MARRIAGE EQUALITY'S LESSONS FOR SOCIAL MOVEMENTS AND CONSTITUTIONAL CHANGE.

• Author: Eskridge, William N., Jr.

TABLE OF CONTENTS I. THE SWIFT VICTORY OF MARRIAGE EQUALITY 1451 II. SOCIETAL AND DEMOGRAPHIC EXPLANATIONS FOR 1456 MARRIAGE EQUALITY III. LESSONS OF MARRIAGE EQUALITY FOR SOCIAL MOVEMENTS 1465 AND LAW REFORM A. Lesson One: Intensity and Dispersion of Group 1467 B. Lesson Two: Freedom, Interest Convergence, and 1470 Unexpected Messengers C. Lesson Three: The Hydraulics of Prejudice and 1474 Stereotypes I. THE SWIFT VICTORY OF MARRIAGE EQUALITY

In 1967, the Supreme Court ruled in Loving v. Virginia that states could not constitutionally deny different-race couples the right to marry. (1) The same year, Thea Spyer proposed marriage to Edie Windsor, but neither expected their lifetime commitment to be recognized by the state the way Virginia had to recognize the marriage of Mildred Jeter and Richard Loving. (2) Also in 1967, Jack Baker proposed to Mike McConnell, who insisted that he wanted a real marriage, recognized by the state. (3) So Jack enrolled in law school two years later, learned about marriage laws, and filed a lawsuit demanding constitutional recognition of their right to marry. (4) Every judge to hear their case, and others like it in the 1970s, felt that Loving had no connection to relationships between "homosexuals." (5)

In 1993, the Hawaii Supreme Court found the analogy to Loving persuasive. In Baehr v. Lewin, the court ruled that denying a woman (Ninia Baehr) the right to marry another woman (Genora Dancel) was discrimination because of sex, for the same reason that denying a Black woman (Jeter) the right to marry a white man (Loving) was discrimination because of race. (6) On remand, the state trial court found that Hawaii could offer no reasonable justification for the discrimination, (7) but the voters amended the state constitution before the state supreme court could confirm that holding. (8) It was not until November 2003 that any American jurisdiction officially extended civil marriage to same-sex couples, thanks to the Massachusetts Supreme Judicial Court's decision in Goodridge v. Department of Public Health. (9) Because the mandate did not take effect for six months, the Commonwealth issued the first licenses on May 17, 2004. (10) As Figure 1 below reveals, three other states recognized same-sex unions but not same-sex marriages. (11)

By the time President Barack Obama was inaugurated in January 2009, only Connecticut had joined Massachusetts as a marriage equality jurisdiction, (12) though nine states and the District of Columbia recognized civil unions, domestic partnerships, or reciprocal beneficiaries for same-sex couples. (13) Between January 2009 and January 2015, the marriage equality map exploded, from two states to thirty-five states and the District of Columbia. (14)

Figure 2 above reveals the path taken by each of those thirty-five states toward recognition of the freedom to marry for LGBTQ+ Americans. Notice that only five states secured marriage equality through state supreme court decisions interpreting state constitutions. (15) More than double that number--eleven states and the District of Columbia--recognized marriage equality by statutes or a voter initiative adopted between March 2009 (Vermont) and November 2013 (Illinois). (16) Between June 2013 and January 2015, a whopping nineteen states flipped after federal court orders: California when the Supreme Court in Hollingsworth v. Perry dismissed the appeal of a federal injunction, (17) and the other eighteen states after the Court (on the same day) sustained Edie Windsor's challenge to federal marriage exclusions. (18) By the time the Supreme Court granted review for the six lawsuits consolidated as Obergefell v. Hodges in January 2015, the marriage equality map included thirty-five states and the District of Columbia. (19) There were only fifteen states resisting--about the same number and mostly the same states whose different-race marriage exclusions fell in Loving v. Virginia. (20)

Several book-length treatments trace the path from Baehr to Obergefell, including my recent book Marriage Equality: From Outlaws to In-Laws, with Christopher Riano, which starts the story in 1967. (21) From Loving to Obergefell is forty-eight years, almost two generations--so marriage equality certainly did not happen overnight. But the issue did not have much salience until the 1990s, and serious debate did not start until 2003, when the Supreme Court decriminalized consensual sodomy in Lawrence v. Texas (22) and the Massachusetts Supreme Judicial Court delivered Goodridge five months later. Indeed, the twelve-year path from Lawrence to Obergefell looks very similar to the thirteen-year path from Brown v. Board of Education (23) to Loving: responding to social movements, the Supreme Court invalidated apartheid-like regimes (physical separation of the races and emotional separation of sexual outlaws) in the earlier decisions and then a decade later insisted on marriage equality that had been taboo for generations. (24)

