The high court’s first brush with same-sex marriage in 1972 was brief and desultory
By Mark Sherman
Associated Press
WASHINGTON (AP) — In 2004, when Massachusetts became the first state to allow same-sex couples to marry, President George W. Bush declared support for a constitutional amendment “to protect the institution of marriage.” Voters in 13 states changed their constitutions to define marriage as the union of a man and a woman. In most of those states, the vote wasn’t even close.
Eleven years later, the Supreme Court has now ruled that all those gay marriage bans must fall and same-sex couples have the same right to marry under the Constitution as everyone else. “No longer may this liberty be denied to them,” Justice Anthony Kennedy said in his June 26 opinion for the court.
The opinion builds on the three earlier Kennedy opinions in favor of gay rights dating to 1996, but also on the legal fights that same-sex couples undertook over more than 40 years. There were key victories and losses, starting with a case from Minnesota in 1972.
Recollections from some participants in the fight:
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Jack Baker can claim to be among the first to predict publicly that gay rights advocates would win the marriage fight, back when most in the country could not envision the idea.
“I am convinced that same-sex marriage will be legalized in the United States,” Baker told a group of lawyers on Oct. 21, 1971, as quoted in the St. Paul (Minn.) Pioneer Press.
Baker, a retired lawyer, and Michael McConnell, a retired librarian, have been together since 1967.
Baker explained his certainty to The Associated Press in 2011: “The outcome was never in doubt, because the conclusion was intuitively obvious to a first-year law student.”
It wasn’t so obvious to county officials in Minneapolis, state judges or the Supreme Court. Homosexuality was still defined as a mental disorder and gay couples couldn’t marry anywhere in the world.
Baker and Michael McConnell tried and failed to get a license at Hennepin County courthouse in Minneapolis on May 18, 1970. After Minnesota’s top court upheld the refusal of county officials to issue a marriage license to two men, Baker and McConnell appealed to the Supreme Court.
The justices’ first brush with same-sex marriage was brief and desultory. In October 1972, the court declined to hear arguments in Baker v. Nelson. The justices took just one sentence to turn away the case “for want of a substantial federal question.”
That curt rejection remained on the books for nearly 43 years, until June 26. “Baker v. Nelson must be and now is overruled,” Kennedy wrote.
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Steven Levinson was a new addition to Hawaii’s Supreme Court in 1992 when that court heard the case of three same-sex couples challenging the state’s marriage prohibition. In May 1993, he was the author of the court’s ruling that said denying marriage licenses to same-sex couples was sex discrimination. “People were not prohibited from getting married,” Levinson said. “It was just that they had to marry someone of the opposite sex.”
He wasn’t expecting much of a reaction. “I naively assumed it was going to be the law of the land at least in the state of Hawaii forthwith,” he said. “Then all hell broke loose.”
The reaction from opponents of same-sex marriage was swift. Within three years, a bipartisan majority in Congress passed and President Bill Clinton signed the federal Defense of Marriage Act, barring federal recognition of gay and lesbian marriages and bolstering states in their refusal to recognize same-sex marriages from elsewhere.
In Hawaii, lawmakers passed a bill banning same-sex marriage and voters amended the constitution to say that the decision rested with the Legislature. Same-sex marriage didn’t become legal in Hawaii until 2013.
But the 1993 court decision was a huge step, even with the setbacks that followed, said Evan Wolfson, founder and president of the pro-gay-marriage group Freedom to Marry.
“If you had to pick one thing that was the turning point, to me it was Hawaii because the Hawaii case really was the first time we were able to get our day in court,” Wolfson said. “In the ‘70s, they all had been rubber-stamped away.”
Levinson remained on the court for 15 more years, but he said the story took a personal turn a year and a half after the ruling. “My daughter came out of the closet,” he said.
Levinson, 69, now serves on the board of the American Civil Liberties Union in Hawaii and officiated at his 36th same-sex wedding on July 4.
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By the middle of November 2003, Julie and Hillary Goodridge were getting tired of checking the website of the highest court in Massachusetts day after day in a vain search for a decision in their court case.
Then on Nov. 18 the Supreme Judicial Court said same-sex couples had a right to marry under the state constitution. “It forbids the creation of second-class citizens,” Chief Justice Margaret Marshall wrote for the court.
