This is what victory looks like. It is a beautiful summer day: June 26, 2015. Crowds in the streets and in the bars display utter jubilation. Ben & Jerry’s renames an ice-cream flavor “I Dough, I Dough” in celebration. Honey Maid tweets a photo of a map made of graham crackers with the caption “love reigns from coast to coast.” Social media sites are awash in rainbow flags. The Supreme Court has issued a much-anticipated ruling: it is unconstitutional to define marriage as simply between a man and a woman. It is an unequivocal moral celebration of marriage, written by the swing vote, a Reagan-appointed Justice Anthony Kennedy. “No union,” it says, “is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were” (Obergefell et al. v. Hodges, 2015, p. 48).
Marriage is, as Chauncey writes in his classic book on the subject, “an emblem of … citizenship and equality” (2005, p. 161). Individual marriages can be frivolous and short-lived, but the institution of marriage itself is never politically unimportant. In addition to its symbolic and political importance, civil marriage has substantial material consequences. It is an economic, legal, and civic institution, which, in the United States alone, confers at least 1,138 federal benefits to married people that are off-limits to their unwed counterparts (Cahill, 2004). These benefits have been widely recognized by policymakers, courts, scholars, and activists. They include a whole host of tax, inheritance, and employment benefits; immigration and child care rights; and medical and legal privileges (Wolfson, 2004; Chauncey, 2005; Obergefell et al. v. Hodges, 2015). This litany of benefits can come cheap to those who are legally entitled to them: marriage licenses might cost a couple tens of dollars, while hiring an attorney to put this wide range of legal protections in place for unmarried partners – from power of attorney to designating a beneficiary to securing parental rights – would likely cost thousands (Chauncey, 2005).
Like most institutions, marriage is also historically contingent. Marrying for love is a relatively new historical development. Until modern times, and in most places around the world, marriage has been a tightly regulated “system of … political and economic advancement” as it created larger families with corresponding “cooperative relations” (Coontz, 2005, pp. 7, 6). In the midto late eighteenth century, alongside industrialization, marriage became a state institution (Blank, 2012). The corresponding shift to love as the basis for marriage arose with the development of modern Western capitalism and substantial shifts in the view and role of women in society (Graff, 2004).
For many gay men, lesbians, and bisexual people, marriage has been one of the primary sites of material, legal, and symbolic struggle in recent decades. As we will see in this chapter, marriage politics are not just about the right to a legal union for same-sex couples. They are also about the role of the state in granting legitimacy and benefits to all people and their various kinds of partnerships and the “struggle over the place of lesbians and gay men in American society” (Chauncey, 2005, p. 3). So, too, the fight for marriage equality has raised debates within LGBTQ communities about assimilationist versus liberationist philosophy, strategies, and tactics of social change and social justice, including the limits and possibilities of achieving social change through the law (see, e.g., Ghaziani et al., 2016). The fight for marriage has relied on a “legal rights strategy” that looks to the courts for LGBTQ social change (Rimmerman, 2002) and reflects a broader debate within LGBTQ and a range of other American social movements about “whether rights matter for social movements” and a critical assessment of “the possibility that law will create social change in controversial areas of public policy” (Bernstein et al., 2009, p. 3).
With the fight over marriage that has emerged since the 1980s and 1990s, we have an important example of LGBTQ movements turning to the law and the state for social change and all the benefits and challenges that come with this strategy. The accomplishment of marriage equality in the US is a story of relatively quick civil rights success – the kind of substantial shift in public opinion that we do not see very often in American politics. It is the story of the role that pop culture, visibility, and celebrity play in social change, and of the complicated relationship between local- and state-level change set against federal politics and federal change. It is a story about the complicated definition of social justice and the role that the state should play in this. It is also the story of a complex movement for LGBTQ social justice that seemed to both proliferate and to constrict around marriage politics.
Marriage equality is not one of those issues about which Americans should fool themselves into thinking they are world trailblazers. The national response is informed by the country’s foundation in Protestantism and the longstanding entanglement – despite the First Amendment’s demand for church–state separation – between the civil government and religion. As sociologist Andrew J. Cherlin argues, Americans both “place a higher value on being married” than their counterparts in other Western countries and are more committed to religion. “From an international perspective,” he writes, “the strength of American religion is striking. In no other Western country is religious practice so vital and influential in shaping people’s beliefs” (2009, pp. 188, 33). This religiosity informs American beliefs on sexuality, as well. The US is, writer Stephanie Coontz argues, “one of the most sexually conservative countries in the industrial world,” reporting much higher numbers of disapproval of homosexuality than its counterparts in Europe, for instance (2005, p. 274).
So, in part because marriage as an institution is relatively more important to Americans and because of American social and sexual conservatism – informed by religion – the US has been behind many of its peer countries in the legalization of same-sex marriage. The Netherlands, in December of 2000, was the first country in the world to allow same-sex marriage; the first such marriages were performed there in 2001. Belgium became the second country, in February 2003, followed by Spain and Canada in the summer of 2005 and South Africa in November 2006. Argentina, in July 2010, became the first Latin American country to legalize same-sex marriage, followed in 2013 by Uruguay and Brazil and, in 2016, by Columbia (Pew Research Center, 2015; Yoshino, 2015). France and England did not adopt marriage equality until 2013, but their relative tardiness in Europe cannot necessarily be read as social conservatism as much as it can be understood as a reflection of the relative lack of importance these countries place on marriage itself (Cherlin, 2009). And Ireland, in May of 2015, became the first country to adopt marriage equality through a popular vote; 62 percent of voters agreed to change the country’s constitution to read: “marriage may be contracted in accordance with law by two persons without distinction as to their sex” (Pew Research Center, 2015, n.p.).
By the time that Obergefell et al. v. Hodges made same-sex marriage legal nationwide in the US in the summer of 2015, another 21 countries around the world – and parts of Mexico – had adopted full marriage equality for same-sex couples. A number of other countries around the world – beginning with Denmark in 1989 – have forms of domestic partnership or civil unions for same-sex couples that extend many of the rights and benefits of marriage (Polikoff, 2008; Cherlin, 2009; Pew Research Center, 2015).
It is important to put marriage equality efforts in perspective and to note the extent to which decriminalizing homosexuality must be on the global human rights agenda. As law professor Kenji Yoshino points out, marriage is legal in about 20 of the approximately 200 countries in the world.1 At the same time, same-sex sex is illegal in more than 70 countries, in 8 of which the punishment is death (2015, p. 10). Being part of a sexual or gender minority in many countries throughout the world puts people at risk of state-sponsored harm and death, as the world saw when it was recently revealed in horrifying detail that Chechnya, in Russia, has been rounding up, torturing, and killing gay men (Kramer, 2017).
Marriage did not become a significant movement focus in the US until the 1990s. But individual LGBTQ people did raise questions about and challenges to the institution of marriage decades before the established movement turned to this issue. Since at least the 1920s, same-sex couples in the US had commitment ceremonies, some of which were even presided over by supportive religious leaders. In 1963, ONE magazine printed a cover story on “homophile marriage,” highlighting that many same-sex couples lived in long-term relationships that they and their loved ones recognized as marriages. Chauncey writes that these early couples did not seem to want or seek state sanction of their unions. Although a small number of same-sex couples did make some early marriage demands of the state, not only did we see that “courts dismissed their petitions as preposterous,” but “most lesbian and gay activists agreed,” so far were those who might have been interested in marriage-like relationships from imagining that they could claim equal rights with heterosexual couples (2005, pp. 87, 88).
