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The arguments before the Supreme Court on March 26 and 27 in the cases regarding California’s ban on same-sex marriage and DOMA were the culmination of years of litigation. They were also a defining moment in a movement that few predicted would see same-sex marriage enter center stage.
Indeed, during many of the years following the 1969 Stonewall Riots the movement’s attention was focused elsewhere – on hate-crimes legislation, federal workplace protections (which remain stalled in Congress) and the military’s ”Don’t Ask, Don’t Tell” ban on out servicemembers. It was only a handful who looked to marriage as the issue that might provide the movement’s defining moment.
Among them was Evan Wolfson, the president and founder of Freedom to Marry. It was 30 years ago when a 26-year-old Wolfson wrote his Harvard Law thesis on same-sex marriage. Submitted in April 1983, the 140-page ”Samesex Marriage and Morality: The Human Rights Vision of the Constitution” has become the modern-day manifesto for the marriage-equality movement.
”For gay women and men, who also love, samesex marriage is a human aspiration, and a human right,” Wolfson wrote at a time when most states still had anti-sodomy laws. ”The Constitution and real morality demand its recognition. By freeing gay individuals as our constitutional morality requires, we will more fully free our ideas of love, and thus more fully free ourselves.”
As one of the early advocates for a constitutional right for same-sex couples to marry nationwide and as a key player in the 1993 Hawaii Supreme Court case challenging the state’s same-sex marriage ban, which sparked a political backlash leading to President Bill Clinton’s signing of DOMA, Wolfson bears a special connection to both cases.
”It’s extremely exciting to be at this moment and to know that the strategy of winning more states and winning more hearts and minds and having those millions of conversations has brought us to 58 percent support among the American people, up from 27 percent when I was doing the trial in Hawaii,” Wolfson told Metro Weekly on the steps of the Supreme Court after the March 26 arguments in the Proposition 8 case.
It was in August 1989 that the academic discussion of same-sex marriage hit major newsstands when the gay journalist Andrew Sullivan presented the ”conservative case for gay marriage” in the pages of The New Republic. In his cover story, ”Here Comes the Groom,” Sullivan argued against local governments’ decisions to create domestic partnerships in the wake of the AIDS epidemic and instead ”legalize old-style marriage for gays.”
”[G]ay marriage is not a radical step. It avoids the mess of domestic partnership; it is humane; it is conservative in the best sense of the word. It’s also practical,” Sullivan wrote. ”Given the fact that we already allow legal gay relationships, what possible social goal is advanced by framing the law to encourage these relationships to be unfaithful, undeveloped, and insecure?”
There were many dark years that saw defeat after defeat for the marriage-equality movement in courts and legislatures before the ”sea change” of public opinion discussed by the justices during March’s oral arguments.
DOMA’s political reality was not forgotten by some members of the high court. During questioning of Paul Clement, the lead attorney defending DOMA for the Republican-controlled House Bipartisan Legal Advisory Group (BLAG), Justice Elena Kagan took issue with the argument that Congress approved DOMA to provide uniformity to the states; and that with Hawaiian courts weighing legalizing same-sex marriage, Congress approved DOMA to ensure that no other state would be forced to honor same-sex marriages performed in other states. She questioned if ”Congress’s judgment was infected by dislike, by fear, by animus, and so forth.”
“[W]hat happened in 1996 — and I’m going to quote from the House Report here — is that ‘Congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality.’ Is that what happened in 1996?” Kagan asked to gasps and murmurs from the courtroom.
“Does the House Report say that? Of course, the House Report says that,” Clement responded. “And if that’s enough to invalidate the statute, then you should invalidate the statute.”