Decades of battles converged for momentous decision
From Hawaii to Utah to D.C., gays’ right to marry seemed far from inevitable
It feels like the blink of an eye. At the turn of this young century, states were still free to prosecute gay couples for being intimate; as of Friday, states are required to offer them marriage licenses.
But the story of how gay marriage happened— the legal battle to secure a constitutional right to something that once did not exist — stretches back decades. Five episodes along the way exemplify an uneven history largely marked by legal victories and often shadowed by political setbacks.
Society and culture changed, a younger generation leading the way. But the battle was won in the courts. Five members of the Supreme Court said Friday that the fundamental right to marry must be open to gays. Four said democracy had been shortchanged.
The ruling was the culmination of years of efforts by brash activists, national legal organizations, rogue lawsuits and people like two young women from Hawaii who happened to fall in love.
Hawaii: Early steps
After a nine-hour first date and a fairly short courtship, Genora Dancel produced a ring and asked Ninia Baehr to marry her. Baehr said yes, although neither of the women could envision precisely what that might mean.
It was 1990, and there was not a place on Earth where two people of the same sex could legally marry.
Baehr’s forward-thinking mother had found a girlfriend for her daughter at the Honolulu television station where she worked. “I have a wonderful friend named Genora,” her mother had said, “and I’ve heard she’s a lesbian.”
Dancel and Baehr did not set out to make Hawaii a place where a gay couple could wed. But a local activist named Bill Woods, an abrasive fellow who alternated between irritating the straight establishment and irritating the gay establishment, was putting together a lawsuit and looking for plaintiffs.
They were what Baehr called a “rag-tag” group of three couples with varying degrees of dedication to the cause. No national gay rights group would take the case: Marriage was unattainable, they thought.
A local lawyer named Daniel Foley stepped in. The former head of the state American Civil Liberties Union, Foley said he had never thought much about whether it was an injustice that gay couples could not marry. “But civil rights cases are what I do,” he said.
And there were reasons to think Hawaii would be more receptive to a suit than elsewhere: The state’s constitution forbid sex discrimination and specified a right to privacy. Foley and a student volunteer scoured the state’s laws and found hundreds of rights and benefits that accompanied marriage in Hawaii and thus were withheld from his clients.
He even noted a favorable history: Traditional Hawaiian culture recognized homosexual relationships, and for a time, King Kamehameha III had made his lover, called an aikane, his co-ruler.
Foley and his plaintiffs made it to the Supreme Court of Hawaii in 1993, and even he was astounded by what happened when the state’s lawyer took a turn at the lectern.
One of the justices asked: If a man and a woman ask for a marriage license, you give it to them, correct? The lawyer said yes. But if a man and a man ask, or a woman and a woman ask, you refuse? Yes, the lawyer answered. Well, that’s discrimination, the justice said. “The hair kind of stood up onmy arm, and I thought, ‘Oh, my God, they’re taking this seriously,’ ” recalled Foley, who is now a judge. “I thought, ‘We have something here.’ ”
The justices ruled that Hawaii’s denial of marriage to gay couples violated the state’s ban on sex discrimination and sent the case back to a lower court to determine whether the state had a legitimate reason for its restrictions.
“Hawaii really launched this ongoing global movement,” said Evan Wolfson, who has been a pioneer in the legal strategy to secure gay couples’ right to marry. “Hawaii was the first time the country took it seriously, the first time a court took it seriously.”
The negative reaction was immediate. Within five years, 30 states had passed laws banning same-sex marriage or recognition of marriages performed elsewhere. Congress passed the Defense of Marriage Act, which for the first time declared that the federal government would recognize marriages only between a man and a woman.
Voters in Hawaii itself overturned the favorable court rulings.
“I have to say I was surprised at the backlash,” Foley said.
But Foley found a silver lining: Congress had at least not proposed amending the Constitution to forbid same-sex marriage. DOMA could be overturned by courts, he reasoned, but a constitutional amendment would make a legal challenge impossible.
Hawaii’s legislature would eventually re- turn to the issue and approve same-sex marriage in 2013. The state now beckons the marriage-seeking gay tourists it once feared it would attract.