In the early 1970s, some couples sought entry into the institution of marriage by simply walking into their local clerk’s office and attempting to obtain a license. When this was denied, some filed lawsuits and went public with their cases. At the time, many states did not explicitly stipulate that marriage must be between partners of different sexes, but these early legal challenges – which were handily dismissed by courts – changed that. As the Minnesota Supreme Court ruled in the high-profile case of Baker v. Nelson in 1971: “The institution of marriage as a union of man and woman, uniquely involving the procreating and rearing of children within a family, is as old as the book of Genesis” (quoted in Stoddard, 1993, p. 400). Through the 1970s, 15 states passed laws explicitly defining marriage as being only between a man and a woman (Chauncey, 2005).2
Individual early acts of resistance to the exclusivity of marriage did not result in a broader movement focus on the issue. Instead, the mainstream gay and lesbian movement tended to focus on community-building and on winning the rights of gay and lesbian individuals (for job security, for example) rather than of couples. Despite this, however, there were, Chauncey writes, “two searing experiences of the 1980s that forever impressed on lesbian and gay men the importance of securing their relationships: the devastating impact of AIDS and the astonishingly rapid appearance of what everyone soon called the lesbian baby boom” (2005, p. 95; also see Stacey, 2011). As the same-sex partners of (mostly male) AIDS victims were, during moments of utter tragedy, shut out of hospitals rooms and health care decision-making and had no legal claim to estates and death benefits, the AIDS epidemic made the definition of family a matter of survival.3
Rather than ushering in a fight for marriage per se, the early response to the tragedy of AIDS pushed activists to fight for some kind of legal recognition of partnership and family. As early as 1982, the Village Voice – an alternative newspaper in New York City – was the first private employer to extend benefits to the “spousal equivalent” of its employees, regardless of gender, while the California cities of Berkeley and West Hollywood established the first public domestic partnership policies in 1985. By the beginning of the 1990s, directly as a result of the AIDS crisis, cities like New York, Los Angeles, and San Francisco led the way in extending domestic partnerships or domestic partner benefits – for example, bereavement leave and health insurance – to same-sex couples. Private companies and universities began to do the same. Ben & Jerry’s, the Vermont-based ice-cream company, was one high-profile example of a private company that, in 1989, extended benefits to same-sex, unmarried partners and was vocal about its rationale: “We really believe the family is who you love and who you live with … the families of all [Ben & Jerry’s] workers deserve as a basic human right to live free of the fear that a catastrophic illness or accident could destroy them financially” (Polikoff, 2008, pp. 49–50). These policies proliferated, and by the time the first marriage licenses were being granted to same-sex couples, in Massachusetts in 2004, nearly half of the Fortune 500 companies in the country offered some benefits to their employees’ same-sex domestic partners, as did the public offices of ten states and more than 125 localities.4
But, was marriage itself worth fighting for? By the late 1980s, LGBTQ Americans were beginning to grapple with this question in earnest. As with many other social movements of the past century, the debate over marriage equality rested on the question of whether assimilation into mainstream institutions is preferable to the creation of new institutions, and on whether marginalized minorities of any kind should turn primarily to the government to grant them legitimacy. Was marriage an institution worth embracing? And what role should the state play in the intimate lives of its inhabitants?
Seidman argues that the role of the government in private romantic and sexual lives has changed over time. Until the midnineteenth century in the US, “[t]he state mostly stayed out of the business of regulating its citizens’ intimate affairs” (2002, p. 166). This shifted in the years between 1860 and the first few decades of the twentieth century, when heterosexuals and their families were the target of a new “web of governmental control” around “birth control, abortion, interracial marriage, prostitution, commercial sex, forced sterilization, and public sexual representations” (2002, p. 168). In the decades after World War II, this subsided for heterosexuals, but between the 1930s and 1960s, “[f]or the first time in American history, the state mobilized its growing authority and resources to control same-sex behavior” as sexual minorities became “the personification of the bad sexual citizen” (2002, pp. 170, 173).
LGBTQ writers and activists had two responses to the state’s new control: some sought the support of the state and recognized its institutions, laws, and policies to be the potential source of change, while others opted out; “[i]n short, assimilationists want homosexuals to be recognized and accepted as good sexual citizens; liberationists challenge the sexual norms associated with this ideal” and do not look to the state as the solution (Seidman, 2002, p. 173). While, as we saw in chapter 2, there was a flourishing strand of liberationism after Stonewall, by the mid-1970s assimilationist politics had won out in the organized lesbian and gay movement. The assimilationist majority “press[ed] America to live up to its promise of equal treatment of all of its citizens; they wish[ed] to be a part of what is considered a basically good nation; this requires reform, not revolution” (2002, p. 175). Still, the fight for marriage equality is one of those key issues, Seidman argues, that engaged both assimilationists and liberationists, as it concerns the proper relationship between the state and LGBTQ people and the cultural question of what counts and gets state-sanctioned as normal.
With its historical connections to both heterocentrism and the oppression of women (see, e.g., Blank, 2012), modern Western marriage has been the object of criticism by both feminists and LGBTQ theorists and activists for decades. Many have questioned whether marriage as an institution should be rejected in favor of alternative forms of intimate and family relationships not necessarily based in monogamy or traditional gender roles. The Gay Liberation Front, in 1969, offered this critique: “We expose the institution of marriage as one of the most insidious and basic sustainers … of the system” (Stacey, 2011, p. 13).
Yet, by the late 1980s and early 1990s, marriage had gained traction as a civil rights goal and as a matter for debate. One of the earliest clashes over marriage and its political role in the movement took place on the occasion of the 1987 March on Washington, even before marriage became a focus of the mainstream movement. During this second national march, a Los Angeles group called Couples Inc. organized a collective ceremony, dubbed the Wedding, outside of the federal Internal Revenue Service (IRS) building. The event was both a celebration and a political action for, according to the Couples Inc. president, “equal rights to demand recognition of our existing ongoing relationships” (Ghaziani, 2008, p. 120). This was an assertion of the need for rights for lesbian and gay couples – not just individuals – and, outside the IRS, it highlighted the fact that the government, in denying same-sex couples access to the institution of marriage, deprived them of rights and benefits. This demonstration – of more than 7,000 people – was “the most controversial event of the march” (Ghaziani et al., 2016, p. 173), because it revealed a philosophical split among lesbian and gay people and activists concerning the value versus the harm of marriage and the question of whether entry into this institution was worth collectively fighting for.5
Following the controversy over the 1987 action, the most highly cited early debates about marriage among lesbian and gay activists occurred in a 1989 issue of Out/Look magazine between two lawyer-activists: Thomas Stoddard, a gay man who was the executive director for Lambda Legal Defense and Education Fund, and Paula Ettelbrick, a lesbian feminist who was Lambda’s legal director. In his contribution, “Why gay people should seek the right to marry,” Stoddard noted that marriage was a traditionally stifling institution that had been “oppressive, especially (although not entirely) to women,” and that it was not yet a political goal for the movement; marriage should nevertheless be a right for gay and lesbian people.6 Even more, marriage (and all the legal and material benefits that accompany it) should become a focus of the current “gay rights movement” (1993, pp. 398, 400). Noting the central and symbolic importance of marriage, Stoddard wrote that it is “the centerpiece of our entire social structure,” and that alternatives, like domestic partnership, still demean gay and lesbian people and their intimate relationships. “Gay relationships,” he argued, “will continue to be accorded a subsidiary status until the day that gay couples have exactly the same rights as their heterosexual counterparts.” At the same time, Stoddard’s focus on rights as the basis for full citizenship included the notion that “enlarging the concept [of marriage] to embrace same-sex couples” would not simply reproduce its oppressive characteristics, but “would necessarily transform it into something new” (1993, pp. 400, 401; emphasis in original).
