The 25 years since are notable for both the progress and lack of it on those issues. The Supreme Court first ruled the Defense of Marriage Act unconstitutional, then in 2015 required states to permit same-sex couples to marry, effectively ending debate on the topic. Yet the Employment Non-Discrimination Act never became law, and the successor Equality Act struggles to even get a vote today in Democratic-controlled Washington. Nearly half of the country’s LGBT population lives in places where the right to wed appears inviolate, but the risk of being “married on Saturday and then fired on Monday for just that act,” as federal judge Ilana Rovner has described it, remains.
Over the last quarter-century, the gay rights movement’s major policy gains were delivered by a fortuitous combination of successful litigation, responsive courts, key political victories in a handful of largely left-leaning states and a helpful White House. For those stewing today about their inability to move voting rights or immigration reform through a recalcitrant Senate, what’s notable is the missing piece in that policymaking puzzle: It all happened without Congress.
After the Stonewall riots in 1969, leaders of a newly organized coalition of sexual minorities aimed their efforts at Capitol Hill. They attempted to replicate the crowning achievement of the racial-equality movement: the Civil Rights Act of 1964, which forbade discrimination in areas including employment and public accommodation on the basis of race, color, sex, religion or national origin. But a 1974 bill to ban anti-gay discrimination in many of the same areas, the Equality Act, never made it beyond a House committee or won a single Senate co-sponsor.
Unlike African American legal strategists, who had first challenged Jim Crow through the courts, gay rights activists did not initially turn to the federal judiciary. The one significant attempt to do so backfired spectacularly, when the Supreme Court ruled in 1986 that states could continue criminalizing private, consensual sex acts solely to express moral disapproval of homosexuality. That precedent, which wasn’t reversed until 2003, indicated that any effort to use the courts to win federal civil rights protections for gays, lesbians and bisexuals might fail.
Activists did succeed in electing allies in Washington. By the early 1990s, there were two openly gay members of Congress, as many as two dozen representatives who saw the LGBT community as a significant constituency in their districts, and a Democratic congressional leadership generally receptive to lobbying from interest groups like the Human Rights Campaign and the National Gay and Lesbian Task Force.
When Bill Clinton became the first president elected as a gay rights supporter, the groups dropped the ambitious Equality Act for something that stood a better chance of passage, demonstrating a previously unseen tactical nous in navigating Congress. The Employment Non-Discrimination Act, known as ENDA, was introduced in 1994 and dealt only with the workplace, where public opinion showed the broadest consensus for action. (A Gallup poll at the time found that 80 percent of Americans believed gays and lesbians deserved equal job opportunities.) Supporters worked to frame the proposal as practical and noncontroversial — much as the Americans With Disabilities Act had been four years earlier — rather than as a sweeping new civil rights law. “If ‘gay’ was going to enter the conversation, that’s where you wanted to have it — where we had the strategic advantage,” Daniel Zingale, then the Human Rights Campaign’s political director, told me.
But when Democrats lost Congress that fall, they also lost the ability to control that conversation. A bizarre series of events in Hawaii made that state’s supreme court the first anywhere to find that the fundamental right to marriage could extend to same-sex couples, spurring a Mormon-led backlash that eventually reached Washington. There, it led to the introduction of the Defense of Marriage Act, which ensured that the federal government wouldn’t recognize same-sex couples and that other states could not be compelled to do so, either.
It moved quickly through a Republican-controlled Congress in 1996, with Clinton committing to sign the bill if it reached him. As it passed the House that July in a landslide, Zingale suggested to friendly senators that they make the best of the bad situation by trying to add the employment bill as an amendment to the marriage act. Republicans saw the threat of a “poison pill,” forcing them to back the discrimination law if they wanted to block recognition of same-sex marriage.
So Majority Leader Trent Lott (R-Miss.) offered Sen. Ted Kennedy (Mass.), the Senate’s leading pro-gay Democrat, a compromise: If Democrats dropped their efforts to amend DOMA, Lott would schedule a stand-alone vote that same day on ENDA. That set up the unusual situation on Sept. 10 of senators taking almost simultaneous votes on related issues from opposite angles: one to advance gay rights and one to curtail them.
