THIS NATION'S FOUNDING MANIFESTO, the Declaration of Independence, declared “all men” to be “created equal” and latent in these revolutionary words were the civil rights issues — most glaringly slavery and the unequal status of women — that would dominate the next centuries of the American Republic. Not until near the end of one of the bloodiest civil wars ever fought did Congress approve the 13th amendment, abolishing slavery. Abigail Adams had written to her husband, John, that “if […] attention is not paid to the ladies, we are determined to foment a rebellion and we will not hold ourselves bound by any laws in which we have no voice or representation,” but not until the 20th century would suffrage be extended to adult women in the United States. The quest for equal treatment of minorities and women continues to the present day — a promise elevated to the level of constitutional guarantee by the post–Civil War enactment of the 14th Amendment, commanding that no state “deny to any person within its jurisdiction the equal protection of the laws.”
For the moment, ground zero in the battle for equality has moved to the issue of gay and lesbian marriage. The United States Supreme Court has begun hearings on two cases that squarely confront the issue of the equal right of gays and lesbians to wed: in Hollingsworth v. Perry, the Court will consider a challenge to the 2008 amendment to the California Constitution known as Proposition 8, which eliminated the right of same-sex couples to marry in California, and in United States v. Windsor, a challenge to the Defense of Marriage Act (DOMA), a federal law enacted in 1996 that authorized states not to recognize gay marriages and defined marriage for all federal purposes as the union of one man and one woman.
Two recent books provide a framework for appreciating the history behind this historic moment in the nation’s highest court. Michael J. Klarman’s "From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage" provides a detailed history of the gay rights movement up to the eve of the Hollingwsorth and Windsor cases, whereas Dale Carpenter’s "Flagrant Conduct: The Story of Lawrence v. Texas" presents a micro-history of a Texas case that against all odds reached the United States Supreme Court and resulted in the constitutional abolition of anti-sodomy laws.
Both books recount the world of oppression that prevailed for gays and lesbians well into the latter part of the 20th century, and Klarman does so in shocking detail. As of 1960, every state criminalized even private, consensual sex between same-sex adult partners. Arrests of homosexual men for engaging in same-sex relationships numbered in the thousands annually. Local vice squads shared such arrest information with the FBI, and, according to Klarman, even “friendship with a known homosexual could subject one to an FBI investigation.” Being gay was declared by President Eisenhower to be a “sexual perversion” that was “sufficient grounds for exclusion from federal employment.” Homosexual acts were deemed unprofessional conduct sufficient to deny or revoke licenses for doctors, lawyers, or nurses.” Professors were expelled from universities for alleged homosexual acts. The medical profession categorized homosexuality as a disease, and even the ACLU in 1957 referred to homosexuality as “socially heretical or deviant.” Gays and lesbians lived in the closet lest they fall prey to any of these life-crushing prohibitions.
If there is an equivalent in the gay rights movement to the Boston Tea Party, it would be the riot in Greenwich Village at the Stonewall Inn in 1969. A routine sweep by the New York police of this gay bar turned into a violent confrontation in reaction to the officer’s treatment of bar patrons. Over the next several days, crowds assembled in Greenwich to protest police harassment of gay bars, and “similar demonstrations quickly spread to other cities.” As reported by Klarman, “Stonewall seemed to crystalize the incipient gay activism of the 1960s.”
Not long after Stonewall, same-sex couples first attempted to get marriage licenses, leading immediately to legal challenges to their right to marry. According to Klarman, “the judges who decided these early gay marriage cases did not simply reject the plaintiffs’ arguments, they treated them with derision.” At the same time, challenges to the state laws prohibiting sodomy were working their way through the courts. In 1986, the United States Supreme Court faced this issue in Bowers v. Hardwick, and in a 5-to-4 decision ruled in favor of the constitutionality of such laws. The majority opinion, written by Justice Byron White, even went so far as to describe the argument for a constitutional right to engage in homosexual acts as “facetious,” and, in a concurring opinion, Chief Justice Warren Burger cited the 18th century legal English legal commentator, William Blackstone, for the proposition that homosexual relations were a “deeper malignancy” than rape. To say, as Klarman does, “the gay community was devastated by Bowers” would hardly be an understatement.