In her response, titled “Since when is marriage a path to liberation?” Ettelbrick agreed with Stoddard about marriage’s cultural centrality. But, she reached a very different conclusion about the relationship that LGBTQ people should have with this institution. She saw gaining the right to marriage as a tempting but problematic goal. “After all,” she wrote, “those who marry can be instantaneously transformed from ‘outsiders’ to ‘insiders,’ and we have a desperate need to become insiders.” Marriage would normalize gays and lesbians in the eyes of their families and friends: “Never again would [we] have to go to a family reunion and debate about the correct term for introducing our lover/partner/significant other to Aunt Flora. Everything would be quite easy and very nice.” But marriage, Ettelbrick wrote, “will constrain us, make us more invisible, force our assimilation into the mainstream, and undermine the goals of gay liberation” (1989, p. 402).
Asserting an explicitly queer identity, Ettelbrick argued that “[b]eing queer means pushing the parameters of sex, sexuality, and family and, in the process transforming the very fabric of society.” She urged the movement not to take up the marriage fight, calling it a “trap” that would stigmatize non-married gay and lesbian people, restrict the range of acceptable intimate and family arrangements, and invite the state in to further regulate and confine queer sex and relationships. It also would put resources and energy toward an issue that resonates most with white, well-off men, centering their experience and their issues. Rather than turning the movement’s focus to marriage, she argued that “[w]e must keep our eyes on the goals of providing true alternatives to marriage and of radically reordering society’s views of family” (1989, pp. 402–403, 405).
As marriage gained some traction politically in the 1990s, the debate continued on the extent to which a civil rights versus a liberationist focus was the most effective means to LGBTQ social justice. The difference in view between two prominent gay writers, Andrew Sullivan and Michael Warner, offers another example of the philosophical and political arguments for and against marriage within the movement at this time.
Sullivan made a strong case for a marriage movement in his 1995 book Virtually Normal. Laying out a plan for the future of gay and lesbian politics, Sullivan called for the movement to concentrate entirely on achieving legal and “formal public equality” rather than focusing on broader cultural shifts and arenas; furthermore, “equal access to civil marriage” should be the “centerpiece of this new politics.” Because marriage is so symbolically important and civil marriage confers deep public legitimacy, “[d]enying it to homosexuals is the most public affront possible to their public equality” (1995, pp. 178, 179). Sullivan firmly staked his claim on marriage on the basis that, “[i]f nothing else were done at all, and gay marriage were legalized, ninety percent of the political work necessary to achieve gay and lesbian equality would have been achieved. It is ultimately the only reform that truly matters.” While he left some room for a recognition and celebration of “what is essential and exhilarating about [the] otherness” of lesbian and gay people, he was dismissive of liberationist philosophy and politics (1995, pp. 185, 204). Sullivan (2003; 2004a; 2004b) continued to advocate for marriage in the years to come. For him, civil marriage is a state-sanctioned recognition of full humanity that, by definition, changes gay people’s relationships with their families of origin, with their futures, and with their country.
In 1999, academic Michael Warner made a strong case against a marriage movement, partly in direct response to Sullivan.7 On the very first page of The Trouble with Normal, Warner plainly wrote of the normalizing institution of marriage: “I argue that marriage is unethical”; to continue focusing movement energy on marriage “represents a widespread loss of vision.” He also saw the desire for marriage as merely an attempt to “clean ourselves up as legitimate players in politics and the media.” This inherently de-sexing strategy, argued Warner, sent the problematic message that, “if you behave yourself, you can have a decent life as a normal homo – at least, up to a point” (1999, pp. vii, 39-40).
Warner had a few basic problems with marriage. First, a movement focus on marriage seeks validation from the state, bringing it in as an arbiter of legitimate intimate relationships. To say that marriage is simply a private, individual, politically neutral choice or right that should be available to everyone is to ignore the role that the state plays in sanctifying some relationships and prohibiting or criminalizing others and in conferring hundreds of tangible/material benefits on people within the institution. Involving the state in same-sex relationships in this way is not a costless political choice. Second, and relatedly, Warner argued that the movement’s marriage focus narrows the range of legitimate and acceptable relationships, providing a moral dividing line among LGBTQ people and their relationships. Marriage pares down the “astonishing range of intimacies” that are available to and part of queer lives and communities (1999, p. 116).
Finally, Warner wrote, marriage is the narrow goal of a movement that is bent on a broader “dequeering agenda,” one that is increasingly led by and representative of a privileged part of the LGBTQ community: a largely white, well-off, male, genderconforming, corporate-leaning group that is most interested in public “respectability” above all else politically. “[I]n its newest manifestation,” Warner worried, “the lesbian and gay movement threatens to become an instrument for the normalization of queer life. Nowhere is that more visible than in the presentation of the gay marriage issue.” Citing Sullivan directly here, Warner wrote that marriage divides the queer community into the “Good Gay,” who “would not challenge the norms of straight culture, who would not flaunt sexuality, and who would not insist on living differently from ordinary folk,” and the “Bad Queer,” who is “the kind who has sex, who talks about it, and who builds with other queers a way of life that ordinary folks do not understand or control” (1999, pp. 139, 78, 80, 113, 114).
This philosophical debate over marriage has continued (Bernstein & Taylor, 2013; Kimport, 2014; Bernstein, 2015; Ghaziani et al., 2016). Some progressives have articulated similar concerns to those of Warner about the institution of marriage and the extent to which the mainstream LGBTQ movement has focused on marriage rights and on privileging a certain narrow set of intimate relationships (Polikoff, 2008; Stacey, 2011). Lisa Duggan argues that the fight for marriage now displays a “new homonormativity”: “a politics that does not contest dominant heteronormative assumptions and institutions, but upholds and sustains them … a privatized, depoliticized gay culture anchored in domesticity and consumption” (2003, p. 50; emphasis in original). As writer Hugh Ryan lamented in 2014: “Marriage is here, it’s not queer, and we’ve already gotten used to it” (n.p.).
However, some LGBTQ activists and academics who are decidedly progressive and liberationist have embraced marriage, illustrating the philosophical and political complexity of this issue within the movement (Rofes, 2002). Other progressives, too, have picked up Stoddard’s argument that LGBTQ participation in marriage could and would change the institution, and that this was an important project of the movement: participating in existing institutions and changing them from within. Sociologist Mary Bernstein, for instance, argues about the potential of same-sex marriage: “the very presence of gay male and lesbian couples, especially those with children, destabilizes the heteronormativity heterosexual people take for granted” (2015, p. 323; also see Graff, 1996).
As activists and writers debated the philosophical and political implications of marriage through the late 1980s and 1990s, the Religious Right that emerged as a political force at the end of the 1970s gained power and numbers and increasingly demonstrated its influence at the ballot box. Even as mainstream Protestant denominations began to open up a bit to gay rights and to denounce anti-gay discrimination, the Christian Right doubled down on its anti-gay agenda, wielding it to gain political power (Diamond, 1995; Chauncey, 2005). Religious conservatives framed themselves as defenders of Christian morality against a dangerously secularized state. In the name of religious freedom, they called for a “defense” of traditional values and the withholding of protections for lesbian and gay people. They called for the state, instead, to protect their freedom as Christians and to do their bidding.
