It’s ironic where they found themselves, because the narrowness of their campaign was initially a strategy for success. For years, lawyers suing for equality have narrowed down their cases as narrowly as possible so that judges who are already ambivalent about extending rights to same-sex couples see nothing more at stake than state marriage laws. The assertion of claims at the state level within the framework of a state constitution ensured that no decision beyond the state borders was noticeable. Complaints have been drafted so that courts can rule in favor of the plaintiff without having to commit to the overarching principle that discrimination based on sexual orientation is treated in the same way as race, gender and religion under the Civil Rights Act.
When the lawsuits came in in federal courts, those pushing for marriage equality continued to trumpet reluctance to pursue legal approaches. When New England trial attorney Mary Bonauto filed the first major lawsuit against the Defense of Marriage Act, demanding state recognition that was then denied to same-sex couples, she made sure this did not affect anyone outside of states that were already same-sex Marriage legalized had its own terms.
When President Barack Obama threw his administration’s support behind a challenge to Proposition 8, the 2008 California electoral ban on gay marriage, his Justice Department came up with a bizarre compromise. Attorney General Donald Verrilli Jr. suggested that the Supreme Court ruling that states like California, gays and lesbians had expanded “marriage-lite” alternatives such as civil partnership or civil partnership, violated the constitutional prohibition of “separate but equal” violated. – but it was okay not to offer credit at all. The proposal should ensure that no state has to start validating gay or lesbian families by court order.
The Supreme Court never had to deal with this issue; In 2013 she dealt with the Proposition 8 complaint solely for procedural reasons. But a simultaneous decision by the court that the law defending marriage was unconstitutional changed the view of gay rights trial attorneys dramatically. When the big question of whether states could restrict marriage to couples of the opposite sex landed back at the Supreme Court in 2015 in the Obergefell case, lawyers decided to pursue higher goals. They saw an opportunity to involve Obergefell in a case whose implications would go well beyond state marriage laws.
In the spring, Bonauto and Verrilli argued before the judges that sexual minorities should be treated as a protected class under the Federal Citizenship Act. This was the all-the-marble approach that litigation attorneys had so carefully avoided before. After the court applied the equality clause, such a finding would subject not only the marriage bans but a whole host of federal, state and local laws discriminating against gays and lesbians (and possibly transgender people) to a higher level of judicial scrutiny. In essence, the lawyers were asking the judges to ask who was targeted by the law, not what right they were denied.
But Judge Anthony Kennedy, who had previously written three landmark statements that helped establish full citizenship for gays and lesbians, had consistently declined to see the cases under these conditions. His opinions revolved around amorphous concepts like “respect” and “dignity” instead of the rigorous logic of civil rights jurisprudence. When Obergefell reached his desk, Kennedy drafted a majority opinion that was more about concrete law than about the class of the injured.
“No connection is deeper than marriage because it embodies the highest ideals of love, loyalty, devotion, sacrifice, and family,” wrote Kennedy. “Marriage makes two people bigger than they used to be. As some of the petitioners show in these cases, marriage embodies a love that can last even after death. It would misunderstand these men and women to say that they do not respect the idea of marriage. Your request is that they respect it, respect it so much that they try to find its fulfillment for themselves. “
He knew he was writing for history, and that passage immediately adorned merchandise – to this day, Etsy is filled with posters and note cards with Kennedy’s words on it – and is often read today at wedding ceremonies for straight and gay couples. In some ways, this reflected the broader success that activists for gay marriage have had in the political arena. In the years before the matter first came to the Supreme Court, they had revised their political communications to emphasize “why marriage matters,” as a Freedom to Marry advocacy messaging initiative called it.
This shift led to political achievements in favor of marriage equality – majority support in national polls and groundbreaking victories in legislative and voting battles – and helped focus judges on the special status of this institution in society.
But now the limits of the decision are becoming clearer. While a federal court cited Obergefell in 2016 as the basis for lifting the Mississippi adoption ban for gay couples, its ramifications were barely noticeable in areas outside of family law. In fact, in the years that followed, gay rights attorneys and trial lawyers have dealt with many of the same problems they faced years, even decades, before.
Congress has yet to pass the Equality Act, which would amend the Civil Rights Act of 1964 and other federal laws to include sexual orientation and gender identity as non-discriminatory categories. Last summer, the Boston Supreme Court v. Clayton County ruled that gay, lesbian, bisexual and transgender people cannot be denied work if the law includes “sex” as the basis for prohibiting discrimination in the workplace. But this line of reasoning in majority opinion, put forward by Kennedy’s successor, Neil Gorsuch, again refused to include coverage of sexual minorities in the constitution. That meant that Bostock did not address legal discrimination in other areas – such as housing, education, lending, or public housing – and left open the possibility that a conservative congress could still amend civil rights law to explicitly allow it. (The Biden government has attempted to extend some of these anti-discrimination protections through executive order.)
As a result, some gay rights activists and lawyers look back on 2015 to what might have been once. Last year, in a volume entitled What Obergefell v. Hodges Should Have Said their own alternative opinions – many, as desired, framed the decision in a more conventional and broader framework for civil rights. Weeks after the marriage decision was published, Judge Ruth Bader Ginsburg announced that she would have taken such a path if she had written the majority opinion. Ginsburg stated that she did not voluntarily give separate consent on the basis of different arguments, “perhaps because in this case it was more powerful to have the same, single opinion”.
Indeed, what gave Obergefell its cultural power could also be what limited its legal impact – and presented the challenge that another generation of strategists and activists must address.