Dancel and Baehr had long broken up by then, as many couples do. They’ve since married others. They stay in touch. New England: Seeds of a new revolution
On the other side of the country, a small group of activists brought the legal fight to the mainland in the late 1990s. They faced opposition not only from the vast majority of Americans and a wide cross-section of outraged and vocal politicians, but also from many in the gay rights movement itself.
The movement was still in its early stages. People were being fired from their jobs for coming out. People were dying of AIDS. The Supreme Court in 1986 had affirmed that states were free to categorize homosexual sodomy as a criminal act.
Marriage, an institution criticized by many gay rights leaders as patriarchal and sexist, was not at the top of the movement’s priority list. Why fight for something seen as confining rather than liberating?
In 1983, Wolfson had written his thesis at Harvard Law School on the notion that gay couples should be allowed to marry. It was seen as so far-fetched that he had trouble finding a faculty adviser.
“My argument was that the denial of marriage is at the heart of anti-gay discrimination in a way that it was at the heart of racial discrimination: You must be kept apart,” Wolfson said in a recent interview.
Some activists believed that since Hawaii had shown a path for winning, the right strategy was to file lawsuits all across the country.
“I didn’t feel that way at all,” said lawyer Mary Bonauto, who in 1990 went to work for the group Gay & Lesbian Advocates & Defenders (GLAD). “I felt like if we were going to file litigation, we had to be prepared to win.”
New England seemed to offer the best chances. Some states in that part of the country had anti-discrimination laws in place, and it would be difficult to amend the state constitutions to specifically outlaw same-sex marriage.
Bonauto and others filed suit in Vermont— and in 1999 won. The state’s supreme court directed the legislature to legalize marriage or provide for civil unions. The legislature opted for civil unions, becoming the first state to do so.
A more momentous decision came three years later, in the Massachusetts suit that Bonauto filed. The state’s Supreme Judicial Court ruled 4 to 3 that allowing only heterosexual couples to marry violated the state’s constitution. It later clarified its order to say that only marriage, not civil unions, would remedy the situation.
“Separate is seldom, if ever, equal,” the court said.
On May 17, 2004 — only 11 years ago — Massachusetts became the first place in the country where gay couples could legally marry. (The Netherlands and Belgium had also approved gay marriage.)
“We needed to get people married somewhere, and people needed to see what that looked like, and that was Massachusetts in 2004,” said Bonauto. “The amount of trepidation was intense, and it turned out to be joyous.”
But it seemed the victory would come with an enormous price. Then-Gov. Mitt Romney vowed a well-funded campaign to oust legislators who supported the decision. President George W. Bush called for an amendment to the U.S. Constitution banning same-sex marriage: “Our nation must defend the sanctity of marriage.”
Those specific efforts fizzled, but other states raced to amend their own constitutions to avoid becoming the next Massachusetts. And other state courts proved resistant to the legal arguments that swayed the justices there.
There were significant losses in the highest courts in Washington, Maryland and, notably, New York.
eral days later, Obama followed suit, telling ABC’s Robin Roberts that his “evolution” had brought him to the point where he also believed gay couples should be allowed to marry. (It would not be until October 2014, in an interview with the New Yorker’s Jeffrey Toobin, that Obama would match Olson’s position that the Constitution requires states to allow gay couples to marry.)
After decades of groundwork, advocates for same-sex marriage felt momentum. Obama’s position did not cost him public support — it may have helped — and for the first time, same-sex marriage won by referendum in Maryland, Maine and Washington.
In June 2013, the Supreme Court disposed of the Prop 8 case by saying the challengers did not have legal standing, allowing marriages to resume in California.
And the court at the same time ruled for Windsor, finding DOMA unconstitutional. Justice Anthony M. Kennedy wrote the majority opinion. But it was Justice Antonin Scalia’s dissent that would be more prophetic. The decision, he said regretfully, meant that state bans on gay marriage were destined to meet the same fate as DOMA.
To the advocates, Scalia’s lament sounded like an opportunity.
Utah: From young judge to pioneer
The old ceremonial federal courtroom in Salt Lake City has arched windows and rich wood paneling and plenty of seating. It so exemplifies the solemnity and seriousness of justice that it has been used as a movie set.