The Religious Right gained new national political presence when Pat Robertson – whom we met in chapter 3 – ran for president in the 1988 Republican primaries. Although he did not win his party’s nomination, the 2 million votes he received did help launch the Christian Coalition, a prolific and wildly successful political organization that Robertson founded in 1989 that relied on local, grassroots organizing (Vaid, 1995; Fetner, 2008; Polikoff, 2008). Building power, Robertson and the Christian Right inserted their politics into the 1992 presidential election in unprecedented ways (Diamond, 1995). Herzog writes that 1992 “marked the first time the rights of homosexuals became a major theme in a presidential election” (2008, p. 61). The national Republican Party platform that year opposed nondiscrimination protections on the basis of sexual orientation and opposed same-sex marriage and other family rights, such as adoption (Cahill, 2004). At the Republican National Convention, more than 40 percent of the delegates identified as evangelical Christians, and Christian Right mega-commentator and political strategist Pat Buchanan, who had run that year for president in the Republican primaries, gave the Convention’s opening remarks, opining: “[T]here is a religious war going on in this country for the soul of America. It is a culture war as critical to the kind of nation we shall be as the Cold War itself” (Fetner, 2008, p. 80).
In the early 1990s, the Christian Right also continued to work on the local front, building on work that Anita Bryant began in the late 1970s, by supporting local anti-gay ballot initiatives in a number of states across the country. Exemplifying this effort was Colorado’s Amendment 2, a statewide ballot initiative approved by 53 percent of voters in November 1992. The proposition amended the state constitution to prevent any municipality, state department, or school district in the state from passing laws that would protect gay, lesbian, and bisexual people from discrimination based on their sexual orientation (Rimmerman, 2002). Amendment 2 eventually was ruled unconstitutional, in the 1996 landmark decision of Romer v. Evans, in which the Supreme Court was clear that the initiative so egregiously targeted LGB Coloradans that it “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do” (quoted in Sullivan, 2004a, p. 104). Despite this gay rights victory, the Amendment 2 initiative signaled the Christian Right’s new aggressive insertion into local and national American politics. The Colorado fight was also indicative of the “direct democracy” political strategy that the Religious Right had effectively employed since the Anita Bryant days: the use of local anti-gay ballot measures. Sociologist Amy L. Stone notes that 146 such measures appeared on ballots between 1974 and 2009 (2012, p. xv).
The early 1990s was a time of some initial legal and political progress on marriage equality, as we will see below. This served to further mobilize the Christian Right. The 1996 passage of federal legislation restricting marriage benefits to mixed-sex couples was one direct rightwing response to the possibility of marriage equality. In a presidential election year, and with almost three-quarters of Americans reporting that they opposed same-sex unions, Republicans in Congress introduced the Defense of Marriage Act (DOMA). The bill codified a definition of marriage as solely between a man and a woman, thus denying any federal marriage benefits to same-sex spouses: “[T]he word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife” (quoted in Sullivan, 2004a, p. 207). DOMA also explicitly established that states were not compelled to recognize same-sex marriages from other states. So, while mixed-sex couples, by virtue of the Full Faith and Credit Clause of the US Constitution, can travel from state to state with the assurance that their marriage will be recognized across the country, DOMA explicitly did not extend this right to same-sex spouses. Same-sex couples who were married in their home state could cross state lines and find themselves suddenly single in the eyes of the law. Congress passed DOMA easily, with votes of 342 to 67 in the House and 85 to 14 in the Senate (Faderman, 2015). Democrat Bill Clinton had been elected president in 1992 in part by making promises about advancing gay and lesbian rights. But when the Defense of Marriage Act arrived on Clinton’s desk in September 1996, he signed it – late one night and with no public fanfare.8
Just as the federal government had narrowly and explicitly defined marriage, so states began to do the same (Stone, 2012). In early 1995, South Dakota legislators passed a state law explicitly clarifying that “any marriage between persons of the same gender is null and void” (Faderman, 2015, p. 587). Statewide ballot initiatives – popular votes on marriage – began in 1998 in Alaska and Hawaii (Stone, 2012). By the end of the year 2000, 40 states – either by legislative action or popular vote – had passed laws or constitutional amendments explicitly excluding same-sex couples from the institution of marriage (Same-sex marriage laws, 2015).
The Right won a lot of the battles it waged on marriage equality in the late 1990s and the early part of the new millennium. “[T]he first conservative evangelical Republican president,” George W. Bush, was elected as US President in 2000, and this “emboldened” the Religious Right (Herzog, 2008, p. 166). And, for this revitalized Right, 2004 was a banner year, as President Bush backed a Federal Marriage Amendment proposal that sought to change the federal Constitution to restrict marriage to a union between a man and a woman.9 Noting, in February 2004, that an amendment was needed to “protect marriage” for the greater good, Bush counseled: “Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society” (Sullivan, 2004a, pp. 342, 343). This sentiment was reflected in the ballot box. Neither the Democratic Party platform nor the Republican Party platform supported marriage equality in 2004 (Cahill, 2004). And, on the day that President Bush was re-elected on November 2, 2004, 11 states (out of 11 that were considering such initiatives) passed measures that banned same-sex marriage via state constitutional amendments. Eight of these states even banned civil unions (Associated Press, 2004; Chauncey, 2005).
In the Right’s crusade against marriage equality, it is worth noting the return of an anti-gay trope that we have seen at least since World War II: this framing of gay and lesbian Americans as threatening to the nation and its young people. Remember Anita Bryant and John Briggs in the 1970s, and their campaign to “save” American youth from ostensible homosexual predators and recruiters and the anti-gay local and state ballot initiatives that followed in the early 1990s (Stein, 2001). Once again, in the marriage fight, the Right trotted out the menacing image of a gay man or gay couple posing a grave danger to innocent children.
As the fight over California’s anti-gay Proposition 8 held the future of marriage equality in the balance in the fall of 2008, a highly-effective “yes on 8” television ad began to air in both Spanish and English.10 The 30-second ad opens with an adorable girl in pigtails running up to her mom, who is sorting mail at a kitchen counter. The girl is holding the children’s picture book King & King, by Dutch authors Linda De Haan and Stern Nijland. The girl hands the book to her mom as she reports enthusiastically: “Mom, guess what I learned in school today? … I learned how a prince married a prince, and I can marry a princess!” Pepperdine University School of Law Professor Richard Peterson takes over part of the screen (in the way a used car salesman might in a low-budget, late-night ad) and warns: “Think it can’t happen? It’s already happened! When Massachusetts legalized gay marriage, schools began teaching second graders that boys can marry boys.” The mom’s eyes widen and she considers the book with a look of deep concern. The ad ends as the words on the screen urge: “Protect Our Children. Restore Marriage.”11
Marriage equality strategist and activist Marc Solomon called this “Princes” ad “diabolically brilliant” (2014, p. 227). Many considered it and its “fear-mongering message that children are in danger” (Fleischer, 2010, p. 49) to be incredibly effective in influencing hundreds of thousands of voters who ultimately voted for Prop 8, including half a million parents with children at home. Overall, the ad’s message that legalizing same-sex marriage endangers children was central to the success of the anti-gay Prop 8 campaign (Fleischer, 2010).12
The earliest marriage equality fighters had to work hard to convince their colleagues that marriage was strategically worth the broader movement’s attention. Evan Wolfson was an early believer in the cause of marriage and a tireless champion of it. As early as 1983, as a Harvard Law School student, Wolfson had written a thesis that argued for a focus on marriage equality, writing of its importance to the broader cause of lesbian and gay social justice (Yoshino, 2015). Working as a lawyer for Lambda Legal before movement activists saw marriage equality as viable or desirable, Wolfson had to fight to involve the LGBT legal rights organization in a marriage equality case in Hawaii. He was even briefly fired for pushing back on Lambda’s refusal to represent the plaintiffs in that case (Wolfson, 2004; Chauncey, 2005; Solomon, 2014).
