Decades of battles converged
for momentous decision
From Hawaii to White House, 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.
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.
Genora Dancel, left, and Ninia Baehr were among plaintiffs in a case in Hawaii 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. (Dennis Cook/Associated Press)
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 their 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 forbade 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 on my 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 return 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.
Some of the plaintiffs in a suit against Massachusetts celebrated their one-year anniversary in May 2005, a year after the state became the first in the nation where gays could legally marry. (Elise Amendola/Associated Press)
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.
Video: The evolution of same-sex relationships on American television
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.
The court majority in New York handed opponents one of their most potent arguments. The state was justified in restricting marriage because “unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes.” Gay couples, by contrast, “do not become parents as the result of accident or impulse,” so marriage is not needed.
The political process was unavailing. The legal strategy was faltering. It would be another four years before any other state joined Massachusetts in allowing gay couples to wed.
In March 2013, David Boies, center left at microphone, and Ted Olson, right, spoke to the media after oral arguments before the Supreme Court in their quest to overturn California’s ban on same-sex marriage.
California: An explosive strategy
The mantra of the legal community seeking a right to gay marriage in 2009 was still the same: slow and steady progress; don’t risk making bad law for the whole country.
But Ted Olson’s legal strategy more resembled a jailbreak.
Hired against type by Hollywood celebrities to overturn California’s ban on same-sex marriage, known as Proposition 8, the conservative, Republican Olson was ready to go for broke. His lawsuit, filed in San Francisco, said that all state prohibitions violated the U.S. Constitution.
He intended to quickly bring the issue before the Supreme Court, a familiar venue where he had argued dozens of cases and represented Bush in Bush v. Gore.
Gay marriage advocates recognized the public relations gold of having a conservative icon in their corner. Only Olson had the clout to write a Newsweek cover article — The Conservative Case for Gay Marriage — and his recruitment of Democratic lawyer David Boies, who represented Al Gore, ratcheted up public attention.
But the advocates hated Olson’s strategy. They feared that years of work would be lost if he had miscalculated the Supreme Court’s readiness to rule in favor of gay marriage.
They caught a break when U.S. District Judge Vaughn R. Walker slowed things down. He, too, knew that the case was likely headed to the Supreme Court and insisted on making the record complete with a trial, with witnesses, cross-examination and “a full airing of the issues,” he said in a recent interview.
“At bottom, the constitutional issues associated with same-sex marriage are not all that complicated,” Walker said. It seemed clear that equal protection and due process rights were compromised by denying marriage licenses to gay couples, “so I thought it would be useful to see just what the state’s justification was.”
Walker said he recognized the importance of the issue and the attention it was receiving. “You’re a little more conscious that everything you do is going to be scrutinized,” he recalled.
There was another reason Walker’s ruling would be scrutinized: He was gay and in a long-term relationship. Although his sexuality was not a secret — FBI agents had asked acquaintances about that more than 20 years earlier, before President Ronald Reagan first nominated him for the bench — it was not in the open, either.
“Had I recused myself or said, ‘Folks, you ought to know I’m gay,’ that sends the message that a gay judge can’t decide these issues in a dispassionate way, and I thought that was not the message that was appropriate to send,” Walker said.
Kenji Yoshino, a constitutional law professor at New York University who wrote a book about the trial, said he thinks it is hard to overstate its importance.
“It was just different in kind from any conversation that I’d seen in the public sphere about same-sex marriage — media debates or legislative hearings or popular debates or even academic discourse,” he said.
Witnesses had to be experts in their fields, sworn in to tell the truth, challenged by cross-examination.
On Aug. 4, 2010, Walker handed down a 136-page ruling in Perry v. Schwarzenegger, finding that Prop 8 violated both the Equal Protection and Due Process clauses of the 14th Amendment. His opinion listed 80 findings of fact about marriage and child-rearing drawn from the trial testimony.
“It made a record for everybody else,” Olson said. “Other judges throughout the country constantly cited that, and it influenced public opinion.”