And yet, but 17 years later, in 2003 the Supreme Court in Lawrence v. Texas would reconsider Bowers and overrule it. How the Supreme Court went from deriding a constitutional right to engage in homosexual sex as “facetious” in Bowers to a majority opinion endorsing it as fundamental to the constitution is the subject of Carpenter’s "Flagrant Conduct." While Klarman attempts to cover the entire sweep of the gay rights movement, Carpenter drills into the details of the Texas case that began one night in 1998 when the Houston County police, acting on a false police report of a “black man” berserk with a gun, entered the apartment of John Lawrence and reportedly saw Lawrence and another man, Tyron Garner, engaging in anal sex in Lawrence’s bedroom. The call to the police was made by a jealous and somewhat mentally unstable friend, Robert Eubanks, who was later convicted of making a false police report. What the police actually witnessed is a subject of dispute, but all witnesses agree that upon entry of the police into his bedroom, Lawrence angrily challenged the officers, saying, “You don’t have any right to be here.”
From such citizens' assertions are constitutional cases born. The Texas statute with which Lawrence and Garner were subsequently charged (Texas Penal Code § 21.01) prohibited anal and oral sex but only between homosexual partners. In 1973, Texas had revised its criminal code to remove any prohibition of anal or oral sex between heterosexual couples — thus, the Texas law was targeted by its own terms exclusively to prohibit homosexual relations, not the act of sodomy itself. Ironically, Carpenter concludes, based on his own interviews with the arresting officers, Lawrence and Garner, they were most probably not engaging in sex at all when the police entered the bedroom. The police report, alleging finding the two in flagrante delicto, was, Carpenter believes, false (why the police might have fabricated the account is the subject of some discussion in the book). An ironic twist, Carpenter writes, since the Texas sodomy law was “never really about stopping sodomy,” and thus it is fitting that the law “got its comeuppance in a case in which there was probably no sodomy.”
If Lawrence and Garner were innocent (as they both claimed in their interviews with Carpenter and elsewhere), how did this case make its way to the Supreme Court? Cases of enforcement of § 21.01 were so rare that news of the charges against Lawrence and Garner made its way to several gay rights activists in Houston. In particular, it was one Lane Lewis who persuaded Lawrence and his co-defendant to make this a test case. With the assistance of pro bono counsel assembled by Lambda, a gay rights legal defense organization, they entered “no contest” pleas to the charges and appealed on the grounds that the statute was unconstitutional. And thus, the case began its climb up the appellate ladder eventually to the courtroom of the United States Supreme Court.
The first appellate stop was an unexpected victory: a three judge panel of Republican appointees rule 2-to-1 that the Texas statute was an unconstitutional violation of Texas’s constitutional guarantee that all its citizens were “equal” under the law. Shocked by this turn of events, the district attorney requested, and received, a rehearing before a nine-judge en banc appellate panel, which reversed the first panel’s decision by a 7-to-2 vote. Since there was no right to engage in homosexual conduct (citing Bowers), the panel reasoned there was no impermissible discrimination in outlawing same-sex sodomy while permitting the same act between heterosexual couples — “the state could rationally conclude that ‘homosexual sodomy’ is a different, and more reprehensible offense than ‘heterosexual sodomy,’” the panel concluded. A petition for review by Texas’s highest court went unheard. All that was left was the hundred to one shot of review before the United States Supreme Court, and the Lawrence–Garner legal team took it, petitioning the Court to review the case and squarely asking it to reconsider and overrule Bowers. In December of 2002 the Supreme Court voted to accept the case.
Some of Carpenter’s most insightful writing follows in his description of the careful manner by which the Lawrence-Garner legal team framed and expressed their legal arguments and the selection process for the lawyer to argue the case (they settled on Paul Smith, a gay beltway lawyer with impeccable appellate credentials); the State, by contrast, sent Chuck Rosenthal, a homespun, deep voiced Texas trial lawyer with little appellate experience — a “mismatch,” according to Carpenter, from the start. The unequal talents of these two counsel, in this case about equality, became evident during the course of oral argument on March 26, 2003 (ironically, 10 years to the day before the hearing in the DOMA and Proposition 8 cases). Smith held his own against an onslaught of critical questions from the conservative wing of the court, championed by Justice Scalia, whereas Rosenthal floundered both in his presentation as well as his responses to questions from the bench. Justice Kennedy, thought to be the swing vote, offered neutral comments, leaving open his position on the issue. The outcome was up in the air.