There are many differences, of course. The most salient is the brutality and violence undergirding apartheid and the different-race marriage bans--the foundation for the police brutality generating the Black Lives Matter movement. (25)Another difference is that when the Supreme Court decided Loving, very few Americans believed that different-race marriages were okay, (26) but as early as 2011 most Americans were okay with same-sex marriages. (27) And that volte-face came very rapidly for gay marriage. Though it was long opposed by 2-1 majorities, more than 60 percent of the American people supported marriage for same-sex couples in June 2015, when the Supreme Court decided Obergefell. (28) That is breathtaking speed. Pollsters say they have seen nothing like it in the history of polling. (29) The next Part will explain the remarkable success of marriage equality.

2. SOCIETAL AND DEMOGRAPHIC EXPLANATIONS FOR MARRIAGE EQUALITY

   Leading litigation and lobbying organizations deserve a lot of credit for securing nationwide marriage equality: Lambda Legal, GLAD, the American Civil Liberties Union (ACLU), the National Center for Lesbian Rights (NCLR), Freedom to Marry, Gill Action, the National LGBTQ Task Force, and the Human Rights Campaign (HRC). Together with state and local groups (such as Love Makes a Family in Connecticut, among dozens of others), these organizations created a well-coordinated campaign that encouraged local public relations and political networking campaigns, promoted impact lawsuits in gay-friendly jurisdictions, publicized the advantages of marriage equality in national and local media, developed in fits and starts effective messaging strategies, and ultimately built an unstoppable momentum. (30) This account is accurate, but there is a simpler story as well.

   Gaining a foothold in Massachusetts assured widespread acceptance for marriage equality, and the campaign to secure marriage in New England was a roadmap for winning marriage everywhere. (31) While the "gayocracy"--the litigation and lobbying organizations noted above, gay media and celebrities, leading academics, and supportive business leaders and multimillionaires--emphasized systematic national efforts, the seeds of success were sown in Vermont by Beth Robinson, Susan Murray, and Mary Bonauto. (32) Their plan was a feminist grassroots campaign for an idea they believed in. Each woman grew up in a culture that disparaged women generally and demonized "homosexuals and lesbians" in particular, each was inspired by feminist role models to step outside existing culture and see themselves as worthy human beings, and each knew that lesbians and gay men were just as capable of family relationships as everyone else. (33) For all of them, the Baehr decision in Hawaii raised the possibility that states might recognize those relationships--but not without a better-organized campaign. (34)

   After a series of meetings in Boston, Massachusetts and Ferrisburg, Vermont, Murray, Robinson, and Bonauto became what they termed "co-counsel for life," with the goal to secure equal marriage rights in Vermont, a relatively gay-friendly jurisdiction. (35) Murray, for example, had already helped persuade the Vermont Supreme Court to recognize second-parent adoptions for lesbian and gay couples and had orchestrated a grassroots political movement that persuaded the legislature to codify that holding. (36) On the marriage issue, their plan was to find out what the small lesbian and gay community wanted and needed, to build up a core of activists and local support for a marriage conversation, to recruit allies in state government and work hard to elect friends and unseat foes, to explore potential support among religious and civic groups, and, only after doing all that, to bring an impact lawsuit populated by deeply committed and unthreatening couples. (37) They almost won. The Vermont Supreme Court surprised them with an opinion that unanimously invalidated the exclusion of same-sex couples from state family law but did not require marriage equality. (38) In 2000, the legislature enacted a law recognizing civil unions, with all the rights, duties, and benefits accorded marriage under state law. (39) The activists were deeply disappointed, but I celebrated their achievement as "equality practice," a giant step toward marriage equality. (40) Three years later, Bonauto and GLAD orchestrated an impressive network of gay activists, religious leaders, lobbyists, grassroots organizers, and civil libertarians to win marriage equality in the Massachusetts marriage case and then protected it against a constitutional referendum between 2003 and 2007. (41)

   Goodridge was the "Cinderella moment" for marriage equality. Statistician Nate Silver averaged the levels of polling support and opposition from 1996 to 2013, as graphically depicted below. (42) His averages are revealing: support for marriage equality bumped up in the wake of the Defense of Marriage Act but then...