This week the U.S. Supreme Court is hearing oral arguments on Obergefell v. Hodges, a set of four separate cases from Kentucky, Michigan, Ohio, and Tennessee challenging the constitutionality of state bans on gay marriage, with a final decision expected sometime in June. If conventional wisdom is to be believed, it is a foregone conclusion that the court will declare gay marriage a constitutionally protected right. Gay marriage is already legal in a majority of states, following the Court’s United States v. Windsor decision in 2013, which struck down the Defense of Marriage Act (DOMA). Former President Bill Clinton had enacted DOMA into law in 1996 to prevent the federal government from recognizing gay marriage—an act that Clinton has since decried as being “incompatible” with the Constitution. Since the Windsor decision, the United States has experienced a virtual tsunami of rulings from lower federal and state courts, arguing that gay marriage bans are in violation of the 14th Amendment’s equal protection clause and are therefore unconstitutional. Two federal judges and the Cincinnati-based Sixth Circuit Court of Appeals, however, have affirmed the constitutionality of state bans on gay marriage, creating a split within the courts that the Supreme Court will try to resolve.
The following selection of articles and books sheds light on the puzzle of how gay marriage—an idea that not long ago seemed farfetched—is on the brink of gaining legitimacy under the U.S. Constitution. Only ten years ago, gay marriage was illegal in all 50 states; public support for gay marriage stood at a measly 30 percent (today, that percentage has doubled); and gay marriage was controversial enough to serve as a wedge issue for the Republican Party during the presidential campaign of 2004. That year, several states put a gay marriage referendum on the ballot in the hope of energizing “value voters.” The works under review also help explain the paradox of why the United States, which birthed the contemporary gay rights movement with the 1969 Stonewall riots, fell behind other democracies in extending marriage rights to same-sex couples. If the Supreme Court federalizes gay marriage, the United States will be catching up rather than leading the way on gay marriage, having been bested by 17 other nations—not just those famous for their social liberalism, such as the Netherlands and Sweden, but also by bastions of machismo culture, such as Spain and Argentina.
Andrew Sullivan,“Here Comes the Groom,” The New Republic, August 28, 1989
This landmark essay by the British-born former editor of The New Republic is credited with beginning debates about gay marriage in earnest, at least in the United States. Sullivan’s bold call for gay marriage ran contrary to the gay community’s historical ambivalence toward marriage—due in large part to its association with heterosexual society—and the caution of gay activists who, for decades, argued that demanding marriage rights before the notion had mainstream support could lead the Supreme Court to shut the door on the issue for decades. In the essay, Sullivan contends that gay marriage is a conservative idea rather than the radical notion that its foes make it to be. He argues:
It’s one of the ironies of our society’s blind spot toward gays that essentially conservative social goals should have the appearance of being radical. But gay marriage is not a radical step… It is humane; it is conservative in every sense of the word.
Aiming to predict the future, Sullivan added that the legal right to marry “would humanize and traditionalize gays” by providing an anchor to gay relationships, providing a mechanism for emotional stability and economic security that would provide a win-win situation for society at large.
“Let Them Wed,” The Economist, January 6, 1996
When The Economist, a publication that prides itself as a shaper of elite opinion, chimed in on gay marriage in 1996, the issue had yet to enter mainstream society. Several years would pass before the Netherlands enacted the first gay marriage law in the world in 2001. In an essay that advocated for societal acceptance of homosexuality, including the extension of marriage rights to same-sex couples, The Economist demolished virtually every argument against gay marriage, concluding that “there is no compelling reason to exclude homosexual couples from marriage and several compelling reasons to include them.”
The magazine argued that although the main reason for the government’s involvement in the marriage business was to protect children, “society’s stake in stable, long-term partnerships hardly ends there.” The editorial continued, stating, “Homosexuals need emotional and economic stability no less than heterosexuals—and society surely benefits when they have it.” Aiming directly at influencing policymakers, the magazine added that now that homosexuals refuse to be celibate and to remain in the closet, the real choice for society is “between homosexual marriage and homosexual alienation. No social interest is served by choosing the latter.”
Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Harvard University Press, 2002)
In this seminal work, the nation’s foremost scholar of marriage, and an expert witness on several high-profile legal cases on same-sex marriage, deconstructs the history of marriage to lend support to the legitimacy of same-sex unions. Cott demonstrates how malleable marriage has been as an institution within the United States, putting forth a thesis that contradicts conceptions of “traditional” and “natural” marriage, both of which hint at marriage as an unchanging institution. Cott argues that although many Americans view matrimony as a religious affair, historical records show that it is best understood as a social, legal, and civil institution. The book notes that the ability to procreate has never been a requirement for making a marriage legal, nor has infertility been grounds for divorce. Moreover, many things once thought as incompatible with marriage have proved otherwise, such as the creation of no-fault divorce, the end of coverture (wherein a bride’s rights are subsumed by her husband upon marriage), and the elimination of miscegenation laws. Many of these changes, Cott argues, have strengthened, rather than weakened, the institution of marriage, and that expanding marriage to include same-sex couples would do the same.
