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The Legal Right to Marry

June 27, 2015

When I started law school in 1978, a gay law graduate’s legal right to admission to the bar was recognized in just two states – New York, fortunately for me, being one of them. In 48 states and the District of Columbia, it was still at least theoretically possible to deny bar admission to lesbians and gay men on the ground that homosexuality demonstrated lack of “good moral character,” one of the criteria for admission.

Indeed at that time, only the District of Columbia had a law on the books prohibiting employment discrimination against gay people. (Pennsylvania prohibited anti-gay discrimination only in state employment.) So even once a gay law student graduated and was admitted to the bar, she generally had no legal right to actually get a job.

Furthermore, being gay meant in those days that a person was likely to be a criminal, because gay sex in those days was a crime in almost every state, including New York. For my first summer internship, in 1979, I worked for the Lambda Legal Defense & Education Fund, a gay rights organization then led by a lawyer named Margot Karle. One of the cases I worked on that summer was People v. Onofre.

Ronald Onofre had a relationship with another man. At some point, the other man decided that sex with men was wrong, but that his involvement with Mr. Onofre could be excused if he hadn’t consented. He submitted a rape complaint to the police, and Mr. Onofre was arrested.

As luck would have it, the couple had taken some photographs of themselves. I personally never saw the photos, but, as Ms. Karle put it, the photos left no doubt that the relationship had been consensual. (I’ve always imagined it was the smiles on their faces.) But instead of charging the complainer with perjury or filing a false complaint, the police charged Mr. Onofre with consensual sodomy, which was then a crime under section 130.38 of New York state’s penal law.

Mr. Onofre challenged the constitutionality of that law. He lost in the Onondaga County trial court, and it was his appeal that I worked on in the summer of 1979. Mr. Onofre won his appeal, and he also won the prosecution’s further appeal to New York’s top court, the Court of Appeals, in 1980.

As it happens, my legal career took me to the New York state attorney general’s office in the mid-1980s. I was assigned to a division that defended state agencies and officials in litigation. But prestige in the office came from the progressive, reform-minded litigation the office did under then-Attorney General Robert Abrams. So lawyers in my division were encouraged to keep a look-out for litigation ideas that would shed glory on our division’s managers.

In 1985, the U.S. Supreme Court agreed to decide whether private, consensual sodomy could constitutionally be criminalized. I proposed that Attorney General Abrams file a friend of the court brief on behalf of Michael Hardwick, a Georgia man who had been arrested in his own bedroom on charges of consensual sodomy, an offense then punishable under Georgia law by imprisonment for up to 20 years.

We wrote and submitted our brief, but in a 5 – 4 decision issued 29 years ago next week, Justice Byron White rejected the assertion of a man’s constitutional right to engage in private, consensual sex with another man. Justice White called the claim “facetious.” To be “facetious” is to treat a serious subject with deliberately inappropriate humor – to be flippant. In other words, Justice White was saying that the claim of constitutional right was not even sincerely asserted; the whole case was a sick joke. That was in 1986.

I have noted that, especially with important social issues, the Supreme Court often gets it wrong before it gets it right. Not until 2003 did the Supreme Court get it right – in Lawrence v. Texas, when Justice Anthony Kennedy wrote a 6 – 3 decision finding the constitutional claim not only not “facetious,” but in fact correct. Justices Antonin Scalia, William Rehnquist, and Clarence Thomas bitterly dissented. It was very important to them that states retain the legal ability to throw gay people in jail for having sex in private.

By 2003, the question of same-sex marriage had developed into a serious national issue. In 1993, the Hawaii Supreme Court ruled that exclusion of same-sex couples from legal marriage could only be justified by “compelling evidence” under the judicial standard of “strict scrutiny.” The Court sent the case back to the trial court to determine whether the state had “compelling evidence” that could survive “strict scrutiny.”

The Hawaii Supreme Court did not then, and never did, find a legal right for same-sex couples to marry. But the mere possibility that it might sent anti-gay forces into national paroxysms, resulting in the infamous Defense of Marriage Act, passed by veto-proof majorities in both houses of Congress, and signed into law by President Bill Clinton in 1996. DOMA precluded the federal government from honoring any same-sex marriage, and authorized states to refuse to honor any same-sex marriage. Mini-DOMAs proliferated across the states in a panicked defense against same-sex couples facetiously massing at the gates.

When Justice Kennedy wrote the 6 – 3 majority opinion in Lawrence v. Texas, he had already written a pro-gay decision in Romer v. Evans. That case involved a provision in the Colorado constitution, adopted by popular referendum, that precluded municipalities from enacting any law that would give protection to gay people against discrimination. Justice Kennedy wrote for a 6 – 3 majority in the Lawrence case, concluding that Colorado’s constitution uniquely burdened gay people’s ability to change the law through political activism, that the provision could have been motivated only “animus” toward gay people, and that a “desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”

The Romer v. Evans case was something of an outlier; the Colorado constitutional provision involved was so far out there that Justice Kennedy’s decision was not taken as an indication of any greater interest in the constitutional rights of gay people. But when Justice Kennedy – a lifelong Republican and a Ronald Reagan appointee – wrote the majority decision in Lawrence v. Texas, attention was paid.

At that point the path to constitutional recognition of same-sex marriage started to become clear, and Justice Kennedy was the North Star by which the path was navigated. Challenges to DOMA were argued in terms intended to appeal to Justice Kennedy’s rationale in Romer: that uniquely burdening the interests of gay people to obtain legal protections through political activity is constitutionally impermissible.

And sure enough, in 2013, Justice Kennedy wrote the decision by which the Supreme Court, 5 – 4, struck down the DOMA provision that barred the federal government from recognizing same-sex marriages. Justice Scalia famously predicted that constitutional recognition of same-sex marriage would soon and surely follow, and, of course, he was right. Just two years later, Justice Kennedy has written another 5 – 4 majority decision concluding that the United States Constitution precludes the states from excluding same-sex couples from legal marriage.

There was a certain logic to the Court deciding that private, consensual gay sex is constitutionally protected before deciding that same-sex marriage is constitutionally protected: it would be a little odd to say that a couple has a constitutional right to get married but not a constitutional right, as they used to say, to consummate the marriage. But even today, the federal government and 18 states have no laws precluding employment discrimination against gay people. Five more states have laws prohibiting anti-gay employment discrimination only in state employment. Only 17 states prohibit housing discrimination against gay people.

In the short span of my legal career, in just the last 37 years, gay people have made remarkable gains, and I think the rapid growth in popular acceptance of same-sex marriage stands as an excellent proxy measure of those gains.

But there remains work to do. Although we now enjoy a nationally recognized legal right to get married and have sex, in much of the country we have no legally recognized right to obtain housing or employment. We can count on conservatives to push hard to wall off the rights we have won, as they are doing with laws to allow public servants to deny marriage licenses to those whose marriages offend their religious sensibilities – that is, same-sex couples.

Yesterday’s victory was enormously important, but the battle is not yet won.

  1. Thomas Sheckler permalink

    Excellent history and clearly written.

    I regret only that your posts are infrequent.


    • Well thanks, Thomas. I’m glad you enjoy my posts, even if there aren’t all that many of them. I’ll see if I can pick up the pace.

      Ecce Homo


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