DECEMBER 10, 2012
The Supreme Court has announced it will look at two gay marriage cases. Chris Matthews feels a thrill running up his leg.
Shivers are probably the right response. But not necessarily the Matthews kind. The Court’s consideration of the sweeping challenge to California’s Proposition 8 raises the odds that the Supreme Court strategy may backfire—a risk that the modest challenge to the Defense of Marriage Act was likely to avoid. Starting in 2003, when the Massachusetts Supreme Court found a right to same sex marriage in the state constitution, the marriage issue has been making its way inexorably toward the infallible-because-they’re-final tribunal. And now the moment may have come. Amidst all the speculation and self-congratulation, little attention has been paid to the precedents: the racial movement’s triumphal moment in Brown in 1954 and the pivotal women’s rights case, Roe v. Wade. The movements cannot be seen in isolation. As Kirsten Gillibrand said about the repeal of Don’t Ask Don’t Tell, “gay rights is the civil rights march of my generation.” The gay marriage movement has, to its credit, tried to study movement history, in order to be blessed to repeat its successes.
Starting in 1974 with the campaign against the criminal sodomy laws, the gay legal movement methodically assembled an incremental strategy, patterned on the racial and gender models, for dismantling the structure of law that marginalized and demonized their sexual relations. In 1991, when Hawaii unexpectedly considered legalizing gay marriage, the same institutions and the same players simply morphed into the marriage movement.
The lessons the gay litigators learned from the racial and gender civil rights movements led them to consider the federal courts in general and the Supreme Court in particular with extreme caution. When superlawyers David Boies and Ted Olson brought the head-on challenge to California’s antigay Prop 8 in 2009, they broke with this convention, and were heavily criticized for it. The ACLU’s Matt Coles called the suit a long shot and the marriage director for Lambda Legal said it was “risky and premature.”
After early court “victories” in states like Alaska and Hawaii in the 1990s triggered rabid, Prop 8-type legislation outlawing same sex marriage, movement lawyers pulled back, aiming to challenge marriage discrimination in a state that had already extended gay people basic rights. Did the target jurisdiction have an employment nondiscrimination act, they asked. Did the good people of the state protect their gay and lesbian citizens with laws against hate crimes? Was there even a provision for some partnership rights, even civil unions? Massachusetts, the site of the first lasting victory for gay marriage, had all of those promising characteristics.
The gay litigators had made the right decision. Basking in the warmth of Brown worship, fifty years after its controversial appearance, people forget how slow and hard the run up was to that singular moment. Thurgood Marshall and the myriad other brilliant legal warriors of the racial civil rights movement laid the path to Brown twenty years before Brown. First they started bringing actions, sometimes in state courts, to get the locals to equalize things like teachers’ pay and school resources. They opened the desegregation front not with public high schools, and associated National Guardsmen and spitting, screaming white parents. They started by challenging all white local law schools and other graduate programs. Unlike the separate but unequal public lower schools, the states usually maintained no black graduate programs at all. In some cases, they sent the citizens of their state out of state to attend grad school rather than let them into the local academy. The University of Oklahoma put a black PhD student just outside the classroom door in his very own separate chair. Even the pre-Brown Supreme Court could not gag that down. The solons of the racial civil rights movement knew that the white majority would be much less threatened by the prospect of an adult education PhD than numerous children of a different race at the grammar school. Only when, over decades of litigation, they had isolated the separate but equal doctrine to an island of incoherence did they take it on directly in Brown.
Similarly the women’s movement, having experienced a stinging defeat in 1961, moved with exquisite circumspection when devising their assault on women’s inequality. In 1971, Justice Ruth Bader Ginsburg, then a humble Professor of Civil Procedure at Rutgers, heard about a case the New York ACLU was handling at the Supreme Court and asked if she could lend a hand. The first gender case to reach the Court in a decade, Reed v. Reed was ideally innocuous. All that Ginsburg and the ACLU asked the Court to decide was that the state of Idaho could not automatically prefer a father over a mother to be the administrator of a deceased child’s estate. How likely was it that allowing women to compete to administer their dead children’s estates would upend every sexual norm in the society? Later cases were similarly banal. Shouldn’t a female soldier’s dependent husband get a spousal allowance? The cautious litigators at Ginsburg’s ACLU Women’s Rights Project were not ramping up to Roe, which came from left field. Their next big target was the exclusion of pregnancy from disability plans.
In keeping with their cautious and historically grounded approach, the avatars of the gay legal movement like Gay and Lesbian Advocates and Defenders’ Mary Bonauto approached the antigay federal Defense of Marriage Act with abundant caution. In a series of cases, GLAD, and other allies like the ACLU and Lambda Legal, challenged the provision of the federal law that withholds federal privileges from legally married same sex couples. Rather than confronting the entire structure of state laws head on, they simply asked the federal courts to order the federal government to honor the marriages they had achieved in the handful of states where it was legal.
If one of the DOMA cases reached the Supreme Court, they reasoned it would be like the integrated grad school decision or Reed v. Reed. If not a Trojan horse, a camel’s nose. But nothing is as hard to resist as a social movement whose victorious time has come. By the time the careful DOMA campaign reached the Supreme Court, so did Boies and Olson’s unruly Prop 8 challenge.
On Friday, at least four members of the Court voted to take both marriage cases up. Maybe the California case will be the gay Brown. Certainly, the momentum of social change has shifted since the controversial filing in 2009 and the establishment critics have greatly softened their stand. For the first time in American history in November, not one, but all the states to consider gay nuptial issues at the ballot box broke in favor of gay rights. One could argue that the gay run-up cases have already been won. In 1996 Justice Anthony Kennedy, still rumored to be the swing vote this time, wrote a groundbreaking opinion in favor of the political rights of gays. In 2003, the Supreme Court threw out the remaining state laws making sodomy criminal.
But the Court is so conservative and so evenly divided. Justice Kennedy has delivered an almost unbroken series of conservative votes in the last several years, swinging almost not at all between the factions. It pays to remember that even after a series of cautious moves led to victory, when the women’s movement asked for inclusion of pregnancy in disability benefits – they lost decisively. The closest case to the Boies-Olson litigation in the women’s movement – Roe v. Wade -- triggered a four decade backlash. Once before the gay movement overplayed its hand ever so slightly with the Court and got a terrible decision upholding the criminal sodomy laws. Gays almost won the first sodomy case; the decision in Bowers v. Hardwick was only 5-4, so it was hardly a foolhardy risk. And yet, it does make you shiver.
Of course, certiorari is not destiny. The Court could still weasel out of the Prop 8 decision by ruling that the case had technical problems with who can defend a law when the governor and attorney general have bailed. And then it could affirm the conservative premise of the DOMA case that Congress can’t withhold federal benefits from marriages some states have blessed. A direct constitutional challenge is coming anyway, but in constitutional litigation, as in marriage proposals, sometimes timing is everything.
Linda Hirshman is the author of “Victory: The Triumphant Gay Revolution,” a New York Times Notable Book of 2012. She is at work on a book about Justices O’Connor, Ginsburg, and the achievement of legal equality for women.