Near the end of the Court’s session, the decision in Lawrence v. Texas was announced: Justice Kennedy would deliver the opinion of a five-justice majority. The Texas law was an unconstitutional infringement of the right of personal liberty guaranteed by the Constitution, and “Bowers v. Hardwick should be, and now is, overruled.” “There is a realm of personal liberty which the government may not enter,” wrote Justice Kennedy, and Penal Code § 21.01 invades it. The Texas law and all anti-sodomy laws still on the books were unconstitutional. Carefully, however, both Justices Kennedy and O’Connor (in concurrence) distanced themselves from any implications their decision might have as to the right of gays to marry.
In dissent, Justice Scalia fulminated. Likening sodomy to bigamy, incest, obscenity and even bestiality, he argued the State had every right to outlaw conduct it deemed immoral. And, perhaps prophetically (we shall see how argument goes on the DOMA and Proposition 8 cases), Justice Scalia rebuked his colleagues for thinking this decision held no implications for gay marriage. “Do not believe it,” he wrote.
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction be made between heterosexual and homosexual unions. […] One can believe that this case does not involve the issue of homosexual marriage only if one thinks that principle and logic have nothing to do with the decisions of this Court.
Carpenter remains focused on Lawrence, but Klarman’s book takes the longer historical view. He documents a succession of legal victories (usually in the state courts) followed by backlashes (usually in the legislatures or by public referendum) that resulted in a halting, two steps forward, one step back process in the arduous ascent of gay and lesbian rights in the United States. Baehr v. Lewin, a 3-to-1 decision by the Hawaii Supreme Court, was among the first cases to focus the public on the issue. Finding that a law restricting marriage to a man and a woman was a sex classification comparable to the already declared unconstitutional ban on interracial marriage, the Hawaii court concluded the law was subject to “strict scrutiny,” meaning it could not be upheld absent a compelling state interest. As a practical matter, once a court decides “strict scrutiny” applies, a statute rarely withstands review and the abolition of Hawaii’s same-sex ban was widely predicted. The victory was shortlived. “Baehr provoked an enormous political backlash,” Klarman writes, “both in Hawaii and on the mainland.” Religious groups, in particular the Catholic and Mormon churches, expressed outrage at the decision. Attempts to limit marriage to heterosexual couples were reintroduced in the Hawaii legislature, and eventually a constitutional amendment permitting the legislature to ban same-sex marriage but create a civil union status for same-sex couples.
Back on the mainland, backlash to what Congress viewed as a wacky, outlier decision from Honolulu took the form of the Defense of Marriage Act (DOMA), which easily passed both houses of Congress in 1996, to be signed by a reluctant President Bill Clinton that same year, quietly after midnight and with no ceremony (Clinton would later reverse his position on gay marriage). DOMA provided that no state is required to recognize a same-sex marriage from another state and codifies the non-recognition of same-sex marriages for all federal purposes, including insurance benefits for government employees, Social Security survivors benefits, immigration, and the filing of joint tax returns.
Klarman shows the pattern exhibited by the Baehr decision — judicial action in favor of gay rights, followed by public backlash, lead usually by the religious right — replayed in jurisdictions across the United States, among them State v. Baker in Vermont, Goodridge v. Department of Public Health in Massachusetts and Varnum v. Brien in Iowa. Overwhelmingly, the state supreme courts found, in keeping with the pathbreaking Hawaii decision, that restricting marriage to heterosexual couples violated equal protection of laws. California was among them. In 2008, in a 4-to-3 decision written by its cautious, Republican-appointed chief justice, Ronald George, the state’s highest court ruled that “statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny” and the existing “California legislative and initiative measures limiting marriage to opposite-sex couples violate the state constitutional rights of same-sex couples and may not be used to preclude same-sex couples from marrying.” Within months, some 17,000 gay and lesbian partners married in California, but the pattern of backlash replayed itself here, as well, and with a vengeance. Klarman writes:
Protect Marriage, a broad collation of gay marriage opponents that included the Mormon Church, the California Catholic Conference, and many evangelical churches, ran a campaign to qualify a marriage amendment for the ballot and then to pass it.
This was Proposition 8, also the subject of this week’s Supreme Court hearings. The public relations campaign for and against Proposition 8 proved to be the most expensive ballot contest of its kind in American history, with the two sides together spending nearly $85 million. Despite early predictions that Proposition 8 would fail in this generally liberal state, the proponents seized the upper hand in the media, emphasizing, for example, alleged dire effects on children if gay marriage were “taught in the schools.” In November 2008, California voters approved Proposition 8 by a margin of 52 percent to 48 percent. A chastened California Supreme Court refused to invalidate Proposition 8 on technical grounds, and California’s gay spring turned to winter.