Although he had opposed Walker’s plan for a full trial, Olson acknowledged recently that it turned out to be an unexpected boon for the gay marriage movement, offering a public forum where it could challenge opponents’ traditional arguments.
“People who said kids don’t do well in gay households — we were able to say, ‘Where’s your evidence?’ ” Olson recalled. “People said it would damage traditional marriage. We said, ‘Where’s your evidence?’ ”
Walker retired in 2011 after more than 20 years on the bench. He is in private practice again, in a corner office with stunning views of San Francisco Bay.
He is often thanked by people he meets for his opinion, and he says, like all judges, that it makes him a little uncomfortable. On the other hand: “I pissed off a lot of people with my decisions. I might as well make a few friends.”
Washington: A cautious president
Barack Obama was supported big time by the gay community when he ran for president in 2008, and once he was elected, he returned the love.
He promoted gay aides, named gay foreign ambassadors, nominated gay judges. Gay rights advocates had direct access to Valerie Jarrett, his longtime friend and trusted White House confidante.
But on same-sex marriage, there was frustration.
Despite a campaign pledge to undo the Defense of Marriage Act, a Clinton-era law that withheld federal recognition of same-sex marriages, Obama’s Justice Department had defended the law against challenge.
And the cautious president refused to say that he believed gay couples should be able to marry, offering instead that he supported civil unions and leaving it up to the states to decide whether to do more.
Same-sex advocates noted that Olson — who, the joke went, held annual barbecues at his house for the vast right-wing conspiracy — was more progressive on gay marriage than Obama. And Olson himself was becoming frustrated.
“I said several times to people who I knew were talking to the White House: ‘I’m this close to writing an op-ed that says the number one authority they are citing against us is the president of the United States. How long are you going to let this happen?’ ” Olson said recently.
Activists such as Wolfson, who thought the first target should be DOMA, were working from the inside. Jarrett was a “truly engaged and active conduit,” Wolfson said, and his message to her was “Help us help you help us.”
The department changed the tone of its DOMA defense — and went further. It began to look for a way to abandon the law. To Tony West, assistant attorney general for the civil division at the time, the law failed on equal protection grounds. He said recently: “You had similarly situated folks — married heterosexual and married same-sex couples — and they were being treated differently by their government unfairly. Very simple.”
But it is extremely rare for the department to abandon the defense of a law.
Such things take time, and the government faced a deadline to respond to a DOMA challenge filed by Edie Windsor of New York. Windsor’s spouse, Thea Spyer, had died, and had the federal government recognized their marriage, Windsor would have owed nothing on the estate they had accumulated during 44 years together. Because DOMA withheld recognition of same-sex marriages, Windsor’s tax bill was $366,000.
A government lawyer called Windsor’s lawyer, Roberta Kaplan, to request an extension.
No, Kaplan said.
The next call came from West, and again the answer was no.
West revised his pitch. As Kaplan remembers it, West said: “Robbie, I’m telling you that the president, the attorney general and I are considering what to do in this case. Do you hear me?”
She reluctantly agreed to the extension, adding, “I just want you to know, as you and the attorney general and the president deliberate about this, I’ll be praying for you.” Kaplan recounted.
She was rewarded when Attorney General Eric H. Holder Jr. announced that Obama had concluded that the law was unconstitutional and the Justice Department was no longer defending it.
The other shoe dropped in May 2012. Vice President Biden had gotten ahead of Obama, saying he supported same-sex marriage. Several 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.
In December 2013, plaintiffs in a suit in Utah celebrated a judge’s ruling that a same-sex marriage ban was illegal. From left are Moudi Sbeity; his partner, Derek Kitchen; Kody Partridge and her wife, Laurie Wood. (Rick Bowmer/Associated Press)
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.”
For older gay Americans, the decision was poignant. Now in the twilight of their lives, they had experienced the worst days, when being gay was a dirty secret, and in some places tantamount to being criminal.