Obergefell v Hodges: LGBT Marriage Equality in California
July 26, 2017
The 2015 ruling of Obergefell v Hodges, which granted the right to marry for LGBT couples, may have seemed to appear suddenly. In fact, it was the culmination of a decades-long battle with far-reaching effects. Let’s take a closer look at what led to this pivotal moment in the LGBT rights movement.
Building the legal foundation
The emergence of marriage equality as a specific policy goal can be traced back to the same event that sparked a nationwide conversation about LGBT rights—the 1969 Stonewall Riots. The riots occurred when the Stonewall, a gay bar in NYC, was raided by police. Tired of being harassed, the bar patrons fought back, resulting in the spark that would become the LGBT rights movement.
Inspired by this bravery, during the 1970s, several couples in various states petitioned for the right to marry, but their cases were tossed aside by judges, sometimes with hateful, bigoted language. It was too early for gay marriage to be taken seriously.
Flash forward to 1983, when Evan Wolfson, a student at Harvard Law School, wrote his thesis on marriage equality. It was the first time that a legal argument had been fully articulated, and this document would serve as a touchstone for future legal work.
A decade later, two women petitioned for the right to marry in Hawaii, and the state’s Supreme Court surprised the country by ruling that denying same-sex couples the right to marry was unconstitutional. The victory was short-lived, however, and the LGBT community received vicious backlash, resulting in the ruling being reversed by a state constitutional amendment. There was also backlash at the federal level, culminating in the passage of the “Defense of Marriage Act” (DOMA), passed by the legislature in 1996. DOMA legally defined marriage as between a man and a woman, creating a formidable legal barrier for marriage equality.
But LGBT rights activists pushed back. They focused their legal argument on the unconstitutionality of being denied the rights (and responsibilities) that marriages provide. There are more than 1,100 such rights, such as medical rights (such as being able to determine how your spouse is treated if they are unable to make medical decisions), employment benefits (such as the ability to be a recipient of family health insurance), tax benefits, and more.
As this legal argument gained strength, states began creating another option: civil unions and domestic partnerships, perhaps inspired by the creation of similar unions in other countries, such as in France in 1999. Though these types of legal relationships provided some of the rights and responsibilities of marriage, they functioned only at an individual state level. This created barriers and complications if couples wanted to live elsewhere, and also failed to provide important federal rights. Likewise, state-level legislation gave little confidence in long-term legal stability, given the back and forth of LGBT rights laws in many states, including California. Most importantly, they hinted of the “separate but equal” sentiment that propped up the segregation era preceding the Civil Rights Movement, rather than providing true equality.
Advocates instead began to focus on how to achieve strong and long-lasting law at the national level that could not be overturned.
Enacting an educational campaign
When developing the marriage equality strategy, organizers looked to techniques used during the Civil Rights Movement. After all, though each movement was born in drastically different circumstances, some of the broad-reaching goals could be considered parallel. Both have fought for the cultural, societal, and political equality of groups of people that were traditionally treated as less than equals, or even as less than human. And so, marriage equality organizers began investing in a campaign that, like the Civil Rights Movement, would educate the public on the moral necessity of LGBT rights, and the importance of cementing those rights through law.
The educational component also functioned to counteract the fear tactics that anti-gay groups were using, and instead appeal to the public’s ethics by framing the issue as one of equality.
By the early 2000s, it was clear that distinct leadership was necessary and “Freedom to Marry,” an organization backed by Evan Wolfson, was formed.
Wolfson and others strategized a campaign that would work initially with the states. They reasoned that by slowly building up state-level support, they would eventually reach a tipping point at which it would be clear that the majority of Americans were in support of same-sex marriage. Then, they would be positioned to successfully push for federal legislation, ideally as a Supreme Court ruling, which would be legally strongest.
Two years after the formation of Freedom to Marry, organizers celebrated when Massachusetts was the first state “won” in 2004, by a ruling of the State Supreme Court. At that time, both presidential candidates (George W. Bush and John Kerry) were opposed to gay marriage, as well as then-senator Barack Obama, who cited religious reasons. Clearly, this was only the first small victory in a long-term battle.
Indeed, the victory faced extreme lashback. Across the country, other states began enacting discriminatory laws preventing gay marriage legislation. State constitutional amendments with language echoing the “Defense of Marriage Act” was popular, though other legal methods were also used.
However, it appeared that those states were to be on the wrong side of history. Around the world, the tide had begun to turn in favor of LGBT marriage rights. The Netherlands had led the international community by legalizing same-sex marriage in 2001, followed by Belgium in 2003. Much closer to home, Canada did the same in 2004, followed by Spain and South Africa in 2005 and 2006, respectively.
Changing hearts and minds
2004-2007 saw fierce political battles being waged throughout the country, with California being a case in point, as we discuss in another blog post.
Both the public and lawmakers appeared divided, so campaign organizers doubled down in their efforts. In 2008, a second state, Connecticut, was won. By 2009, the movement had begun to ‘snowball,’ after a coordinated effort on many fronts. Vermont, Iowa, Maine, New Hampshire, and Washington DC all joined the growing list of states that had legalized gay marriage.
