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How Gay Marriage Became a Constitutional Right
The untold story of the improbable campaign that finally tipped the U.S. Supreme Court.
Bruno Domingos / Reuters
MOLLY BALL JUL 1, 2015
On May 18, 1970, Jack Baker and Michael McConnell walked into a courthouse in Minneapolis, paid $10, and applied for a marriage license. The county clerk, Gerald Nelson, refused to give it to them. Obviously, he told them, marriage was for people of the opposite sex; it was silly to think otherwise.
Baker, a law student, didn’t agree. He and McConnell, a librarian, had met at a Halloween party in Oklahoma in 1966, shortly after Baker was pushed out of the Air Force for his sexuality. From the beginning, the men were committed to one another. In 1967, Baker proposed that they move in together. McConnell replied that he wanted to get married—really, legally married. The idea struck even Baker as odd at first, but he promised to find a way and decided to go to law school to figure it out.
When the clerk rejected Baker and McConnell’s application, they sued in state court. Nothing in the Minnesota marriage statute, Baker noted, mentioned gender. And even if it did, he argued, limiting marriage to opposite-sex couples would constitute unconstitutional discrimination on the basis of sex, violating both the due process and equal protection clauses of the Fourteenth Amendment. He likened the situation to that of interracial marriage, which the Supreme Court had found unconstitutional in 1967, in Loving v. Virginia.
The trial court dismissed Baker’s claim. The Minnesota Supreme Court upheld that dismissal, in an opinion that cited the dictionary definition of marriage and contended, “The institution of marriage as a union of man and woman…is as old as the book of Genesis.” Finally, in 1972, Baker appealed to the U.S. Supreme Court. It refused to hear the case, rejecting it with a single sentence: “The appeal is dismissed for want of a substantial federal question.” The idea that people of the same sex might have a constitutional right to get married, the dismissal suggested, was too absurd even to consider.
Last week, the high court reversed itself and declared that gays could marry nationwide. “Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions,” Justice Anthony Kennedy wrote in his sweeping decision in Obergefell v. Hodges. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
A New Right Grounded in the Long History of Marriage
The plaintiffs’ arguments in Obergefell were strikingly similar to those Baker made back in the 1970s. And the Constitution has not changed since Baker made his challenge (save for the ratification of the Twenty-Seventh Amendment, on congressional salaries). But the high court’s view of the legitimacy and constitutionality of same-sex marriage changed radically: In the span of 43 years, the notion had gone from ridiculous to constitutionally mandated. How did that happen?
I put the question to Mary Bonauto, who argued Obergefell before the Supreme Court in April. A Boston-based staff lawyer for Gay and Lesbian Advocates and Defenders, Bonauto won the Massachusetts case that made the state the first to allow gay couples to wed in 2004. In 1971, she noted, sodomy was a crime in nearly every state, gays were routinely persecuted and barred from public and private employment, and homosexuality was classified as a mental illness. “We were just as right then as we are now,” she said. “But there was a complete lack of understanding of the existence and common humanity of gay people.”
What changed, in other words, wasn’t the Constitution—it was the country. And what changed the country was a movement.
Friday’s decision wasn’t solely or even primarily the work of the lawyers and plaintiffs who brought the case. It was the product of the decades of activism that made the idea of gay marriage seem plausible, desirable, and right. By now, it has become a political cliché to wonder at how quickly public opinion has changed on gay marriage in recent years—support for “marriages between homosexuals,” measured at 60 percent this year, was just 27 percent when Gallup first asked the question in 1996. But that didn’t happen organically.
Supporters of gay marriage rally in front of the U.S. Supreme Court in the days before the Obergefell v. Hodges decision. (Joshua Roberts / Reuters)
The fight for gay marriage was, above all, a political campaign—a decades-long effort to win over the American public and, in turn, the court. It was a campaign with no fixed election day, focused on an electorate of nine people. But what it achieved was remarkable: not just a Supreme Court decision but a revolution in the way America sees its gay citizens. “It’s a virtuous cycle,” Andrew Sullivan, the author and blogger whose 1989 essay on gay marriage for The New Republic gave the idea political currency, told me. “The more we get married, the more normal we seem. And the more normal we seem, the more human we seem, the more our equality seems obviously important.”
Some gay activists harbor a certain amount of nostalgia for the days when their movement was seen as radical, deviant, extreme. Today, when many Americans think of gay people, they may think of that nice couple in the next apartment, or the family in the next pew at church, or their fellow parents in the PTA. (Baker and McConnell are still together, living a quiet life as retirees in Minneapolis.) This normalization will continue to reverberate as gays and lesbians push for more rights—the right not to be discriminated against, for example. The gay-marriage revolution didn’t end when the Supreme Court ruled.