digitalcommons.nyls.edu Faculty Scholarship Other Publications 2014 The rF eedom to Marry: Politics and Law in 2014 and Beyond Ari Ezra Waldman New York Law School Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs Part of the Family Law Commons, Law and Gender Commons, Sexuality and the Law Commons, and the Supreme Court of the United States Commons Recommended Citation Human Rights, Vol. 40, Issue 2 (July 2014), pp. 19-22 This Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Other Publications by an authorized administrator of DigitalCommons@NYLS. +(,121/,1( Citation: Ari Ezra Waldman, The Freedom to Marry: Politics and Law in 2014 and beyond, 40 Hum. Rts. 19 (2014) Provided by: New York Law School<br>The Mendik Library Content downloaded/printed from HeinOnline Sat Jan 13 20:23:55 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device The Freedom to Marry: Politics and Law in 2014 and Beyond By Ari Ezra Waldman une 26, 2013, was “marriage Court chose to hear their case along- transgender (LGBT) Americans in day” at the Supreme Court. On side the challenge to California’s the awkward position of needing Jthat day, the Court held the Proposition 8. That we channeled to know what state they’re in before Defense of Marriage Act (DOMA) extra special attention to the Court knowing if they are equal under the unconstitutional. This was one day that day seems unsurprising. law. It also leaves equality open to after a different majority rejected Then came the decisions. continuous attack as we move from the appeal in Hollingsworth v. Perry, The Court punted in Perry, state to state. Therefore, a national the challenge to California’s Prop relying on lack of standing and litigation strategy, with Windsor at 8, ending that state’s ive-year aber- refusing to address the underlying its core, will be essential to our ulti- ration from marriage equality. A constitutional issue of the legality mate victory. status update reporting the DOMA of sexual orientation–based mar- news on ScotusBlog’s eponymous riage discrimination. But although State Constitutional Litigation Facebook page got 1,119 “likes.” only a narrow majority declared A decade ago, many of the suc- The website’s live blog had thou- DOMA Section 3 unconstitu- cessful marriage equality lawsuits sands of participants and, even tional, Justice Anthony Kennedy’s focused on state constitutions. before 9:00 a.m., was overlowing decision in United States v. Wind- Baehr v. Lewin (later recaptioned with questions in the queue. For a sor has inspired an avalanche of Baehr v. Miike) concluded that day, at least, the focus of the gay federal litigation from Utah to Hawaii’s constitution required that rights movement was squarely on New Jersey and from Virginia to marriage discrimination pass strict the U.S. Supreme Court. Texas to do what Perry was sup- scrutiny. Baker v. Vermont held that That singular focus was the result posed to have done: overturn bans denying marriage licenses to gays of several factors: DOMA, a federal on marriage equality. Windsor— and lesbians violated Vermont’s law that denied federal recognition not Perry—is blazing the path common beneits clause. And, to lawful same-sex marriages in the toward the freedom to marry in of course, Goodridge v. Depart- states, required a federal solution, the states. Post-Windsor decisions ment of Health mandated marriage whether legislative repeal or judicial in New Jersey, New Mexico, Ohio, equality under Massachusetts’s vacation. By 2012, the latter looked Utah, Oklahoma, Texas, Michi- constitution. Later, Connecticut more likely. A repeal act failed to gan, Idaho, Arkansas, Oregon, and and Iowa would afirm equal- gain much traction in Congress while Pennsylvania suggest that the path ity through their own state courts several lawsuits were successfully chal- may start outside of Washington, and under their own constitu- lenging DOMA’s constitutionality in D.C., but may eventually lead back tions. This generation of marriage the federal courts. Mary Bonauto at to the Supreme Court. cases had to be state based; some the Gay and Lesbian Advocates and I would like to argue that the of them were iled before Lawrence Defenders challenged DOMA on extraordinary strides forward in the v. Texas—namely, when Bowers v. behalf of Nancy Gill in Massachu- marriage equality ight, in particu- Hardwick was still good law. Bow- setts and won the irst district court lar, and the gay rights movement, ers not only gave conservatives case to strike down the law. Lambda in general, are the products of a license to discriminate against Legal’s Tara Borelli won a sweep- multipronged strategy of over- gays, but also