Suddenly, the politics were different. Moderate Democrats wary of being associated with a gay rights bill were more willing to do so when they could at the same time vote for a higher-profile anti-gay-rights bill. For Republicans, offering gay people job protections seemed like a modest concession compared with recognizing their families. Lobbyists could approach lawmakers on two questions simultaneously and happily accept a yes on only one.
For supporters of the employment discrimination ban, the circumstances of the defeat were especially tragic. Vice President Al Gore stood ready to break a tie, but the pledged 50th vote, Sen. David Pryor (D-Ark.), was stuck by his son’s Little Rock hospital bed. When a tearful aide asked if it would be possible to dispatch a military plane to ferry Pryor back and forth for the vote, Kennedy tried to reassure him. “There will be another day,” he said.
There wasn’t. In the quarter-century since, congressional initiative on gay rights has been scarce. The only two significant achievements have been rewriting hate-crimes categories to protect LGBT people and ending the “Don’t Ask Don’t Tell” rule for military service, both of which came only when attached to must-pass spending bills.
Federal nondiscrimination laws remain exactly where they were in 1996. The last time Democrats had unified control of government, in 2009, internal divisions over whether to expand the workplace-bias ban to cover gender identity paralyzed action. When the party controlled the Senate in 2013, a trans-inclusive version of ENDA passed by an overwhelming bipartisan margin, but House Republicans refused to bring it up for a vote. A new Equality Act was introduced in 2015 to write sexual orientation and gender identity into the Civil Rights Act; it appears stuck in the Senate.
In the meantime, marriage rights graduated from a local Hawaii issue to a national cause, ricocheting through state capitals until federal courts — now more sympathetic to gay rights cases than they were two decades earlier — were finally forced to reckon with it. In June 2013, the Supreme Court struck down DOMA, after President Barack Obama ordered government attorneys to stop defending a law he found unconstitutional. Two years later, again after prodding from the Justice Department, the Supreme Court decreed marriage equality the law of the land. At no point did the legislative branch contribute to the change.
Not every issue lends itself to a state-based strategy in which activists can sit back until federal courts look favorably on their claim. Marriage has always been primarily a matter for states, unlike the long tradition of the federal government enacting and enforcing civil rights laws to protect disadvantaged groups. But there are benefits, when facing a split and largely dysfunctional Congress, in seeking out other routes to change.
That federal lawmakers did not regularly face votes or debates on same-sex marriage probably helped to keep public opinion on the issue from polarizing. Polls show that both marriage equality and nondiscrimination protection are now overwhelmingly popular, with between two-thirds and three-quarters of Americans backing each. (Polling on the nondiscrimination issue fluctuates more widely, depending on a question’s phrasing.) But as Democrats have made a renewed push for the Equality Act, support among Republicans for a nondiscrimination law seems stalled.
Yet as the Senate refuses to take up the bill — Democrats appear again stuck at 49 votes, with Sen. Joe Manchin (W.Va.) the holdout — the country may nevertheless find its way to the same outcome. The Supreme Court ruled last year in Bostock v. Clayton County that gay men, lesbians, bisexuals and transgender people were already covered by the Civil Rights Act’s inclusion of “sex” as a forbidden category for job discrimination. Nine states that had not applied employment-bias laws to sexual minorities have understood Bostock to supersede their inaction and are now accepting job discrimination complaints. Even though the court’s opinion addressed only employment, the Biden administration has applied its logic to discrimination in areas like housing and education, via executive order.
This is not a sturdy long-term solution, as the next president can easily reverse the executive order. But for a long time, the legal edifice of same-sex marriage seemed equally unstable, as strategists built a foundation of laws in the states while the federal government explicitly refused to acknowledge them. That jury-rigged structure led to popular comfort with and support for equal marriage rights, and eventually it was impossible for the executive and judicial branches not to seek a single regime for the whole country.
There can be progress without Congress.