Arguing in Love
By Diana SeligNovember 9, 2018
Awakening by Nathaniel Frank
The dramatic path to Obergefell is the subject of Nathaniel Frank’s Awakening: How Gays and Lesbians Brought Marriage Equality to America. With great skill and vivid reporting, Frank analyzes the evolution in legal understanding and public opinion that resulted in remarkable change over a short period of time. The extension of marriage equality throughout the United States, he argues, emerged in tandem with an “awakening” in the political sphere and the courts, and among the American people, to the full dignity of gays and lesbians and to the worth of same-sex love.
Frank’s subtitle refers both to the legal advocates who propelled the movement forward and to the gay and lesbian public who worked alongside them, in tension and in cooperation, over several decades. Extensive research, personal interviews with plaintiffs, attorneys, activists, and political figures, and thoughtful analysis enhance his sweeping account.
Central to Frank’s narrative is a small group of attorneys who called themselves the Gay Rights Litigators’ Roundtable. Beginning in the 1970s, lawyers at nonprofit organizations came together with gay legal scholars and private attorneys to strategize ways to advance an agenda. At first this group worked on protections apart from marriage, and Frank nicely situates his story in the broader context of gay legal history. Advocates challenged sodomy laws and police harassment, battled discrimination in employment and housing, and sought relationship recognition in custody, adoption, foster care, bereavement leave, health benefits, and rent control. The devastation brought by the AIDS epidemic made painfully clear the disadvantages that gay couples faced without the legal protections of marriage. Attorneys drafted and debated domestic partnership and civil union bills as a step forward in legal recognition for same-sex couples.
Marriage itself was a goal for at least some activists as early as 1963, when ONE magazine ran a cover story advocating “homophile marriage.” In 1970, two men challenged Minnesota’s marriage law in a case that eventually reached the Supreme Court, which dismissed the suit. Gay and lesbian couples in other states sought marriage licenses in the early 1970s. As a law student, Evan Wolfson crafted a legal argument for same-sex marriage in 1983, when its prospect seemed unlikely; he continued to advocate its importance over the following decades. Attorney Mary Bonauto became another early and consistent champion of marriage equality, playing an instrumental role in several state victories and later arguing the Obergefell case before the Supreme Court.
Others in the gay and lesbian rights movement were less eager to embrace marriage as a goal. Some lesbian feminists in particular opposed state-sanctioned marriage on principle. Attorneys Paula Ettelbrick and Nancy Polikoff, for instance, understood marriage to be a patriarchal system that was inherently oppressive to women and that privileged some while excluding others. They saw marriage as an assimilationist goal that undermined the broader vision of gay liberation, the expansion of personal freedoms, and the potential for social transformation. Voicing their concerns in the late 1980s and early 1990s, they worried that same-sex marriage would create new forms of inequality by granting state-sponsored rights and benefits to some but not all gay people and by reinforcing conformity to social norms and traditional family structures. Rather than strive to join this flawed institution, they argued, the movement should advance alternatives to marriage and look for ways to distribute social benefits through broader definitions of the family. Other legal advocates thought that marriage should not become a priority of the movement, at least not yet, given other important civil rights limitations that gays and lesbians still faced.
Despite this opposition within the movement, gay legal advocates increasingly came to support the push for marriage. A 1993 decision by the Hawaii Supreme Court in favor of same-sex couples’ right to marry, and the subsequent attacks on the ruling, forced legal advocates to set aside their differences in order to defend the worth and dignity of same-sex relationships. By the mid-1990s, gay advocacy groups came to see equal marriage rights as central to the broader LGBT movement.
Frank emphasizes the strategic thinking of these legal advocates and their funders. Movement attorneys had been devastated by the 1986 Bowers v. Hardwick decision, which upheld state sodomy laws. The lesson they took was the need for caution in bringing cases before the courts in order to avoid such setbacks. This lesson was reinforced by the backlash to the Hawaii decision. While that ruling confirmed legal arguments in favor of marriage equality, voters in the state soon backed a constitutional amendment that allowed the legislature to ban gay marriage.
