Courthouse Marriage

Courthouse Marriage

By Steven Stark - April 22, 2009

While political analysts understandably regard elections and politicians as the key forces of social change, nongovernmental forces are the ones that most often actually influence and transform our culture.

Harriet Beecher Stowe's 1850s novel, Uncle Tom's Cabin, probably did as much as any political event to help shape northern opinion in a way that made a Civil War inevitable. Martin Luther King Jr.'s decision to emulate Gandhi's philosophy of nonviolence gave the civil-rights movement a broader appeal that sped the pace of change. Civil-rights' lawyers strategic litigation, beginning with Brown v. Board of Education in the 1950s, did much the same.

In a similar vein, the decision to re-label the anti-abortion movement the "pro-life movement" was a brilliant tactical move that has helped it to continually recruit followers in the decades that have followed Roe v. Wade.

When historians look back at our era, they'll likely view the growing acceptance of gay men and women by the non-gay majority as one of the great social changes of our time.

True, this cultural shift is due to a confluence of factors. But perhaps the primary impetus sprung from a strategic commitment about a decade ago within the gay-rights movement to push for same-sex marriage - and not through the ballot box or legislative action, but through litigation.

It was, at the time, an extremely controversial decision. And there was reason to believe it couldn't possibly work, since the growing conservatism of the courts was thought to make the kind of "rights revolution" seen in the 1960s now impossible.

But it has worked, and in the process has helped make the cause of gay rights more acceptable and legitimate to mainstream America - just as it was intended to do.

This is our liberation?
According to George Chauncey's compelling and exhaustive history of the cause, Why Marriage?, the strategy has its roots in the desire to protect same-sex couples from discrimination in child-custody, living-wills, and insurance matters. Yet it was not a particularly popular cause in the early days of the movement in the 1970s.

"That isn't the freedom we want," wrote one critic within the movement. "That isn't our liberation." Even some 15 years later, there was a strong element in the gay community that viewed marriage as an institution too identified with both assimilation and male domination of women to be a strategic goal.

Chauncey pinpoints a group of lawyers at GLAD (Gay and Lesbian Advocates and Defenders, a New England legal-rights group) and Lambda, the nation's oldest and largest gay-rights legal organization, as the key figures in changing course. Like most such groups, they were modeled on the experience of lawyers in the civil-rights movement, when many of the racial gains of the time had to be attained through the protections of the legal process, rather than through the ballot box.

Gay marriage became the focus because it "provided a vocabulary in which non-gay people talk about larger and important questions - questions of love and commitment and dedication and self-sacrifice and family," Evan Wolfson, an attorney at Lambda at the time told Chauncey. By using that vocabulary, he and other activists understood, "we make it easier for non-gay people to understand who we are."

Realizing that the federal courts were probably too conservative to promote such a change, the lawyers involved focused on state courts. And it worked, albeit slowly.

The steps forward hardly have come in a straight line; Congress passed the Defense of Marriage Act in 1996, and several states have explicitly banned same-sex marriage via referenda. For those dealing with discrimination independent of their ability to wed, too, this particular goal does little concrete.

Still, the strategy so far seems to have been a sound one, both in the courts and in the court of public opinion.

It's not just that same-sex marriage is now legal in four states (Massachusetts, Iowa, Vermont, and Connecticut, with California somewhat up in the air). The cause of same-sex marriage has, over time, transformed what had seemed to many Americans like a divisive fringe concern into a middle-of-the-road movement that seeks to embrace one of the bedrock conservative and mainstream values of the culture.

This is how history is made. And politicians and the ballot box had virtually nothing to do with it.

To read the "Stark Ravings" blog, go to

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