Julie Goodrige. Jack Baker. Edie Winsdor. Mike McDonnell. April Deboeur. Jayne Rowse. Few recognize these names. They are just a few of the people whose actions led to last year’s landmark U.S. Supreme Court decision Obergefell v. Hodges, which struck down bans on same-sex marriage nationwide.
William Eskridge Jr., the John A. Garver Professor of Jurisprudence at Yale Law School, told the stories of those names and the history of the fight for marriage equality at the 58th Henry J. Miller Distinguished Lecture Series.
“It was a long struggle,” Eskridge said, starting in 1967, the year Loving v. Virginia overturned restrictions on interracial marriage. The Supreme Court determined that the right to marry was fundamental, and thus couldn’t be restricted based on race. That same year, a man named Jack Baker proposed to Mike McConnell. McConnell challenged him to get the right to marry him. So Baker enrolled in law school to figure out a way to get same-sex marriage legalized. He eventually sued, and lost “on every level of the courts,” Eskridge said.
All of these earlier attempts at marriage equality failed for many reasons, Eskridge said. In the '70s, it was too novel a notion that same-sex couples should marry and the “traditional” model of marriage was deeply gendered — being a subservient housewife and mother was chief among the clearly defined roles. Additionally, stereotypes cast the LGBT community as anti-family and incapable of commitment.
The AIDS epidemic of the early 1980s further fed into the stereotype that gay men were diseased and promiscuous and provoked anti-gay backlashes. However, the publicity of this epidemic also had another effect. It forced many gay or bisexual men out of the closet and also “recast partners [of gay men] into bereavement and caregiving roles, which were family roles,” Eskridge said. That fueled interest in domestic partnerships and inspired in-your-face activism.
The Danish Registered Partners Act in Denmark in 1989 “whetted the appetite of many couples for full marriage rights,” said Eskridge, who added that by the 1990s, it was “a social fact that there were a lot of gay and lesbian couples, and many of them had children.”
Yet, another pushback came in the form of the 1996 Defense of Marriage Act, passed by a bipartisan Congress and signed into law by President Bill Clinton, who affirmed his role as a defender of “traditional” marriage. Irony in that statement aside, this seemingly unified front against same-sex marriage was a blow to the LGBT community, but they kept pushing, Eskridge said.
A Civil Unions Law was passed in Vermont in 2000 with support from both Democrats and Republicans. “As DOMA was a bipartisan rebuke,” said Eskridge, “so the Civil Unions Law was a bipartisan nudge.”
The years following showed a slow but steady increase in support for same-sex marriage, especially after President Barack Obama took office in 2008. The transformation of American lifestyles and changes in family structures—cohabitation and divorce increased, as well as the number of women working outside of the home—contributed to a shift in changing views on marriage. Obama came out in support for marriage equality in 2012. And, Eskridge said many religions had begun to change their stances, becoming at least tolerant of the LGBT community, if not fully accepting.
In 2013, Windsor v. United States struck down DOMA. Finally, on June 26, 2015, the Supreme Court’s opinion in Obergefell v. Hodges, of which April Deboeur and Jayne Rowse were plaintiffs, declared that bans on same-sex marriage were unconstitutional. Ironically, Justice Anthony Kennedy, who wrote the majority opinion, made many of the same arguments that were made in Jack Baker’s case more than 40 years ago.
What’s next for the LGBT community? “I believe that the Equal Protection Clause [of the 14th Amendment] will be used to sweep away most, if not all, explicit discriminations based on sexual orientation and gender identity,” Eskridge said.
However, there is still need for proactive anti-discrimination statutes, he said. In Eskridge’s opinion, religions will continue to change and adapt to same-sex marriage. Though he acknowledges there may be polarization between and within religions concerning support for marriage equality and other LGBT equality issues, he said, “For now, churches are building bridges.”
The Henry J. Miller Distinguished Lecture Series is supported by the Charles Loridans Foundation Inc. and named for Henry J. Miller, a partner in the law firm of Alston & Bird for more than 50 years. Miller’s legacy continues to live in his role to generations of Atlanta’s professional community.