Celebrating Pride Month: A History of The Fight Over Marriage Equality in The United States
June is Pride Month, celebrating LGBTQI+ identity and culture. The fight for dignity and equality is ongoing. Nowhere is that clearer than in the history of the battle over marriage equality.
Same-sex couples have long been in relationships that functioned informally as marriages. Society formally woke up to it only in the 1970s. In 1972, the U.S. Supreme Court declined to consider Baker v. Nelson, "for want of a substantial federal question," a dark spot in marriage equality litigation.
LGBTQI+ legal advocates organized challenges to restrictions on marriage rights, mostly in the courts but also in legislatures and referendums.
In Baehr v. Miike, the Hawaii Supreme Court in 1993 remanded a case to consider whether denying marriage rights "furthers compelling state interests and is narrowly drawn to avoid unnecessary abridgments of constitutional rights." Congress, in response, passed the Defense of Marriage Act (DOMA), denying federal recognition of same-sex marriages. Dozens of states began banning same-sex marriage in the intervening years between the passage of DOMA and the legalization of same-sex marriage in 2015.
In 2003, the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health for marriage equality as a right provided under the Massachusetts Constitution, becoming the first United States jurisdiction to recognize same-sex marriages.
In February and March 2004, city officials in San Francisco issued marriage licenses before being ordered to stop by the California Supreme Court. Similar public actions were taken in 4 other localities that year.
In 2008, the Supreme Court of California legalized same-sex marriage in California, but opponents placed a state constitutional amendment on the ballot known as Proposition 8. It passed in November 2008, ending same-sex marriages.
Advocates were not deterred.
Between 2008 and 2009, Connecticut and Iowa recognized same-sex marriage in the Courts.
Marriage equality advocates did not limit their work to the Courts. They also had success in state legislatures and voter referendums. Between 2009 and 2013, legislatures in 4 states and the District of Columbia enacted legislation legalizing same-sex marriage. In 2012, voters approved the legalization of same-sex marriage in 4 states.
The fight for marriage equality got a major and first boost from the United States Supreme Court in 2013. In its landmark ruling in United States v. Windsor, the Court ruled Section 3 of DOMA was unconstitutional "as a deprivation of the equal liberty ... protected by the Fifth Amendment."`
Unfortunately, the Supreme Court also dismissed Perry v. Schwarzenegger, which ruled that California's Proposition 8 was unconstitutional, for lack of standing in 2013.
Between 2013 and 2015, 14 courts recognized same sex marriage and 5 states passed legislation doing so.
In 2014, the U.S. Supreme Court declined to take action on five cases from the Fourth, Seventh, and Tenth Circuits, allowing the circuit court decisions striking down marriage bans to stand. In doing so, it did not make a major ruling on the substance of the marriage equality issue.
While some cases were distinct wins for marriage equality activists, opponents did have some successes. The court in Louisiana ruled against same-sex couples in Robicheaux v. Caldwell, upholding Louisiana's ban on same-sex marriage - the first decision of a federal court since the U.S. Supreme Court ruling in Windsor to uphold the constitutionality of a state ban on same-sex marriage.
In 2014, the Court of Appeals for the Sixth Circuit upheld the same-sex marriage bans in 4 states. The same-sex couples in all these cases asked the U.S. Supreme Court to review them, which the Supreme Court did. The cases were: Obergefell v. Hodges (Ohio), Tanco v. Haslam (Tennessee), DeBoer v. Snyder (Michigan), and Bourke v. Beshear (Kentucky).
The Court decided the case on June 26, 2015 in a 5-4 decision. Obergefell requires all states to recognize same-sex marriage. The Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
The Court listed four distinct reasons why the fundamental right to marry applies to same-sex couples. First, "the right to personal choice regarding marriage is inherent in the concept of individual autonomy." Second, "the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”. Third, the fundamental right to marry "safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education." Fourth, and lastly, "marriage is a keystone of our social order," and "[t]here is no difference between same- and opposite-sex couples with respect to this principle."
The fight for marriage equality has been long and hard fought. Litigation still persists on the fringes over religious liberty objections to recognizing same-sex marriage and placing married non-biological parents on their children’s birth certificates, among other issues. What is clear is that we have a lot to be proud of as we take stock this Pride Month.