All avenues of appeal having been exhausted in the California courts, opponents of Proposition 8 turned to the federal courts as a last resort (for the most part gay activists had avoided the federal courts, packed with right-wing judges from years of Republican presidencies, including the Supreme Court itself). Perry v. Schwarzenegger (now entitled Hollingsworth v. Perry before the Supreme Court) filed in May 2009 in the Northern District of California, challenged Proposition 8 as a violation of the federal, not state, constitution. Vaughn Walker, the district court judge to which it was assigned, and a George H.W. Bush appointee, conducted (over the objection of Proposition 8 supporters) a trial on the factual issues including the effect of same-sex parenting on children and the history of discrimination against gays. In August 2009 he issued his ruling: Proposition 8 interfered with the fundamental right to marry and failed to meet even a rational basis scrutiny under the Equal Protection Clause. Predictably, conservatives expressed outrage. Judge Walker retired from the bench not long after the decision and came out as gay. Efforts to reverse his decision on the basis of his alleged “bias” as a gay man were unsuccessful. Judge Walker’s opinion was affirmed by a three-judge panel of the Ninth Circuit and the stage was set for review by the United States Supreme Court, which accepted the case in December of last year.
Given the regularity of backlash, has resort to litigation helped or hurt the gay rights cause? Klarman says a bit of both:
On balance, litigation has probably advanced the cause of gay marriage more than it has retarded it. But such litigation has also probably impeded the realization of other objectives of the gay rights movement, and it has had significant collateral effects on politics.
The galvanizing effect of court decisions upholding same-sex marriage on the religious right has proven powerful in the extreme. Elections, state and federal, often turned on a candidate’s support or opposition to gay marriage, as Klarman repeatedly demonstrates. “The issue offered great political benefits and few costs to Republicans, who took full advantage,” concludes Klarman. At the same time, the virulence of right-wing opposition to same-sex marriage may be weakening, as public opinion adapts to a world in which openly gay relationships are more common and more commonly accepted. A bellwether remark by right-wing warrior Glenn Beck, quoted by Klarman, illustrates this shift: “Same-sex marriage isn’t hurting anybody. Honestly, I think we have bigger fish to fry.”
Perhaps so, Mr. Beck, but the Supreme Court will have two very big fish to fry this week, when it confronts the Perry and Windsor cases. How will these cases turn out? Both Carpenter and Klarman cautiously suggest the tide may be turning in favor of same-sex marriage rights. Carpenter:
The gay rights lawyers who brought us Lawrence very carefully and deliberately avoided marriage — the “m” word. […] In the Lawrence opinion itself, Justice Kennedy carefully reserved the question of marriage for another day. But thanks in part to Lawrence, which did not so much clear the whole constitutional path as remove one huge roadblock, that day may yet come.
Klarman is more certain: recognition of gay marriage is, he thinks, “inevitable.” But that is not to say the final day of triumph may be in the chambers of the Supreme Court. The showdown there will be between warring camps of constitutional jurists — the originalists, lead by Justice Scalia, who along with Justices Thomas and Alito believe the constitution’s meaning was fixed when the document was signed, and the living constitutionalists, exemplified by Justices Breyer and Ginsburg, who see it as a document whose meaning evolves over time. (The debate over these “Cosmic Constitutional Theories” has been the subject of several reviews and interviews in LARB, see "America’s Unwritten Constitution," "Reading Law: The Interpretation of Legal Texts," "Supreme Hubris: Theories of Judicial Activism," and "Reading the Text: An Interview with Justice Antonin Scalia of the U.S. Supreme Court.") Originalists will argue the constitution never mentions “marriage” as an enumerated right, and certainly not “gay marriage.” Living constitutionalists will look to evolving societal norms and the compulsion of precedent, including Lawrence v. Texas, to argue that the time has come to recognize a constitutional right to marry whom you will. Whatever the outcome this week, the debate will not end. The call for “equality” will resound in the chambers of courts and halls of legislatures so long as our republic lives, as each generation presses to unlock the full implications of the Declaration’s promise that all — perhaps soon to truly mean “all” — are created equal.