In December 1990, as the Religious Right was gaining power and visibility in national politics, three same-sex couples together requested licenses and were denied them in Honolulu. They filed suit, claiming that it was unconstitutional to deny their access to marriage. Two and a half years later, in May 1993, they received a first-of-its-kind favorable ruling by the Hawaii Supreme Court. The ruling, Baehr v. Lewin, considered whether the couples had a “fundamental right of marriage” (quoted in Sullivan, 2004a, p. 96), recognizing that marriage comes with many material benefits that same-sex couples are unable to access, and invoking Hawaii’s state constitution’s equal protection clause. The Court indicated that the lower court could only deny these couples their marriages if it could articulate “compelling state interests” in favor of doing so.
While this was a huge legal victory, particularly evident in the reasoning that same-sex marriage bans denied equal protection on the basis of sex, the ruling did not result in any same-sex marriages in the state. Instead, the Hawaii Supreme Court kicked the case back down to the lower court, which heard it in 1996 and ruled that the state had not, in fact, shown that it had a compelling interest in preventing same-sex marriages. The court declared that the state could no longer deny licenses to same-sex couples, but it stayed its ruling until the case was resolved by a higher court. By November 1998, Hawaiian voters had passed a state constitutional amendment that allowed the state legislature to define marriage as only between a man and a woman – which the legislature promptly did. This initiative passed with 69 percent of the vote and was the focus of a major national conservative campaign (Chauncey, 2005; Polikoff, 2008).
In the end, no same-sex marriages took place in Hawaii in the 1990s, despite the favorable ruling in 1993. But, Hawaii ignited a movement and showed that court rulings in favor of marriage equality were possible (Chauncey, 2005). Marriage equality advocates continued their state-level fights for recognition, while Wolfson continued to be a vocal, enthusiastic, national leader, eventually founding the organization Freedom to Marry. In the early 1990s, after the Hawaii win, a young lawyer, Mary Bonauto, worked on behalf of New England’s Gay & Lesbian Advocates & Defenders (GLAD) to adopt the vision for the movement that marriage equality was the way to achieve broader LGBTQ equality.
One of the most important political aspects to understand about the marriage equality movement is that its architects, activists like Wolfson and Bonauto, had a state-by-state strategy in mind all along. They were quite deliberate about the geography of their work. They knew they had a state game to play that would, at some point, result in a battle on the federal front: fighting DOMA and bringing a marriage challenge to the Supreme Court. But, they started in what they believed to be the most hospitable states, and they went from there (Winning Marriage, 2005; Solomon, 2014).13 They had a theory of legal change that relied on this state-by-state strategy.
Turning to New England as a strategic starting point, Bonauto and GLAD led the legal charge for civil equality in Vermont.14 Their suit filed on behalf of three same-sex couples resulted in a December 1999 Vermont Supreme Court ruling that the benefits of marriage could not be withheld from same-sex partners, although the result was the establishment of a separate-but-equal category of “civil unions” for same-sex partners (Chauncey, 2005; Polikoff, 2008). Civil unions were won in a number of other states, but civil rights groups continued to fight for full marriage. “Comparing marriages to civil unions or domestic partnerships,” the Human Rights Campaign wrote, “is a bit like comparing diamonds to rhinestones. One is, quite simply, the real deal; the other is not” (n.d., p. 5).15
Just as this state-level strategy was gaining steam, the marriage movement got a bit of help from the Supreme Court. In its June 26, 2003 decision in Lawrence v. Texas, the Court finally decriminalized sodomy, overruling the 1986 decision in Bowers v. Hardwick that had upheld its criminalization. The 2003 ruling overturned a Texas law, and similar laws against sodomy in twelve other states, where same-sex couples (as well as mixed-sex couples in nine states), could face criminal charges for engaging in adult, private, consensual anal or oral sex (Greenhouse, 2003). This ruling was a huge step forward in the struggle for LGBTQ rights. It decriminalized same-sex sexual practices and, for all intents and purposes, LGBTQ people (Richman, 2009). As Yoshino argued, the criminalization of sodomy in Bowers had provided a foundation for further limits on gay people: “Bowers caused many courts to rule that gays could not receive any meaningful protection under the Constitution … These courts reasoned that a Constitution that allowed homosexual conduct to be criminalized could not bar other forms of discrimination against gays” (2015, pp. 37–38). According to Sullivan, overturning Bowers therefore removed “[t] he single most serious barrier to recognizing the right to marry” (2004a, p. 106).
On the heels of this Supreme Court victory came the first marriage equality court decision that actually resulted in some marriages, filed by Bonauto in Massachusetts. On November 18, 2003, the Massachusetts Supreme Judicial Court ruled, in Goodridge v. Department of Public Health, that “barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution” (quoted in Sullivan, 2004a, p. 118). The Court gave the state 180 days to begin issuing marriage licenses and was very clear that a separate-but-equal civil unions solution was not acceptable (Cahill, 2004). On May 17, 2004, Massachusetts became the first state in the US to begin legally marrying same-sex couples. On that first day, 752 couples obtained a marriage license (Chauncey, 2005).
In the six-month period between the Massachusetts ruling and the first legal same-sex unions, marriage equality supporters across the US began taking action to secure marriage rights for same-sex couples. Most of these were extralegal acts that, in the end, were undone. For instance, the young, straight, Irish Catholic new mayor of San Francisco, Gavin Newsom, made a remarkable, high-profile move: in defiance of a California ban on same-sex marriage (an earlier one, before Prop 8), and right in time for Valentine’s Day, he simply began issuing marriage licenses in his city on February 12, 2004. According to reporter and marriage equality activist Matt Baume (2015), Newsom had been prompted by President Bush’s anti-marriage push in his 2004 State of the Union address to take a local stand for same-sex marriage. Newsom’s act of civil disobedience in defiance of state law began with the marriage of a lesbian couple – Phyllis Lyon and Del Martin – who had been together for more than 50 years and who had, as you will remember from chapter 2, founded the Daughters of Bilitis. San Francisco officials continued to marry thousands more same-sex couples who, for the most part, lined up for licenses as an act of political protest (Taylor et al., 2009). Within the month, the California Supreme Court stepped in and ordered the city to stop. By this time, approximately 4,000 same-sex couples had been issued marriage licenses in San Francisco. The state Supreme Court ultimately ruled that these marriages were invalid.16
Other rogue local leaders who supported marriage equality followed Newsom’s path. A day-long action by a clerk in Sandoval County, New Mexico on February 20, 2004, resulted in more than 60 same-sex marriage licenses (Morn, 2013). Jason West, the 26-year-old mayor of New Paltz, New York, presided over 24 same-sex marriages on February 27, 2004, then was stopped by judicial action and charged with misdemeanor counts of “solemnizing marriages without a license” (Rovzar, 2011, n.p.). In early March 2004, the county in Oregon that included Portland issued licenses to same-sex couples for seven weeks, marrying more than 3,000 couples before a judge stepped in (Chauncey, 2005).
