Decades of bat­tles con­verged for mo­men­tous de­ci­sion

From Hawaii to Utah to D.C., gays’ right to marry seemed far from in­evitable

The Washington Post Sunday - - FRONT PAGE - BY ROBERT BARNES

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.”

JAC­QUE­LYN MARTIN/AS­SO­CI­ATED PRESS

A crowd cel­e­brates at the Supreme Court on Fri­day af­ter states’ bans on same-sex mar­riage were struck down.

ELISE AMEN­DOLA/AS­SO­CI­ATED PRESS

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.

DENNIS COOK/AS­SO­CI­ATED PRESS

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.”

RICK BOWMER/AS­SO­CI­ATED PRESS

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.

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