made the federal ing victory in California on behalf of whelming force: in state courts courts hostile places for gay rights, Karen Golinski. Roberta Kaplan, a and state capitals, in federal courts in general. Plus, marriage equality partner at New York’s Paul Weiss Rif- and in Washington. One unfortu- in the federal courts was suppos- kind Warton & Garrison, LLP, and nate byproduct of that strategy is edly hampered by Baker v. Nelson, James Esseks, director of the ACLU that it temporarily requires piece- a 1971 Minnesota gay marriage LGBT Project, challenged DOMA on meal progress on the road to victory, case rejected by the Supreme Court behalf of Edie Windsor. The Supreme leaving lesbian, gay, bisexual, and for lack of a federal question. Vol. 40, No. 2 19 humanrights But the Court’s decision in Windsor gave state-based marriage equality litigation a radically new look. Before Windsor, successful suits challenging marriage discrimination in Massachusetts, Connecticut, and Iowa included the same basic argument: Taking similarly situated individuals—those who want to marry the person they love—and treating them differently based on their sexual orientations violated equal protection guaranteed by state constitutions. Windsor helped state advocates make that argument under state law in two ways. First, the case made it easier to challenge the separate-and-unequal MAGES institution of civil unions. Windsor Peg Welch, center left, and her wife Delma Welch gather with others AP I said that legally married same-sex BY at a gay marriage rally in Harrisburg, Pa. couples have to be granted access HOTO to the multitude of federal beneits P that attend marriage; the case turned “skim milk marriages” into real ones. became the 17th marriage equality movement that requires pub- But those in civil unions or domes- state after a unanimous decision by lic education, engagement on the tic partnerships are not, technically, its supreme court in December 2013. ground, and changing hearts and “married.” They fall outside of New Mexico never explicitly banned minds. You cannot achieve those Windsor’s orbit of fairness. As such, gays from marrying; rather, it had goals while remaining cloistered the inherent injustice of the separate- layered marriage laws that, taken inside a courtroom, federal or and-unequal unions were put into together, made same-sex marriage state. And yet, pursuing a legisla- stark relief and it allowed advocates, impossible. The plaintiffs in New tive strategy to achieve marriage like those in New Jersey, to argue Mexico argued that they are just like equality at the state level raises the that the state constitution’s guaran- opposite-sex couples: committed, in specter of political horse trading tee of equality demanded including love, and desirous of the state recog- and hollow victories. gays and lesbians in the institution of nition and beneits associated with Many of our victories have been marriage. Civil unions, despite their marriage. They, therefore, should be in the legislative sphere, but at state extensive attendant state beneits, treated equally. The state supreme capitals, not in Washington, D.C., would never be equal to marriage, court agreed and cited Windsor as Delaware, Hawaii, Illinois, Minne- especially now that, after Windsor, evidence of that inherent equality sota, New Hampshire, New York, same-sex marriages—and mar- under the law. Windsor may not have Rhode Island, and Washington riages alone—received all the same explicitly decided the issue of the State ushered in eras of marriage beneits as opposite-sex marriages. constitutionality of state marriage equality through legislative vote. This argument could have applied discrimination, but it was a state- Two of those were afirmed by to the other states that permitted ment of LGBT equality and dignity statewide plebiscites, which is how gays and lesbians to enter into civil and it eviscerated the remaining Maine joined the club. unions but denied them the honor- arguments that advocates of dis- Take, for example, what hap- iic of marriage. But, as we have seen, crimination had been using. As such, pened in Illinois. That state’s the marriage ights in those states— it has become the strongest weapon governor signed a marriage equal- Oregon, Nevada, Colorado, and in any LGBT advocate’s arsenal. ity bill in November 2013, but it Wisconsin—are part of the lood of had not yet taken effect when, on post-Windsor federal cases. State Political Activism February 21, 2014, a federal judge Second, the substance of Justice State-based litigation is only part declared the state’s ban on gays Kennedy’s Windsor opinion gave of the story.