no standing to appeal, but it thrust the entire constitutional controversy into a public prominence, at least with the media, that it did not previously have.   The media, in short, had somewhat belatedly begun to focus intently upon a revolution in progress.   Some 31 years after Evan Wolfson’s Harvard paper, the idea seemed clearly to be catching on.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 56 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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