The Equal Freedom to Marry

A story by Mary L Bonauto from 1990-2021

Mary Bonauto

Why did it take a ruling from the U.S. Supreme Court for same-sex couples to be able to marry nationwide? After all, deciding whether and whom to marry is an intensely personal decision and is associated with a life partnership of love, commitment, and mutual responsibility and care. Our society allows individuals, not the government, to make that choice for themselves.

The short answer is that States control marriage laws and many states did not expressly allow, and later explicitly barred, same-sex couples from marrying. Those laws collided with the human aspirations of LGBTQ+ people who, like generations of people before them, simply wanted to join in marriage with the person they loved and to take responsibility for one another in the unique cultural, legal, and social institution of marriage. Those state bans also collided with our constitutional guarantees of equal protection and due process of law.

Sometimes, as with same-sex couples and marriage, conventional rules come to be seen as denying our fellow Americans both precious legal protections and their common humanity. Well into the 19th and 20th centuries, women lost rights on their wedding day, either to be absorbed into their husband's legal identity and to become, if you will, "Mr. and Mrs. Him," or even to lack protections against rape and sexual assault. Across the nation, marriage is now an institution of legal equality where the rights and responsibilities of the marital partners are mutual and identical regardless of gender. That is an institution in which same-sex couples fit easily.

Likewise, throughout U.S. history, state restrictions once barred some people from marrying on racial, ethnic, or health-related grounds that we now recognize as discriminatory. In the foundational (and best-named) case of Loving v. Virginia, a state trial judge sentenced Richard Loving and Mildred Jeter to jail for violating Virginia's laws barring marriage across "the color line" unless they left the State. They left Virginia and filed suit. The U.S. Supreme Court unanimously ruled that states cannot restrict marriage based on the race of the partners, and that "the freedom to marry" is part of the vital personal rights of all Americans. "All."

United States Supreme Court Justice Ruth Bader Ginsburg famously described the history of our constitution as the story of the extension of constitutional protections to people once ignored or excluded. We are living participants and witnesses to that enduring journey, including for LGBTQ+ people.

The road to the Supreme Court runs through the States. Generations of same-sex couples, inspired by the Supreme Court's 1967 ruling in Loving v. Virginia that ended the remaining (but once common) racially-based marriage restrictions as violating both equal protection and the liberty-based "right to marry," have courageously stepped up to end their exclusion from marriage.

From the immediate post-Loving cases in the 1970s, through to Hawaii's putting the issue on the map in the 1990s, on to Vermont's 1999 Supreme Court ruling that these couples must be extended the same protections and responsibilities as to married couples for "their avowed commitment to an intimate and lasting human relationship" to the historical turning point with the first marriage win in the Massachusetts Supreme Judicial Court in 2003 (relying on both equality and liberty/due process grounds), these case were an engine for public understanding and engagement across communities nationwide about LGBTQ+ people. As one federal appellate court put it in 2014, "it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian."

The Massachusetts court spoke also of the significance of marriage: "Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family." With marriage comes "enormous" legal protections "touching nearly every aspect of life and death" and helps families and children by easing the parents' way to family-based legal protections and responsibilities. Denying marriage caused "a deep and scarring hardship" on the seven plaintiff couples and many others throughout the Commonwealth. State high courts in Connecticut (2008), California (2008), and Iowa (2009) were also early actors in upholding same-sex couples' right to marry, although California amended its constitution to bar marriage later in 2008.

Advocates never took their eyes off of the legislative process – to speak to their lawmakers about their families and ask them to change marriage laws and protect their families – even though that path was available only in the minority of states that did not bar marriage for same-sex couples under their state constitutions. Vermont (2000) and Massachusetts (2007) refused to overturn positive court rulings with constitutional bans. Then, in 2009, Vermont led the way and passed a marriage equality law, with the legislature overriding a gubernatorial veto. Gov. John Baldacci likewise signed a marriage law in Maine that had enjoyed bipartisan support, followed by New Hampshire in 2009. While Maine voters narrowly approved of a "people's veto" to repeal the marriage law at referendum in November 2009, that was not the end of the story. For the next three years, Mainers from all walks of life talked to their families, neighbors, faith communities and more about why marriage matters. In 2012, Maine voters approved a ballot measure allowing same-sex couples to marry, showing the entire nation that people can change their minds on this issue and about LGBTQ+ people.

The pace of events continued to accelerate as the public saw that more people marrying posed no threat to them or to society, and instead supported those families and their communities. States that could passed marriage laws. In 2013, the U.S. Supreme Court invalidated the federal "Defense of Marriage Act," thereby requiring the federal government to treat married same-sex couples as the married people they were under over 1000 federal laws. In another case, the Court restored marriage to California.

After many legal and culture changes, as well as developing case law, it was clear that the States were divided and in January 2015, the U.S. Supreme Court granted review of federal appellate court ruling against the couples and surviving spouses from Michigan, Ohio, Tennessee and Kentucky. With a team of Michigan attorneys, including Carole Stanyar, Ken Mogill, Robert Sedler and now Michigan Attorney General Dana Nessel, I represented April DeBoer and Jayne Rowse and Kentucky couples seeking the freedom to marry at the U.S. Supreme Court. Another team represented Jim Obergefell of Ohio as well as other couples from Ohio, Tennessee and Kentucky who sought state recognition of their existing marriages joined out-of-state. In my first words to the Court that morning of April 28, 2015, I tried to distill the experiences of countless families, children, and surviving partners I'd met over the years into the language of law:

Mr. Chief Justice and may it please the Court. The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society. If this legal commitment, responsibility and protection is off-limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity. Indeed, the abiding purpose of the Fourteenth Amendment is to preclude relegating classes of persons to second-tier status.

We all know what follows, and the Supreme Court's majority ruling relies on the same legal frameworks as in Loving and explains at length both why marriage is a "fundamental right" and why marriage bans violate central precepts of equality. A large majority of Americans support marriage equality. And most importantly, any two people otherwise qualified to marry can now do so regardless of gender. It is the law of the land.

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