Claiming Equal Dignity

Guest Blogger

For the Balkinization symposium on William N. Eskridge, Jr., and Christopher Riano, Marriage Equality: From Outlaws to In-Laws (Yale University Press, 2020).

Stuart F. Delery

Marriage Equality by William Eskridge and Christopher Riano arrives billed as a comprehensive history of the fight for same-sex marriage, but it actually goes further to explore the broader campaign for LGBTQ+ equality over the past half century. The book tells a great story, as much of a page-turner as you will find in an academic study. It weaves compelling individual portraits together with deep analysis of judicial doctrine, social movements, litigation strategy, and legislative debates. Although I thought I was fairly familiar with this history (and I play small parts in several chapters in the story), I learned a tremendous amount.  

 Many aspects of Marriage Equality are worthy of comment, but to me the core of the book is its careful account of the critical role played by ordinary LGBTQ+ people in communities across the country. The authors never lose sight of how choices by individuals and couples to live their lives openly and with dignity, often in the face of personal and public hostility, ultimately compelled the Supreme Court to recognize their legal right to be treated on equal terms by their government.

This recognition was not simply bequeathed by a benevolent judiciary. In the words of the Supreme Court in Obergefell, LGBTQ+ people themselves demanded to “vindicate their own direct, personal stake in our basic charter.” Eskridge and Riano draw a direct connection between the Supreme Court’s understanding of dignity and the grassroots articulation and embodiment of that principle, starting with how early advocate Frank Kameny and the Mattachine Society framed their mission in the early 1960s: “to secure for the homosexual the right, as a human being, to develop and achieve his full potential and dignity, and the right, as a citizen, to make his maximum contribution to the society in which he lives.”

The authors carefully chronicle the sea change in public attitudes in the 50 years between the declaration by Frank Kameny and the victories of Edie Windsor and Jim Obergefell. The AIDS crisis in the 1980s “revealed that gay relationships could engender the same kind of selfless, till-death-do-us-part devotion as traditional marriages.” Lawyers and other advocates recognized that it was critical to have a national campaign to educate and persuade the public before launching court challenges. Political debates about marriage in state legislatures highlighted the experiences of hundreds of same-sex couples and their families. Civil union and domestic partnership benefit programs, and later early same-sex marriages in Massachusetts, California and other states, showed the broader public that committed same-sex couples would not cause the sky to fall. Eskridge and Riano conclude that this “equality practice” and campaign of public education “called for straight people to see gay and lesbian couples as committed to serious, long-term relationships, often with children, that deserved respect and support for the same reason that straight marriages deserved respect and support.” And this effort was successful. It should be noted that the authors thoroughly document the leading role played in the years-long effort by lesbian and transgender people, the importance of which cannot be overstated.

One critical factor undergirding our progress has always been the willingness of countless lesbians, gay men, and transgender individuals to be open about their lives. Once people can say that they know a gay, lesbian, or transgender person, they are much more likely to support our rights. This is true of family members, neighbors, co-workers, legislators, judges, and Executive Branch officials. As Eskridge and Riano put it, “[i]t was harder to be angry about gay marriage when your barber, your neighbor, your city council member, your aunt, your kid’s teacher, or your daughter was gay-partnered.”

The lived experience of LGBTQ+ couples and families ultimately became impossible for the government to deny. As a Department of Justice brief said on behalf of the United States, “same-sex couples form deeply committed relationships that bear the hallmarks of their neighbors’ opposite-sex marriages: they establish homes and lives together, support each other financially, share the joys and burdens of raising children, and provide care through illness and comfort at the moment of death.” Once courts were convinced of this, the result in the marriage cases was hard to avoid. The Obergefell Court made a point of saying that “[t]he petitioners’ stories make clear the urgency of the issue they present to the Court.” But the Tenth Circuit may have best captured the dynamic when it said (quoting the district court in Utah), “it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.” The victory was won by all of the LGBTQ+ people who shared the mundane ups and downs of their lives with co-workers just as straight people do; by every young person who came out to parents and family, often with painful consequences for personal relationships; and by every couple that refused to accept an inferior status from their government.

With the Supreme Court in transition, the LGBTQ+ community is understandably concerned about the path forward. Recent progress, while real, is also young and therefore in some ways fragile. Courts can change decisions. The White House was lit up in rainbow colors the night of the Obergefell decision just over five years ago, but as we have seen the federal government will not always be an ally. Eskridge and Riano have a lesson for us now: perhaps the best protection LGBTQ+ people have against judicial backsliding is to continue to claim equal dignity by living our lives day in and day out consistent with the rights we know the Constitution guarantees to us. Just as doing so was key to the victories in the first place. 

Finally, in light of the passing of Justice Ruth Bader Ginsburg, it is worth noting that Eskridge and Riano detail the role that she played in securing marriage equality and in LGBTQ+ rights more generally. Justice Ginsburg did not write the landmark LGBTQ+ rights opinions, but she was in the majority in each case and her mark was unmistakable. For example, in the Windsor argument, the authors note, Justice Ginsburg flagged that “DOMA’s pervasive regime of excluded benefits and duties created a new institution, what Ginsburg called ‘skim milk marriages,’ which differed from the full-blown marriages available to most couples.” Justice Kennedy’s ensuing opinion for the Court echoed this view and found intolerable the federal government’s decision to relegate same-sex couples to “second-class marriages for purposes of federal law.” In the Obergefell argument, Justice Ginsburg pointed out that the institution of marriage had already changed substantially over time. The authors also report that Justice Ginsburg urged Justice Kennedy to add the equal protection element to the Court’s reasoning, fusing the concepts of liberty and equality to guarantee same-sex couples the right to marry. More generally, Eskridge and Riano explicitly ground marriage equality for LGBTQ+ couples in Justice Ginsburg’s “constitutional vision for the family” based on gender equality and heightened equal protection scrutiny for sex-based classifications. The great work of Justice Ginsburg’s life was a key building block for LGBTQ+ rights and “equal dignity.”

From the beginning of the Nation, there has been a contradiction between our founding ideals of freedom and equality and the reality for too many. A common theme across our history has been the struggle to lay claim to the Nation’s promise; “[a]s the Constitution endures,” the Court said in Lawrence, “persons in every generation can invoke its principles in their own search for greater freedom.” I remember vividly first reading Simple Justice, Richard Kluger’s magisterial account of the road to Brown v. Board of Education, in college. It galvanized my thinking about how much work remained to achieve equality, and also about what the law and lawyers could and should do to work towards that goal. Eskridge and Riano have produced a study of similar scope, one that should be both canonical for the history of the LGBTQ+ community and inspiring for advocates for greater equality of all kinds in our society.

Stuart F. Delery is a litigation partner in the Washington, D.C office of Gibson, Dunn & Crutcher LLP and a Visiting Lecturer in Law at Yale Law School.  He can be reached at SDelery@gibsondunn.com.