Beyond Hawaii, the ruling inspired a counter-reaction across the country: it energized the religious right’s anti-gay activism, as social conservatives found opposition to same-sex marriage a powerful draw, and brought numerous state bans on same-sex marriage. And it led to the federal Defense of Marriage Act, which allowed states to refuse to grant recognition to same-sex marriages performed in other states and which defined marriage as the union of one man and one woman, thereby preventing same-sex couples from receiving federal marriage benefits. In their support for DOMA, conservative lawmakers voiced fears that same-sex marriage would threaten traditional marriage and American civilization itself.
Frank effectively details the “brick by brick” approach that movement lawyers adopted in response. They sought to shift public sentiment while laying the legal groundwork at the state level. By carefully choosing each case, making limited challenges, requesting narrow rulings, and crafting cases that built upon each other, they hoped to establish precedent and build momentum. Their long-term strategy aimed to secure marriage equality in various states before looking to Congress or the Supreme Court for a federal solution.
Frank emphasizes the conservative ideas at the heart of this campaign. Beginning with Andrew Sullivan’s 1989 article in the New Republic advancing a conservative case for gay marriage, conservative voices and arguments proved effective with the public and the courts. Frank spotlights pro-marriage conservatives such as Ted Olson and Ken Mehlman, who used the language of patriotism, monogamy, family, and social stability to portray marriage equality as consistent with American principles. Movement activists eventually shifted away from claims to equal rights and benefits, finding the language of love, commitment, and care more persuasive in altering public opinion. They portrayed gays and lesbians as similar to straight people in their desire to express enduring love through marriage. Frank acknowledges that the movement’s reliance on conservative family values rested on an idealized portrayal of marriage, but “at least it was an idealism that looked toward the future and embraced the role of gays and lesbians within it.”
This approach was remarkably successful. Frank documents a dramatic shift in public opinion regarding same-sex marriage and gay rights. While under a quarter of Americans supported same-sex marriage in 1990, by 2011 a majority did. This shift accompanied successes at the state level. By the beginning of 2014, 17 states and the District of Columbia allowed same-sex marriage, although these marriages were not recognized under federal law. Those state victories came not only through the courts, but also through ballot initiatives and elected legislatures, a sign that marriage equality had gained wide public acceptance. What had first seemed a pipe dream became, in just two decades, a mainstream political position and a realistic goal.
Over time, activists on the ground grew increasingly impatient with the gradualism of movement professionals. Especially to younger activists, the pace of change appeared too slow. Frank describes recurring tensions between attorneys with the Litigators’ Roundtable, who proceeded cautiously, and gay and lesbian couples and their private attorneys, who paid less heed to strategic timing considerations as they pressed their cases. A strategic divide emerged between established gay advocates working to lay the groundwork and a new generation that refused to wait for the organized movement to tell them when to move ahead. Eager for federal action, these younger activists looked to a Supreme Court decision that would bring marriage equality to all. What had started as an effort by a small group of movement professionals expanded as outsiders, private attorneys, and grassroots activists joined the struggle.
The pace of change quickened after United States v. Windsor overturned the federal Defense of Marriage Act in 2013. In response to the ruling, federal judges overturned state marriage bans around the country. Quoting from judges who eloquently affirmed the equal dignity and humanity of gay people, Frank argues that these rulings demonstrated the “sweeping, rapid change not in constitutional theories but in perceptions of same-sex love across America.”
The established groups struggled to catch up to the changing landscape. After the overturn of DOMA, legal advocacy organizations could no longer control the timing or location of court cases. Gays and lesbians in Southern and Midwestern states, who had felt slighted by the geographic bias of movement lawyers who concentrated on coastal states that they considered more winnable, took matters into their own hands. They brought litigation, with much success, in states that would have been considered too risky just a decade earlier. Frank suggests that in these final stages, movement lawyers held on to their incremental approach too long, remaining overly cautious even as judges hinted that they would welcome broader challenges to marriage bans.