Public sentiment began to shift as well. This was characterized by newly-elected President Obama’s publicly evolving beliefs on the matter. Having initially been a supporter of civil unions, he openly declared his support for full marriage equality in 2012, stating: “I hesitated on gay marriage because I thought that civil unions would be sufficient…but I have to tell you that over the course of several years as I talked to friends and family and neighbors… [and] at a certain point I just concluded that for me personally, it is important for me to go ahead and affirm that I think same sex couples should be able to get married.”
President Obama’s evolution, in a way, gave permission for other Americans to have similar shifts in opinion.
Understanding this, LGBT marriage organizers shifted the focus of their messaging from one that demanded rights and benefits, to one that focused on something everyone can relate to: love. This pivoted the issue from a political one to a personal one, which would be more effective at changing hearts and minds.
The campaign worked. 2012 saw marriage equality won in Minnesota, Maine, Washington, and Maryland. Progress was being made at the national level as well. The constitutionality of the Defense of Marriage Act had been called into question, and in 2013, the Supreme Court of the United States struck it down. However, they refrained from ruling on whether gay marriage should be legal or not, instead declaring that it should be handled at the state level.
Meanwhile, organizers had been putting pressure on lawmakers, especially Democrats, to become allies, and by 2014 it was on the official Democratic national agenda.
A particularly promising sign that the scales were tipping in favor of LGBT rights was the reduction in lashback. In fact, a study out of UCLA reported, “legal recognition of marriage for same-sex couples has been followed by more rapid increases in public support.”
This perhaps indicated a shift in the “Overton Window,” a political science term for what the public deems acceptable. The Gallup poll has measured Americans’ support of same-sex marriage since 1997, and the changes in sentiment have been dramatic. In 1997, 68% of Americans stated that same-sex marriage “should not be valid,” while 27% said it should. By 2014, about 56% were in support.
The ‘scale’ of public sentiment was reaching a critical point, and it was nearly time for the next big step.
The final stretch
State bans on gay marriage were now being challenged around the country, based on the same legal foundation that had successfully overturned DOMA. As these cases made their way up in the court system, they eventually reached the appellate courts, one step down from the supreme court. Four circuit court of appeals had ruled that marriage discrimination was illegal. One, however, the 6th circuit (including Kentucky, Michigan, Ohio, and Tennessee), upheld marriage discrimination. With circuit courts in conflict, marriage equality could no longer be treated as a state-level issue: it was time for the Supreme Court to make a national ruling.
The case would be named Obergefell v Hodges after the heartbreaking case of James Obergefell and John Arthur. After a decades-long relationship, the two had been married in Maryland. But upon returning home to Ohio, they realized that when John passed away, as was likely to occur soon due to John’s ongoing battle with a terminal illness, their home state of Ohio wouldn’t recognize James as the spouse. They brought their case to the courts, and James Obergefell persevered to secure equal rights and dignity, even after his husband passed away. It turns out, his case would be one of many that fell under the 6th circuit court of appeals.
So in 2015, Obergefell v Hodges would become much more than one couple’s battle. The Supreme Court would hear arguments from the combined cases of the 6th circuit, using Obergefell v Hodges as an umbrella name that would encompass all cases.
This was it. The moment of truth had arrived.
Organizers called on all of their allies to demonstrate their support, and the country waited with bated breath to hear the outcome. After extensive arguments made by both sides, on June 26, 2015, the Supreme court decided in a 5-4 ruling that the denial of marriage based on sexual orientation was unconstitutional. This ruling was based on the 14th Amendment, which states that no person shall be denied equal protection under the law.
The battle was finally won, and celebrations lasted far into the night in cities and towns across the country. In the following weeks and months, wedding bells rang as thousands of couples said “I do.”
Effects and looking ahead
Though marriage isn’t everything, it is one step closer to true, lived equality. It allows humans to more fully and freely express their true selves. Just as the victory of the 1967 Loving v Virginia, which lifted the ban on interracial marriage, Obergefell v Hodges was a critical way to define and codify that the LGBT community should be treated equally.
One significant effect has been the drastic increase in those publicly identifying as LGBT. Marriage equality, and the parallel shift in public opinion towards the support of the LGBT community, has made it safer for individuals to “come out.” In 2012, only 3.5% of Americans identified as LGBT on the Gallup poll. By 2014, that number had jumped 17% to 4.1% of all Americans. Perhaps even more telling, for millennials the percentage has increased from 5.8% to 7.3%. This may indicate that the U.S. as a whole is becoming more inclusive towards the LGBT community.
Worldwide, other countries have made progress on similar journeys, building on the momentum the U.S. has helped create. For example, Colombia, a country in South America, legalized marriage equality in 2016.
Lastly, this victory has affected the fight for LGBT equality in other areas, such as stronger anti-discrimination laws, which affect everything from being treated fairly in the workplace to adopting children. The Gay Family Law Center is proud to have served the LGBT community for many years, and we look forward to doing so in the future.
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