The Goodridges already had been together for 16 years and were raising their daughter, Annie, then in elementary school.
“We had no idea we were going to win,” Julie Goodridge said. “We had lost in the lower courts. When we realized we had won, it was just crazy.”
Gov. Mitt Romney and other state officials denounced the ruling and promised to put a measure before voters to change the constitution to forbid same-sex marriage.
The Goodridges had to wait six more months to get married. In that time, officials began issuing marriage licenses in San Francisco and New Paltz, New York.
The 2004 election campaigns also were in full swing and President George W. Bush announced his support for a constitutional marriage amendment. State lawmakers began adding measures to make similar changes to state constitutions.
Marriages in Massachusetts began on May 17, 2004, the 50th anniversary of the Supreme Court’s seminal civil rights ruling in Brown v. Board of Education.
By year’s end, though, with Bush re-elected and 13 state constitutions changed, recriminations were flying.
“There were people who were very upset who said, ‘Look what you did,’” Hillary Goodridge said. “But I never doubted what we did or the timing.”
She chalked up the marriage amendments to “the last gasp of dinosaurs.”
Five years after they married, Julie and Hillary Goodridge divorced. Being able to end their marriage under state law “gave us a framework to unravel a 22-year relationship,” Julie Goodridge said. “It happened. We did it and we did it really, really well.”
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New York seems an odd place for a fight over gay marriage.
“We are the place where some people think the modern gay rights movement began at the Stonewall Inn,” said Susan Sommer, director of constitutional litigation for Lambda Legal, a gay rights legal advocacy group. She was referring to the gay bar where patrons stood up to a police raid in 1969, emboldening New York City’s large gay culture in years that followed. “Yet our state isn’t necessarily politically where parts of our state are culturally,” she said.
In 2006, New York’s highest appellate court upheld the state’s gay-marriage ban. Lawmakers, not judges, get to decide whether same-sex couples can marry, the state Court of Appeals said. The decision led to a drawn-out political fight that took five more years before same-sex marriage became the law in New York.
But along the way, Sommer said, New York courts did provide for recognition of same-sex marriages from elsewhere. That recognition was the basis for a lawsuit by an elderly New Yorker who objected to her $363,000 federal estate-tax bill after her partner of 44 years died in 2009. Edie Windsor married Thea Spyer in Canada in 2007 after doctors told them that Spyer would not live much longer. Spyer left everything she had to Windsor.
There is no dispute that if Windsor had been married to a man, the tax bill would have been zero.
The Supreme Court chose Windsor’s case to consider striking down part of the 1996 federal anti-gay marriage law that prevented people such as Windsor from receiving benefits given to other couples with valid marriages.
Kennedy’s opinion in favor of Windsor in June 2013 became the basis for the wave of federal court rulings that struck down state marriage bans and led to last month’s ruling.
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The other case that made its way to the Supreme Court the same time as Windsor’s was a dispute over California’s Proposition 8 that voters approved in 2008. Prop 8 halted same-sex marriage in its tracks in the largest state.
The justices could have used the California case to settle the same-sex marriage issue, but declined to do so, in part because only about a dozen states allowed same-sex couples to marry at the time. The Supreme Court restored same-sex marriage to California in a ruling that served another purpose as well, said Kris Perry, one of the plaintiffs.
Republican lawyer Ted Olson teamed with Democrat David Boies to represent the California couples who sought the right to marry. Olson was previously known for his advocacy — defeating Boies — on behalf of Bush in the 2000 presidential election dispute at the Supreme Court and as Bush’s top Supreme Court lawyer in the president’s first term.
Olson’s decision to fight for same-sex marriage “signaled a major turning point to the public and was hugely instrumental in public acceptance of the issue,” Perry said.
Now living in Washington, Perry was outside the court after the decision came down in the June gay marriage case, known as Obergefell v. Hodges.
She saw James Obergefell, the Cincinnati man whose fight for legal recognition of his marriage to his late husband, John Arthur, made him the lead plaintiff in the case.
“We felt like we had been on a relay team and he was running the final lap,” she said. “We had that baton. We ran a lap with it. It was wonderful to have been any part of it at all.”