By the spring of 2004, same sex marriages – legally licensed and not – were taking place in large number, and marriage equality looked like an ambitious but a potentially viable goal for the LGBT civil rights movement. On the heels of the Massachusetts win, Wolfson, Bonauto, Matt Coles from the American Civil Liberties Union (ACLU), and others convened in Jersey City in May 2005 to devise a plan for national marriage equality. They predicted a win on full marriage in just 10 states by the year 2020 – as well as civil union-like alternatives in another 10 states (Solomon, 2014). Their short-term plan for the next four to five years was marriage in just two or three more states (Winning Marriage, 2005, p. 4).
Massachusetts was, as we have seen, the first state to legalize same-sex marriage, in the spring of 2004. The second state to do so, more than four years later, was Connecticut, when that state’s Supreme Court overturned the state’s marriage ban in October 2008. The third state, right in the heartland, was Iowa, in April 2009. The Iowa Supreme Court decision was significant because it was unanimous and because it was in a part of the country that had a reputation – fairly or not – for conservative social values. The court’s reading that denying same-sex couples the right to marry was unconstitutional was, in the words of one Lambda lawyer, “a game-changer” for these reasons (quoted in Witosky & Hansen, 2015, p. 212). These first few states had achieved marriage equality by judicial decision. But the next few states, also in the spring of 2009, took legislative action on behalf of marriage equality for the first time, in Vermont, Maine (later repealed before it was reinstated by voters), and New Hampshire (Solomon, 2014). By November 2012, for the first time, voters went to the polls and supported marriage equality, voting in favor of it in each place it was on the ballot: Maryland, Washington state, Minnesota, and Maine. The pace in the states accelerated. In May 2013, within a span of ten days, three new states – Rhode Island, Delaware, and Minnesota – gained marriage equality through legislative action (Solomon, 2014). A series of lower and appellate court decisions in late 2013 and throughout 2014 brought marriage to all but 13 of the remaining states in the country (Yoshino, 2015).
As the state battles marched on and marriage equality activists amassed a number of wins, debates began over whether to it was time to pursue a federal challenge to marriage bans. An intra-movement disagreement unfolded over the most effective course of action for legal change. Some marriage equality supporters wanted to push forward with a federal challenge to DOMA and California’s Proposition 8, with an eye toward undoing the existing state-level bans and bringing a Supreme Court ruling that could make same-sex marriage legal nationwide. Others, including many of the groups and lawyers that had been carefully and strategically fighting the state battles, believed that a federal – ultimately a Supreme Court – challenge was, in the words of a Lambda Legal attorney, “risky and premature” (quoted in Yoshino, 2015, p. 33). By early 2009, after the passage of Proposition 8, just four states had achieved marriage equality. By contrast, as Yoshino points out, when the case challenging bans on interracial marriage was filed, ultimately leading to the Supreme Court’s 1967 Loving v. Virginia ruling that outlawed any state bans, 33 states allowed interracial marriage. Bringing federal suits, then, meant asking the courts to get ahead of the states, and this worried longtime marriage movement strategists. They believed that they needed to win more states before they could focus on a successful federal suit. They knew that the stakes, if they were to lose at the Supreme Court level, were too high (Solomon, 2014; Yoshino, 2015).
Yet lawyers launched two federal lawsuits that ultimately found their way to the Supreme Court. The first was a direct challenge to Prop 8 in California, brought by a new marriage advocacy organization, the American Foundation for Equal Rights (AFER), and its bipartisan high-profile legal team (the pair of lawyers had been on opposite sides of the Bush v. Gore suit in 2000, which ultimately landed the presidency for George W. Bush).17 In the few years to follow, a federal challenge to DOMA was also shaping up, led by a private attorney who had experience with LGBTQ rights cases and who had been contacted by Edie Windsor, a New York City lesbian in her 80s. Because of DOMA, Windsor stood to owe the federal government more than $300,000 in estate taxes when her wife died, because her marriage was not eligible for federal affordances (Faderman, 2015).
The federal district judge in California found that Prop 8 violated the federal Constitution’s Fourteenth Amendment on grounds of equal protection and due process. The appellate court agreed. And on June 26, 2013, the Supreme Court decided, in a 5–4 vote in Hollingsworth v. Perry, to let the initial district court level ruling stand. This invalidated Prop 8 itself but avoided a broader and more substantive ruling that might have rendered all state marriage bans unconstitutional. On the same day in the summer of 2013, the Supreme Court issued a broad ruling in the United States v. Windsor DOMA case. In another 5–4 decision written by Justice Kennedy, the Court ruled that Section 3 of DOMA (the part of the law that defined marriage as solely between a man and a woman) was unconstitutional, in that it “writes inequality into the entire U.S. Code” and “disparages and injures those whom the state, by its marriage laws, sought to protect in personhood and dignity” (quoted in Faderman, 2015, p. 628; also see Yoshino, 2015).
Another important part of the federal marriage story is President Barack Obama’s shifting position on marriage and his role in the politics and jurisprudence of marriage. When Obama ran for president in 2008, he had not publicly supported same-sex marriages (though many believed he was a supporter – see Faderman, 2015), nor had any of the other front-runners for that office. Obama said that he supported civil unions but that he believed “that marriage is the union between a man and a woman. For me as a Christian, it’s a sacred union” (Faderman, 2015, p. 611). As a candidate, Obama worked to thread the needle by supporting LGBTQ rights without alienating a broader public that was, on balance at the time, against same-sex marriage.
During his first term in office, at a time when he said that he was “evolving” on the issue (Faderman, 2015, p. 614), Obama’s first major move toward marriage equality was to instruct his Department of Justice to stop defending DOMA, finding that it was unconstitutional. In addition, in the summer of 2011, he supported a bill in Congress to repeal DOMA (Yoshino, 2015). Finally, after Vice President Joe Biden announced on national television that he was “absolutely comfortable” with same-sex marriage (quoted in Solomon, 2014, p. 304), Obama explicitly came out for marriage equality. On May 9, 2012, he did a carefully staged televised interview with popular Good Morning America anchor Robin Roberts, in which she asked directly: “Mr. President, are you still opposed to same-sex marriage?” and he responded: “I’ve been going through an evolution on this issue.” He said that he had thought civil unions might be a workable alternative, but that this had changed. “I’ve just concluded that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married” (Solomon, 2014, p. 307; Faderman, 2015, p. 615). When Obama ran for reelection in 2012, he became the first viable candidate to run as a supporter of marriage equality. That year, as well, marriage equality became part of the national Democratic Party platform for the first time (Bolcer, 2012).
Finally, although the Supreme Court declined to provide a broad ruling on marriage in the Prop 8 case, it finished the job exactly two years later, on June 26, 2015 (and 12 years to the day after its ruling in Lawrence v. Texas). By that time, after Perry, appellate courts across the country had ruled that state bans on same-sex marriage were unconstitutional. One court, however, the Sixth Circuit Court of Appeals with the jurisdiction of the states of Kentucky, Michigan, Ohio, and Tennessee, upheld a marriage ban in its November 4, 2014 ruling. This disagreement among the appellate courts made the need for a national resolution to the constitutional issue of marriage more immediate. In January 2015, the Supreme Court agreed to hear the cases that came out of this Sixth Circuit, under the consolidated name of Obergefell v. Hodges. The named plaintiff, James Obergefell, was from Ohio and had a male partner who suffered from Lou Gehrig’s disease. As Obergefell’s partner was dying, they chartered a plane to Maryland, a state where they could legally wed, and were married as the plane sat at the Maryland airport. After Obergefell’s husband died, Ohio denied Obergefell’s request to be listed as married on the death certificate (Faderman, 2015; Yoshino, 2015).