But only five months after the Supreme Court had decided Windsor’s case, it felt more like a party. “The entire courtroom was packed. But it was like being at a social. It was like being at a bar,” recalled lawyer Peggy A. Tomsic. “The whole LGBT community was there.”
U.S. District Judge Robert J. Shelby called the court to order, and Tomsic began to explain why “even in Utah,” the Constitution protects the rights of gay couples to marry “no matter how politically unpopular or religiously unpopular that concept is.”
Tomsic talked for several minutes before Shelby, who had been on the federal bench only five months when he was assigned the case, asked his first question.
If I rule for your clients, he asked, “will I be the first federal court in the nation to make that finding?”
Tomsic hemmed and hawed a bit before looking at Shelby.
“In terms of an express holding by any court in this nation, at this level, post- Windsor?” she asked. “Yes, your honor, you would be the first. Congratulations.”
Two weeks later, Shelby — a registered Republican and a decorated Desert Storm veteran chosen and vetted by the state’s two conservative Republican senators, Orrin Hatch and Mike Lee, to become the youngest federal judge in Utah history — became the pioneer. He said that Kennedy’s reasoning in Windsor, and Scalia’s as well, made clear that Utah’s ban on same-sex marriage, approved by 66 percent of the state’s voters, violated the Constitution.
Over the next few months, Shelby was followed by an avalanche of other states’ judges who decided the same thing.
But his opinion is revered by same-sex marriage advocates — not only because it came first, not only because it bucked popular sentiment in the reddest of red states and not only for the personal way Shelby wrote about each pair of plaintiffs.
What was just as important as the ruling was that he did not delay it. The state of Utah had not asked for a stay in case it lost. Marriages could begin immediately.
Tomsic said of her legal adversaries: “I always wondered, after the decision came out, were they so cavalier and so thought they were going to win in Utah that it never occurred to anybody they might lose and should protect themselves?”
The U.S. Court of Appeals for the 10th Circuit agreed with Shelby that a stay was not warranted, and during the 17 days before the Supreme Court stepped in and temporarily put further marriages on hold, more than 1,000 couples married.
Laurie Wood and Kody Partridge, who as Shelby noted in his opinion “share an interest in books and gardening and have the same long-term goals for their committed relationship,” were among the first to marry.
“The optics of those 17 days: hugging and flowers and kids watching their parents get married — all of this celebration,” Wood recalled. She said she thought it must be the first time straight people in Utah looked at gay people and realized that “they were actually seeing families.”
Wood acknowledges that it was not that way throughout the state. And the days were not pleasant for Shelby. “Judicial Tyranny” read the editorial headline in the Deseret News. There were calls for his impeachment, and friends say Shelby lost weight from the stress.
But advocates far from Utah can recite a key passage in his opinion that seemed to presage what the Supreme Court would decide 18 months later, when same-sex marriage moved from nonexistent to novelty to constitutional right.
“It is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian,” Shelby wrote. “The court cannot ignore the fact that the plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex. The court, and the state, must adapt to this changed understanding.”
A crowd celebrates at the Supreme Court on Friday after states’ bans on same-sex marriage were struck down.
Some of the plaintiffs in a suit againstMassachusetts celebrated their one-year anniversary inMay 2005, a year after the state became the first in the nation where gays could legally marry.
Genora Dancel, left, and Ninia Baehr were among plaintiffs in a case inHawaii that challenged the state’s anti-gay marriage policy. The state’s Supreme Court ruled that it violated the state’s ban on sex discrimination and sent the case back to a lower court. Within five years, voters overturned the favorable court rulings.
Daniel Foley, left, was the lawyer who took the women’s case to the Supreme Court ofHawaii. He says he had never thought much about whether it was an injustice that gay couples could not marry but that “civil rights cases are what I do.”
In December 2013, plaintiffs in a suit in Utah celebrated a judge’s ruling that a same-sex marriage ban was illegal. From left areMoudi Sbeity; his partner, Derek Kitchen; Kody Partridge and her wife, LaurieWood.