M. V. Lee Badgett, When Gay People Get Married: What Happens When Society Legalizes Same-Sex Marriage(New York University Press, 2009)
Badgett, a labor economist and a lesbian, probes the question of how gay marriage affects society, a subject of intense debate ever since the issue erupted in the national consciousness. Her book reflects upon a year’s worth of research in the Netherlands shortly after the country became the first to legalize same-sex marriages. At the center of Badgett’s analysis are profiles of married same-sex Dutch couples, which, in addition to making for very engaging reading, also provides rigorous social science findings about how gay marriage impacts society and the institution of marriage itself.
Among the myths Badgett debunks is American conservative commentator Stanley Kurtz’s assessment that gay marriage in Northern Europe has led to the collapse of marriage rates within the heterosexual population, increasing the number of children born out of wedlock. Badgett shows in exhaustive detail that these anti-marriage trends were underway well before the introduction of gay marriage, having nothing to do with marriage equality. Badgett also criticizes so-called “marriage dissidents”—members of the gay community who dismiss marriage as an outdated, heterosexist institution. She argues that society has the ability to make marriage significant through whatever interpretation or meaning it decides to bestow upon it. Interestingly, Badgett also interviews couples that have accommodated sex outside of marriage within very stable unions. This trend, she notes, was pioneered by not by gays but by heterosexuals, rendering bogus the popular claim that gays are reinventing or denigrating marriage.
Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford University Press, 2012)
Klarman’s book tells the legal and social history of efforts made by gay people to marry. Contrary to the common view of gays as sexual libertines—a stereotype once promoted by the gay liberation revolution as well as by foes of the gay community—Klarman argues that ordinary gays and lesbians have been demanding marriage since at least the 1970s, only to face overt hostility from the courts and disapproval from other gay activists. From the Closet to the Altar recalls specific vignettes from the fight for marriage rights, including a Kentucky trial judge instructing a lesbian plaintiff that she would not be permitted into the courtroom unless she changed her pantsuit for a dress during the court hearing on her right to marry her partner. Like other cases of the era, the court ruled that there was no constitutional basis for gay marriage.
Another key component of Klarman’s compelling analysis is how the HIV/AIDS epidemic advanced the cause for gay marriage by exposing the legally precarious nature of gay romantic relationships. This, in turn, made gays more demanding of state recognition for their relationships. Klarman also outlines the backslash against gay marriage in the United States, all but ensuring that gay marriage would become a steeper hill to climb in the United States than in Western Europe and Latin America. Since 2004, when U.S. President George W. Bush campaigned on a platform promise to back a constitutional amendment banning same-sex marriage, roughly 30 state constitutional amendments have been passed in the United States—some going as far as to ban same-sex civil unions and even domestic partnerships, giving rise to a formidable legal regime of anti-gay discrimination in American law.
Jo Becker, Forcing the Spring: Inside the Fight for Marriage Equality (Penguin, 2014)
This much-maligned book is nonetheless essential reading for understanding U.S. gay marriage politics. Becker’s biggest sin in Forcing the Spring is mistaking the real heroes in the fight for marriage equality. Rather than crediting the long and hard work of gay activists, Becker credits the endeavors of “super lawyers” David Boies and Theodore B. Olsen, both famous for having argued opposing sides of the Bush v. Gore case. Working together on the Hollingsworth v. Perry case that sought to settle the constitutionality of California’s Proposition 8, the 2008 referendum that overturned California’s legalization of same-sex marriage, Boies and Olsen successfully took their case against the proposition all the way to the Supreme Court. The court ultimately decided in Boies and Olsen’s favor, striking down Proposition 8 and DOMA. Hollingsworth, however, was decided on a technicality, leaving a conclusive statement on the 14th Amendment’s application to gay and lesbian rights still to come.
One of the book’s highlights is Becker’s inside reportage of the case: she embedded herself within Boies and Olsen’s legal team for nearly five years. The book provides in-depth coverage of the rise and fall of Proposition 8, a statute that will be marked in American history as one of the darkest chapters in the nation’s treatment of the gay community. Not content with merely opposing same-sex marriage, proponents of Proposition 8 depicted gays and lesbians as perverts, pedophiles, and menaces to society. In an infamous rally held on the steps of the Sacramento State Capitol, Brad Dacus, a spokesman for Proposition 8, compared fighting gay marriage to fighting Hitler’s Third Reich. Most important, the book provides a rarely analyzed view of the important strides made by straight allies within the fight for gay rights.
Marc Solomon, Winning Marriage: The Inside Story of How Same-Sex Couples Took on the Politicians and the Pundits—and Won (ForeEdge, 2014)