On June 26, 2015, in another 5–4 decision penned by Justice Kennedy, the Court ruled unequivocally that, on Fourteenth Amendment grounds, all marriage bans must be lifted and same-sex couples granted the rights to marry in their states. Kennedy wrote:
The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold – and it now does hold – that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.
Kennedy closed with a soaring statement on the importance of marriage. Of the Court’s petitioners, he concluded: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right” (Obergefell, 2015, pp. 48, 49).
With this decision, complete civil equality on marriage in all 50 states was achieved. Many ecstatic observers celebrated the marriage movement’s rapid and surprising success. Sullivan, for instance, wrote: “I never believed this would happen in my lifetime…. I never for a millisecond thought I would live to be married myself. Or that it would be possible for everyone, everyone in America” (2015, n.p.; emphasis in original).
Over the past few decades in the US, there has been a dramatic change in public opinion and broad cultural shifts on marriage and LGBTQ rights (Fetner, 2016; Gates, 2017). Chauncey writes of gay and lesbian people: “[I]t is hard to think of another group whose circumstances and public reputation have changed so decisively in so little time” (2005, p. 166). He notes, particularly, that the public attitudes of young Americans have changed considerably and he attributes some of the overall shift to increasing personal familiarity with gay and lesbian people.18 Chauncey notes that in 1985 more than 50 percent of Americans reported that they did not know a gay person. By 2000 that number had declined to about 20 percent. In 1985, just 22 percent of Americans reported having a close acquaintance or friend who was gay. That number jumped to 43 percent in 1994 and 56 percent in 2000. In just eight years, from 1992 to 2000, the proportion of Americans who reported having a family member who was gay or lesbian rose from 9 to 23 percent. It is clear that, as Chauncey writes, Americans were still quite ambivalent about homosexuality in general – with a “significant majority” still reporting “moral disapproval” by 2000 and 44 percent, in 2002, indicating that “homosexuality was an unacceptable ‘alternative lifestyle.’” Yet this moral disapproval did not seem to get in the way of broad support for civil rights laws protecting gay and lesbian people from discrimination. In 2002, 86 percent of respondents believed that gay people should be granted “equal rights in terms of job opportunities” (2005, pp. 48, 55).19
On marriage specifically, attitudes also have shifted dramatically. Solomon writes that “support of this cause was historically remarkable.” Pollsters had not “seen support grow like this, from 27 percent in 1996 to a solid majority in 2011, on any other social issue” (2014, p. 292). This was even the case in the decade or so between when marriage equality was recognized in Massachusetts and when it was legalized throughout the nation. While 59 percent of Americans had opposed marriage equality in 2004, just 10 years later 59 percent supported it (2014, p. 343). Solomon writes that this majority held in every region and that support had grown among Republicans and older Americans.
While we do not know much about the definitive reason for the shift in public opinion, and this is quite difficult to study effectively, many analysts and activists believe that some of it can be attributed to the fact that more gay, lesbian, and bisexual people have come out and are known to the people in their lives (Chauncey, 2005; Fetner, 2016). They also believe that some of the change in attitudes can be ascribed to the growing visibility of lesbian, gay, and bisexual people and their allies in pop culture. Historian and journalism professor Rodger Streitmatter, for instance, argues that we can look to popular culture to understand shifting attitudes about LGBTQ people: “The media have not merely reflected the American public’s shift to a more enlightened view of gay people, but they have been instrumental in propelling that change” (2009, p. 2; emphasis in original).
For instance, television has been highly important in bringing familiarity with (at least some kinds of) gay people to viewers who do not necessarily have any out gay friends or family members. Chauncey writes of a new TV visibility from 1989, when the popular drama thirtysomething caused controversy and lost advertisers when it hinted at same-sex sex with a quick shot of two men in bed (doing nothing overtly sexual); when Ellen DeGeneres came out as gay on her situation comedy in 1997; and when the hit NBC comedy Will & Grace aired in 1998, with its gay title character Will Truman. “It would be hard to overstate,” Chauncey writes, “how much this changed the dominant representation of gay people” (2005, p. 54).
The LGBTQ social movements of the past few decades have also opened up a space for celebrity activism on LGBTQ issues. Again, while we cannot show a direct causal link between celebrity involvement and a shift of public opinion, we can say that celebrities have been central in raising the visibility of the marriage movement and bringing it mainstream legitimacy. LGBT rights organizations mobilized celebrities nationally, with, for instance, the Human Rights Campaign’s Equality Rocks effort, which relied on “prominent musicians – both American and international – who support committed gay and lesbian couples getting married.”20 In 2012, as Washington state considered a ballot initiative to legalize same-sex marriage, straight Seattle rapper Macklemore wrote, performed, and released an extended video (with Ryan Lewis and featuring lesbian singer Mary Lambert) of his gay rights/marriage equality anthem, “Same Love.” Beyond its potential effects in Washington state, the song garnered extensive air play on pop and hip-hop radio stations around the country, reaching number 11 on the Billboard charts (Caulfield and Trust, 2013). Nominated for Song of the Year at the Grammys in January 2014, “Same Love” was performed as 34 same- and mixed-sex couples were legally married during the awards show (Rolling Stone, 2014). The song’s video, which features a joyous wedding celebration between two men, has attracted more than 173 million views on YouTube to date.21
Pro-marriage equality celebrities were particularly visible in California’s marriage fight. For instance, a number of high-profile celebrities teamed up to perform in Funny Or Die’s video “Prop 8 – The Musical” at the end of 2008, with a commentary on the biblical reading of same-sex relationships, the separation of church and state, and the economic impact of banning same-sex unions (TrueBlueMarjority, 2008). After the passage of Prop 8 and after it had been challenged in court, Academy Award-winning screenwriter and LGBTQ and marriage equality activist Dustin Lance Black wrote a play called 8, which dramatized the trial. The play was performed in New York and in Los Angeles, with star-studded casts. Demonstrating the reach of Prop 8 and the extent to which the marriage fight has also been waged in the cultural realm, 8 was viewed online about 900,000 times within the first year it was made available. It has since been staged hundreds of times around the world, in local theaters and by school groups (Yoshino, 2015).22
Athletes, too – especially straight, male athletes in high-profile team sports like football – became vocal advocates for marriage equality. For example, Chris Kluwe, then-punter for the Minnesota Vikings, and Brendon Ayanbadejo, then of the Baltimore Ravens, made short videos in support of marriage equality through their state-level marriage equality organizations.23 Ayanbadejo also wrote a piece for the Huffington Post called “Same sex marriages: What’s the big deal?” (2009). He used his own biography, as the son of a Black father and white mother whose marriage was not legally protected until the 1967 Supreme Court ruling that struck down interracial marriage bans, to make the case for the right of same-sex couples to wed. He also actively took advantage of the platform he had as a professional football player on a winning team to raise visibility for the case of marriage equality. After his team, the Baltimore Ravens, made it to the Super Bowl in January 2013, he worked to mobilize the new visibility this success offered for the cause of marriage equality (Bruni, 2013).
