WASHINGTON — On Wednesday, the Supreme Court will issue its final opinions of the term. One case remaining challenges the portion of the 1996 Defense of Marriage Act that prohibits the federal government from recognizing same-sex couples’ marriages. Another challenges the California marriage amendment, known as Proposition 8, passed by the voters of that state in 2008.
In the five years since the passage of Proposition 8 there has been unprecedented changes in public opinion and in the law regarding marriage equality.
That recent history, however, understates how remarkable this moment is. Pulling the lens back further shows how unimaginable even the concept of the cases being considered by the justices — whatever the decisions ultimately might be — would have been to judges, and the nation, in the not-so-distant past.
Forty years ago, in the years of activism that followed the riots at New York City’s Stonewall Inn, two women asked Kentucky officials for a marriage license. The Kentucky Court of Appeals unanimously held that the couple could not have one. The reason was not simply that same-sex couples didn’t have a right to marry, though.
“It appears to us that [the women] are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Court Clerk of Jefferson County to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined,” the court held.
If that wasn’t blunt enough, the court concluded by telling the two women, “In substance, the relationship proposed by the [women] does not authorize the issuance of a marriage license because what they propose is not a marriage.”
The Supreme Court justices at the time did not appear to think much differently, concluding the year before that a case brought by two men in Minnesota who wished to marry did not present any “substantial federal question.” In other words, there was so obviously no constitutional question that the justices didn’t even need to hear the case.
In the four decades since then, activists and advocates have dedicated themselves to changing that. Although there are too many to count, let alone name, some have left an indelible mark on the movement. Evan Wolfson, who wrote often and spoke loudly about the issue before others were comfortable doing so; Mary Bonauto, the out-of-the-spotlight lawyer who easily is the person most responsible for the fact the all of New England already has marriage equality; and Chad Griffin, who decided to engage help outside the LGBT movement to press for full federal marriage equality when others thought the move was folly, are three key voices for change.
There also has been a key trio of Republicans — all with pasts that included varying levels of support for President George W. Bush, the only president to have supported a constitutional amendment to ban same-sex couples from marrying — who have moved the country forward on this issue. Within the Republican Party and conservative movement, it is clear that Andrew Sullivan, Ted Olson and Ken Mehlman — all liberals’ enemies at one point or another — helped set the stage for dissent and ultimately a genuine split on the issue within the leadership ranks of the party and the movement.
Then, there are the stories — countless stories of love and of loss — that have moved families, friends, neighbors and the country. From the plaintiffs in the cases before the Supreme Court to the thousands of couples who have lived out lives in their communities, America has met couples like Kris Perry and Sandy Stier — one of the couples asking for Proposition 8 to be struck down — and learned they want to marry.
Even at the Supreme Court, the change is evident.
In 1986, when the justices upheld the constitutionality of Georgia’s sodomy law, Justice Byron White wrote for the court, “No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated ….”
Ten years ago, on June 26, 2003, the justices reversed that decision, striking down all the remaining sodomy laws in the country with its decision in Lawrence v. Texas, and holding that the 1986 case “was not correct when it was decided, and it is not correct today.”
Of course, Justice Antonin Scalia disagreed with the decision, and, in his view, warned the country, “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”
In a sense, it did — although the change already had begun in some state courts.
Within months of the Lawrence decision, the Massachusetts Supreme Judicial Court, in part relying on that decision, became the first court in the nation to require that a state allow same-sex couples to marry. The decade since brought, first, a wave of state amendments banning same-sex couples from marrying, then, a period of inconsistent results, and, most recently, a period of significant success for marriage equality supporters in the states.
When the justices considered the Proposition 8 and DOMA challenges in late March, even Scalia took a slightly different tone at points. In defending against “a nationwide rule … that every State must allow marriage by same-sex couples” in a country in which some states “believe it is harmful,” Scalia was quick to note, “[A]nd I take no position on whether it’s harmful or not.”
With 12 states and Washington, D.C., currently having passed marriage equality as of now, the ground had shifted — in ways that matter and should be marked since 2008, since 2003, since 1996, since 1986, since 1973 and since 1969, when the Stonewall Riots began 44 years ago this week.
When the justices issue their final rulings of the Supreme Court term on Wednesday, the decisions about the constitutionality of Section 3 of DOMA and California’s Proposition 8 could dramatically change the way the government treats same-sex couples. And, if they do so, it is likely that the change will be forever.
The only reason that this is happening, though, is that the cases reflect the reality that 40 years later, for a majority of Americans, what Stier and Perry — as well as scores of other same-sex couples — have proposed is a marriage.