NEW HAVEN — THE Supreme Court’s soaring decision to strike down the core of the Defense of Marriage Act as unconstitutional is a civil rights landmark, but the history leading up to it is poorly understood. Marriage equality was neither inevitable nor, until recently, even conceivable. And the struggle for it was not, as is commonly believed, a natural consequence of the gay liberation movement that gained steam in the late 1960s.
It was not until the 1980s that securing legal recognition for same-sex relationships became an urgent concern of lesbians and gay men. Decades earlier, such recognition was almost unimaginable. In the 1950s, most states criminalized gay people’s sexual intimacy. Newspaper headlines blared the State Department’s purge of homosexual employees during the McCarthy-era “lavender scare.” Police cracked down on lesbian and gay bars and other alleged “breeding grounds” of homosexuality.
The lesbian and gay liberation movements of the early 1970s did not make marriage a priority — quite the opposite. Activists fought police raids, job discrimination and families’ rejection of their queer children. Most radical activists scorned the very idea of marriage. But a handful walked into clerks’ offices across the country to request marriage licenses. State officials suddenly realized that their laws failed to limit marriage to a man and a woman; no other arrangement had been imagined. By 1978, 15 states had written this limitation into law.
A “traditional family values” movement arose to oppose gay rights and feminism. Anita Bryant and other activists took aim at some of the earliest local anti-discrimination laws, and by 1979 they had persuaded voters in several cities to repeal them. Subsequently, in more than 100 state and local referendums, gay-rights activists had to defend hard-won protections. This, not marriage, consumed much of their energy.
It was the ’80s that changed things. The AIDS epidemic and what came to be known as the “lesbian baby boom” compelled even those couples whose friends and family fully embraced them to deal with powerful institutions — family and probate courts, hospitals, adoption agencies and funeral homes — that treated them as legal strangers.
Hospitals could deny the gay partner of someone with AIDS visitation privileges, not to mention consultation over treatment. He couldn’t use his health insurance to cover his partner. He risked losing his home after his partner died, if his name wasn’t on the lease or if he couldn’t pay inheritance taxes on his partner’s share (which would not have been required of a surviving spouse).
When two women shared parenting and the biological mother died, the courts often felt obliged to grant custody to her legal next of kin — even if the child wished to remain with the nonbiological mother. If the women separated, the biological mother could unilaterally deny her ex the right to see their children.
Couples used wills, powers of attorney and innovative new legal arrangements like domestic partnerships and second-parent adoption to try to get around these injustices, an astounding achievement given the reigning conservatism of the ’80s and early ’90s. But for all their virtues, none of these arrangements could provide the Social Security, tax, immigration and other benefits that only marriage could bestow.
The marriage movement emerged out of this maelstrom, but it was always about more than legal benefits. Historically, denial of marriage rights has been a powerful symbol of people’s exclusion from full citizenship. Enslaved people in America did not have the right to marry before the Civil War; Jews did not have the right to marry non-Jews in Nazi Germany. In 1948, the United Nations enshrined the freedom to marry as a fundamental human right. That same year California’s highest court became the first in the nation to overturn a state law banning interracial marriage.
As attitudes toward homosexuality changed in the 1990s, before accelerating ever more rapidly over the last decade, antigay activists — who had already fought gay teachers in schools, gay-student groups, gay characters on TV, domestic partnerships and anti-discrimination laws — redoubled their fight against marriage equality. In 1996, when it appeared that Hawaii’s courts might let same-sex couples wed, Congress passed DOMA, which declared that no state needed to give “full faith and credit” to another state’s same-sex marriages. It also denied federal recognition and benefits to such marriages — the provision struck down on Wednesday. As Justice Anthony M. Kennedy wrote for the majority: “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”
When Massachusetts became the first state to let gay couples marry, in 2004, it unleashed opposition as well as euphoria. That year, 13 states amended their constitutions to ban such marriages (12 had already done so legislatively). Ultimately, California and 40 other states acted to limit marriage to one man and one woman by constitutional amendment, legislation or both; in 30 states, the amendments are on the books. As a result of another Supreme Court ruling on Wednesday, California will soon join 12 states (and the District of Columbia) in permitting same-sex marriage, but the state-by-state battle will grind on elsewhere.
The intensity of the backlash against marriage equality eventually produced its own backlash. Many heterosexuals sought to distance themselves from the antigay animus it expressed. Young people, who grew up in a cultural universe different from their parents’, began to wonder why marriage was an issue at all. Political figures as different as Barack Obama and Rob Portman described how their children had affected their thinking.
Federal benefits will dramatically improve the lives of countless people, from the lesbian widow who needs her wife’s Social Security benefits to hold onto her home to the gay New Yorker whose foreign husband will now be able to live with him in America. Couples will no longer suffer the indignity of having the government treat their marriages as inferior.
Urgent problems still confront lesbian, gay, bisexual and transgender people, including the endemic bullying of queer students, discrimination in housing and employment and the surge in new H.I.V. infections among young gay and bisexual men. Marriage equality has singular legal, cultural and practical significance. Nonetheless, it was not the first issue to animate the struggle for equality and dignity — nor will it be the last.
George Chauncey, a professor of history and American studies at Yale, was an expert witness in both of the same-sex marriage cases decided Wednesday.