Marriage politics birthed a number of new organizations focused specifically on the issue – such as Freedom to Marry and AFER. It also came to shape – some would say dominate – the agenda of many of the longstanding professional LGBTQ civil rights organizations, like the Human Rights Campaign. A symbol of mainstream organizing, HRC seemed to focus almost exclusively on marriage for a number of years, even bringing in Chad Griffin – California’s marriage equality activist and AFER cofounder – as its president in 2012. HRC had long been criticized by movement activists on the Left. Its political agenda has been read by many as an effort to promote, in the words of one prolific HRC critic, “the equal treatment and civil rights of its mostly wealthy, mostly white, mostly straight-looking, mostly gay male major donor base” (Juro, 2004, n.p.; also see Vaid, 1995; Valentine, 2007; Ghaziani, 2008; Spade, 2011; Roberts, 2013). HRC took center stage in the marriage fight and, in the process, attracted a lot of criticism for the way its marriage campaigns seemed to privilege the visibility, experience, and demands of white, gender conforming, well-off gay men and their families. As writer Derrick Clifton (2013) noted critically, HRC “has been lent high legitimacy as the organization representing the entire movement” and, in this role, “has thrown almost the full weight of their strategy, fundraising moolah and public platform on the issue of marriage equality” (n.p.).
Many critics have framed the centrality of marriage in the political agenda of large, professionalized LGBTQ organizations as an effect of privilege that ignores substantial issues faced by less privileged LGBTQ people or that simply concentrates movement resources on an issue that disproportionately benefits privileged people. They view marriage as displacing a focus on issues such as the racism experienced by and perpetuated by LGBTQ communities, homelessness, and transgender justice (for discussion, see, e.g., Stein, 2013). Some also view the centrality of marriage to the mainstream LGBTQ movement as evidence and a symptom of the fact that the movement has become dominated by a few large LGBT civil rights groups that “have become the lobbying, legal, and public relations firms for an increasingly narrow gay, moneyed elite” – an “Equality, Inc.” (Duggan, 2003, p. 45). This is both a concern about the substance of the movement’s focus on marriage and a critique of the process of inclusion and decision-making around the national agenda, which many see as now being too top-down and dominated by a few players like HRC.24
On the limitations on marriage itself, law professor Katherine Franke writes about the complexity of the race politics of the marriage movement. One way in which the movement may have benefited the race/class-privileged is that the backlash against gains in LGBTQ rights disproportionately falls on LGBTQ people who face multiple forms of marginality. The marriage win, she argues, comes with a “price tag”:
Gay people in Mississippi, Alabama, Georgia, Louisiana, Idaho, and Montana reported an increase in hostility in their communities that negatively tracked the success of the marriage equality movement nationwide. In their churches, workplaces, and at family dinners they often bore painful witness to religious conservatives’ need to hold the line on marriage equality while the rest of the nation went to hell. This climate forced many gay and lesbian people, particularly people of color, even deeper into the closet. (2015, p. 191)
Wins on marriage, then, are not race-, class-, or location-neutral. Urban, white, gay, middle-class men are not, Franke argues, those who tend to suffer the backlash and pay the cost of the marriage movement’s victories.
Others, however, have argued that to reject the institution of marriage is an expression of privilege. Rofes argues that not all LGBTQ people can afford to turn away the state-given benefits that come with marriage: “Smug middle-class gay activists have the economic and social capital that allow them to hold marriage as a distance, but many poor and working-class LGBT couples understand the legal, economic, and social benefits which would accrue to them once same-sex marriage is won” (2002, p. 151). There is also the finding from recent social science that provides complexity to the argument that marriage politics are just a reflection of privileged gay male interests: the finding that, relative to men, women enter same-sex unions in fairly substantial disproportionate numbers: “Marriage has gendered meanings, and the LGBT movement’s campaign for marriage rights resonated especially with women” (Ghaziani et al., 2016, p. 176). Just as it did a generation earlier, before there was a viable marriage movement in the US or elsewhere, so marriage equality raises the larger questions of who benefits from LGBTQ organizing, who speaks for diverse LGBTQ communities, and what role the state should play in movements for social change.
When the nationwide marriage win was in sight, activists, writers, and a number of the mainstream LGBTQ civil rights groups began to ask: what comes next (see, e.g., Montgomery, 2015)? The HRC, for instance, published a lengthy report called Beyond Marriage Equality, which made a case for a focus on broad nondiscrimination laws concerning employment, housing, education, and public accommodations, among other domains. The report highlighted that only 18 states plus the District of Columbia have laws that explicitly prohibit public and private employment discrimination on the basis of sexual orientation and gender identity. Three additional states bar discrimination by sexual orientation but do not include gender identity as a category to protect transgender employees (HRC, 2015, p. 31).25 There is, as of yet, no clear federal protection against workplace discrimination (Wolf, 2017). There has been some recent attention paid to the fact that LGBTQ nondiscrimination laws are not just a feature of large or coastal cities. One March 2017 analysis found that of the approximately 50 towns and cities that adopted nondiscrimination laws since 2015, all were in states that handed Donald Trump a victory in November 2016, and more than half had populations of 35,000 people or fewer (Stein, 2017).
Others, looking to a time when the marriage fight would be over, added that transgender rights should be a new priority in the broader LGBTQ movement (see, e.g., Capehart, 2015; Yoshino, 2015). Some on the Left called for the continued advocacy of a more liberationist agenda, one that would not rely on the state for the granting of justice and would celebrate difference and queerness, specifically (e.g., Stein, 2015). Historian Timothy Stewart-Winter (2015) wrote in the New York Times that queer people should leverage their historical role as outsiders for further social change – like trans rights, support for homeless youth, and Black Lives Matter – rather than abandoning this status once the marriage door had been fully opened: “Betraying our history – forgetting what it has meant to be gay – would be a price too high to pay” (n.p.). Some have urged, simply, that the marriage victory does not mean it is time to pack up the movement and go home to new spouses. Signorile argues that activists and optimistic community members suffered from “victory blindness”: “the dangerous illusion that we’ve almost won” (2015, p. 1).
It remains to be seen where the LGBTQ civil rights movement will next put its energy and resources and how it will connect with the more radical, liberationist strand of the movement or with groups that focus specifically on intersectional identities. We can see, however, that marriage politics are exemplary of the longstanding tensions between liberationists and assimilationists (Ghaziani et al., 2016) and of the longstanding politics of privilege.
Marriage is a necessary civil rights gain. You cannot be free if you do not have the self-determination to love and partner and build a family. There is also some recent research that shows that the very existence of marriage equality laws may bring other societal benefits, like the reduction in suicide attempts among young people (Segal, 2017). But many LGBTQ critics of marriage as an institution and a strategy have noted that the win on marriage comes with costs. As Ettelbrick (1989), Warner (1999), and others have argued for decades, handing over regulation of intimate relationships to the state brings constraints.
In her articulation of this argument about state regulation, Franke writes that marriage carries with it “a new conception of new freedom and equality through a form of state licensure” (2015, p. 11). Divorce, for instance, is a state-regulated form of ending a romantic relationship (also see Bernstein, 2015). Married couples are not free to end their relationships any way they want. The state takes an interest in how they part. So, too, marriage also normalizes some kinds of relationships and pathologizes – even criminalizes – others. Non-monogamous marriages, for instance, run afoul of adultery laws that might make them illegal (Rhode, 2016). For partners who want to build alternative forms of intimacy not necessarily grounded in monogamy, marriage might bring new forms of criminality and marginalization. “[W]hen you marry,” Franke argues, “the state acquires a legal interest in your relationship. Cloaking freedom in state regulation – as the freedom to marry surely does – is a curious freedom indeed, for this freedom comes with its own strict rules” (2015, p. 9).