There is an irony to where they ended up, as the narrowness of their campaign was, to begin with, a winning strategy. For years lawyers demanded marriage equality circumscribes 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 national marriage laws. Making claims at the state level, under a state’s constitution, ensured that no decision would be felt beyond its borders. The complaints have been drafted in such a way that the courts can rule in favor of the complainants without having to adhere to the broader principle that the discrimination they face on the basis of sexual orientation should be treated in the same way. as race, sex and religion under the Civil Rights Act.
As the action unfolded in federal courts, those pushing for marriage equality continued to trumpet restraint in their legal approaches. As New England litigator Mary Bonauto filed the first major lawsuit against the Defense of Marriage Act, demanding federal recognition and then denied to same-sex couples, she was careful to note that it wouldn’t affect anyone outside of states that had already legalized same-sex marriage on their own terms.
When President Barack Obama lent his administration’s backing to a challenge to Proposition 8, the ban on same-sex marriage enacted by California voters in 2008, his Justice Department presented what amounted to a bizarre compromise. Solicitor General Donald Verrilli Jr. proposed that the Supreme Court ruling that states like California, which had extended “easy marriage” alternatives for gay men and lesbians, such as domestic partnership or civil union , violated the constitutional prohibition of “separate but equal” – but it was okay not to offer recognition at all. The proposal was to ensure that no state would have to start validating gay or lesbian families under a court order.
The Supreme Court has never had to deal with this issue; in 2013, he dealt with the Proposition 8 appeal only on procedural grounds. But a concurrent court ruling that the defense of marriage law was unconstitutional drastically changed gay rights advocates’ view of what was possible. By the time the big question – whether states could restrict marriage to opposite-sex couples – came to the Supreme Court in the Oberefell case in 2015, the lawyers decided to aim higher. They saw an opportunity to take advantage Oberefell in a case the impact of which would extend far beyond state marriage laws.
Standing before the judges that spring, Bonauto and Verrilli argued that sexual minorities should be treated as a protected class under federal civil rights law. It was the all-marble approach that litigators had so carefully avoided before. Depending on the court’s application of the equal protection clause, such a determination would subject not only marriage bans, but a whole host of federal, state and local laws that discriminate against gays and lesbians (and potentially people transgender people as well) to a higher level of judicial review. Essentially, lawyers were asking judges to plead who was covered by the laws, rather than by what right had been refused to them.
Yet Judge Anthony Kennedy, who previously wrote three landmark opinions that helped establish full citizenship for gays and lesbians, consistently refused to view the cases in those terms. His views have turned to amorphous concepts like “respect” and “dignity” in place of the rigorous logic of civil rights jurisprudence. When Oberefell Arriving at his office, Kennedy drafted a majority opinion which treated it very much as a case concerning the specific right at stake rather than the category of injured party.
“No union is deeper than marriage, for it embodies the highest ideals of love, loyalty, devotion, sacrifice and family,” Kennedy wrote. “By forming a conjugal union, two people become something greater than before. As some of the applicants in these cases demonstrate, marriage embodies a love that can last even after death. It would be misunderstanding these men and women to say that they do not respect the idea of marriage. Their plea is that they respect it, respect it so deeply that they seek to find its fulfillment on their own.
He knew he was writing for history, and this passage immediately graced the merchandise – to this day Etsy remains filled with posters and note cards with Kennedy’s words – and is now often read at ceremonies. marriage for heterosexual and homosexual couples. To some extent, this reflected the wider success that gay marriage activists had had in the political arena. In the years leading up to the Supreme Court case’s first instance, they had revamped their political communications to emphasize “why marriage matters,” as a messaging initiative by advocacy group Freedom to Marry called it.
This change supported political gains in favor of marriage equality (majority support in national polls and decisive victories in legislative and electoral battles) and helped keep judges’ attention to the special status of this institution in the society.
But now the limits of the decision are becoming clearer. While a federal court cited Oberefell in 2016 as a basis for abolishing Mississippi’s ban on adoption by same-sex couples, its impact was barely felt in areas beyond family law. Indeed, in the years that followed, gay rights advocates and litigators battled many of the same issues they faced years, if not decades, earlier.
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 categories. protected against discrimination. Over the past summer Bostock v. Clayton County, the Supreme Court ruled that gays, lesbians, bisexuals and transgender people already cannot be refused work on the basis of the inclusion in the law of “sex” as the basis on which discrimination in matters of employment was prohibited. But this mainstream reasoning, expounded by Kennedy’s successor Neil Gorsuch, again refused to read the Constitution’s coverage of sexual minorities. This significated Bostock did not address legal discrimination against them in other areas – such as housing, education, loans or public housing – and left open the possibility that a Conservative Congress could still amend Civil Rights Act to expressly authorize it. (The Biden administration has attempted to extend some of these anti-discrimination protections by executive order.)
As a result, some gay rights activists and lawyers view 2015 in terms that could have been. Last year, in a volume titled What Obergefell v. Hodges should have said, jurists presented their own alternative opinions – much reshaping the decision as desired within a more conventional and expansive civil rights framework. Weeks after the marriage decision was released, Judge Ruth Bader Ginsburg revealed that she would have taken such a route had she written the majority opinion. Ginsburg explained that she did not come up with a separate deal based on different reasoning “maybe because in this case it was more powerful to have the same single opinion.”
Indeed, what gave Oberefell its cultural strength is perhaps also what has limited its legal impact and posed the challenge that another generation of strategists and activists will face.