In the end, however, Frank credits the meticulous, incremental approach of professional gay rights litigators for the movement’s success: “[I]t was the strategy delineated by tenacious and persistent marriage movement champions such as Evan Wolfson and Mary Bonauto that ultimately prevailed — and with what can only be viewed as lightning speed.”
The Obergefell decision was the culmination of that strategy. In that ruling, Justice Anthony Kennedy argued that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.” New perspectives, wrote Kennedy, often “begin in pleas or protests and then are considered in the political sphere and the judicial process.” Such was true for the claims of same-sex couples that had reached the courts, accompanied by a shift in public attitudes and by the court’s new awareness of a limitation inconsistent with fundamental rights. It was now time to grant those couples “equal dignity in the eyes of the law.”
Frank’s account is a triumphant one: despite setbacks, tensions over tactics, conflicts among participants, and resistance from some quarters, the marriage movement succeeded, and in so doing, benefited not only gay and lesbian people but the United States itself. In the end, he concludes, “marriage equality transformed LGBTQ life and the nation alike.”
In assessing the implications of this victory, Frank briefly acknowledges that marriage, as feminist critics had predicted, did not bring new inclusion for alternative relationships or an overthrow of the patriarchy. His account could go further to examine the vision and tactics of activists who sought love and family without the sanction of the state, and to consider the consequences of the marriage campaign for queer culture. In what ways did the focus on marriage affect queer imagination and resistance? What was lost, even as much was gained?
Similarly, the book could go further to analyze understandings of sexual orientation in the fight for gay and lesbian civil rights. Throughout his narrative, Frank adopts the essentialist interpretation of gay and lesbian identity that proved so useful in legal claims for same-sex marriage. He dismisses “homosexuality as a choice” as a social conservative view marshaled in opposition to marriage equality. He applauds, instead, claims for the immutability of sexual orientation, which depicted homosexuality as an innate and unchanging characteristic in order to validate the legitimacy of civil rights demands and justify a heightened scrutiny standard in the courts. Yet some queer scholars and activists questioned the implications of these claims for immutability. If equal marriage rights depended on the fixed nature of gay and lesbian identity, what did that mean for bisexuals, who presumably had broader options for whom to love? To what extent did the law’s demand for stable and definable categories conflict with the fluid and variable ways in which people often lived their lives? Were gay and lesbian people in fact a fixed minority, or was it possible (as social conservatives feared) that the public acceptance, increased visibility, and legal recognition that marriage equality brought might create conditions in which more people would claim a gay or lesbian identity? In response to these questions, some activists offered alternative strategies to promote equality and justice.
As one of the first books to chronicle the campaign for marriage equality, Awakening offers a rich and rewarding discussion that covers much ground. At the same time, it suggests additional areas for future study. For instance, Frank only briefly considers the link between marriage and gender roles. In his epilogue, he notes that some leaders, including Kate Kendall from the National Center for Lesbian Rights, concluded that marriage equality advanced a critique of gender inequality and gender distinctions. This observation is worth further analysis, as some of the evidence that Frank offers suggests that opponents to same-sex marriage feared the collapse of traditional gender roles. Missing, too, is an analysis of the implications of the marriage equality movement for communities of color, the leadership of racial minority groups, and the ways in which voters of color responded to the civil rights language employed by marriage equality advocates.
Indeed, Frank’s account offers a blueprint for future research. We still have much to learn about grassroots organizing and state campaigns, as well as about the international context in which the US movement emerged. Future studies might consider the implications of the marriage equality movement for transgender rights, analyzing how trans people responded to and participated in the movement for marriage equality and the extent to which legal advocates were inclusive of trans concerns.
More work remains to be done, too, to explore the current backlash. State laws invoke religious liberty to justify discrimination, and LGBT Americans still have no federal protections in employment and housing. Many stories wait to be told. Awakening offers an inspiring place to start.
Diana Selig teaches history at Claremont McKenna College and is the author of Americans All: The Cultural Gifts Movement.
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