The ACLU’s Long Fight For Marriage Equality
Sasha Issenberg on Constitutional Rights in the 80s and the Shifting Definitions of Marital Union
In the fall of 1985, ACLU associate director Alan Reitman tasked intern Sharon Soloff with researching the legal prospects for recognizing same-sex couples. With that assignment, the American Civil Liberties Union became the first major organization to seriously explore the question. Gay marriage had been the pursuit of lone plaintiffs, operating on their own initiative without a legal strategy or the institutional and financial backing necessary for what would ultimately require major constitutional litigation. What Soloff found submerged in the recesses of state and federal case law was not so much a living history of a legal idea but a time capsule from an earlier era of movement activism that The Advocate in 1970 described as a “gay-marriage boom.”
Two months after Jack Baker and Michael McConnell applied for their license in Minnesota that year, a lesbian couple in Kentucky did the same thing, and sued the county clerk who rejected their application. Both circuit and appellate courts backed the clerk, declaring that “female persons are incapable of entering into a marriage as that term is defined according to common usage,” as the appeals court summarized. It ruled that the “relationship proposed by them does not authorize issuance of a marriage license because what they proposed is not a marriage.”
Not long after, a young Seattle couple living together in a gay commune followed their lead. Encouraged by a sympathetic state legislator who told them that Washington laws now defined marriage in gender-neutral terms as a contract between two people, Paul Barwick and John Singer sued the county auditor for unconstitutional discrimination. Two separate courts ruled otherwise, with the state appeals court justifying the exclusion of same-sex couples “based upon the state’s recognition that our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children.” Unable to afford to continue their appeals and lacking a broader legal strategy, Barwick and Singer abandoned their case, as Tracy Knight and Marjorie Jones had at the same stage in Kentucky.
Circumstances did not change much over the next decade. The legal rationales that led plaintiffs to demand equal marriage rights retained their constitutional merit, Soloff concluded, but courts relied on all the same justifications for rejecting them. “While many state statutes are silent on the issue, some states’ statutes specifically prohibit marriage between persons of the same sex,” she summarized in a memo delivered to the Equality Committee in February 1986. “No court has taken the position that the state prohibition of homosexual marriage is unconstitutional.”Gay marriage had been the pursuit of lone plaintiffs, operating on their own initiative without a legal strategy or the backing necessary for what would require major constitutional litigation.
Did the ACLU really intend to fight for homosexual marriage? Soloff’s research revealed that none of the gay groups that usually supported the ACLU had endorsed such a position, and judges scoffed at plaintiffs who suggested it. Even if successful, such a policy would in effect compel gays to marry in order to have their relationships recognized. What if the ACLU could work to secure for gays and lesbians some, if not all, of the most important rights and benefits accorded to straight couples? Would that be good enough?
When the committee met a week later, its members overwhelmingly found themselves in agreement with the spirit of the resolution the convention had passed that summer. But as soon as the ACLU began debating the question of same-sex marriage, there was plenty of ambivalence. Was a marriage license a privilege, distinct from the material and legal benefits that accompanied it, demanding equal access? Shouldn’t civil libertarians, another ventured, be more concerned with stripping the state of its ability to confer favored status on couples rather than with reaffirming it? Wasn’t the real issue not so much a matter of laws that were unfair to gay couples but to all single people?
This debate missed the point, said Adrienne Asch, a bioethicist who took the lead on disability-discrimination issues largely as a result of her own experience as a blind woman. The fact remained that if heterosexuals were given the choice and homosexuals weren’t, it meant that gays were being denied their constitutional right to equal protection—precisely the type of discrimination that the ACLU existed to address.
When the matter came to a vote, 12 of the 14 committee members present supported rewriting the first sentence of the resolution to make a straightforward declaration: “The ACLU supports the legal recognition of gay and lesbian marriage.” As it explained the reasoning to the board, “the Committee thought that a statement clarifying the Biennial Conference resolution to mean gay and lesbian marriages would be a stronger and more preferable policy statement.” The resolution still contained what committee members had taken to calling the “laundry list” of specific rights and benefits, which had been so hastily thrown together at the conference workshop. It was “necessarily incomplete” and even—in the cases of adoption and airfares, for instance—inaccurate, so the committee voted to strike the list altogether.
In October 1986, the national board of the ACLU passed the committee’s redrawn resolution: “The ACLU supports the legal recognition of gay and lesbian marriage. Such recognition is imperative for the complete legal equality of lesbians and gay men and to qualify gay men and lesbian couples for all of the benefits, rights and responsibilities of married persons.” The ACLU had become the first civil-rights organization in the United States to endorse gay-marriage rights as a matter of official policy. The New York Times devoted an article to the news, and a White House librarian contacted the ACLU to request a copy of the resolution.
But within the ACLU priorities remained the same. When attorney Bill Rubenstein of the ACLU’s Gay and Lesbian Rights Project described “the most important single step forward in American law toward legal recognition of lesbian and gay relationships” in 1989, he was referring to the case he had just argued before a sympathetic New York state appeals court on behalf of Miguel Braschi, who for more than a decade had shared an apartment with his lover Leslie Blanchard, with the latter’s name on the lease. After Blanchard died of AIDS, the couple’s landlord moved to evict Braschi, who sued under New York City rent-control laws that allow a member of the tenant’s immediate family to remain in the apartment. By a 4–2 vote, New York’s Court of Appeals accepted Rubenstein’s logic, with Judge Vito J. Titone writing that a “realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long-term and characterized by an emotional and financial commitment and interdependence.’’
Despite the momentousness of the decision, it would have little broader impact. Rubenstein had expressly chosen to argue to Titone that Braschi qualified merely as a “family member,” without claiming that their relationship was a spousal equivalent. In so doing, Rubenstein had passed on the opportunity to mount a broader constitutional challenge to laws that had a discriminatory impact on gay couples. “People are being evicted from their apartments. This isn’t a time to be rolling the dice for a bigger victory,” says Rubenstein. “I think there was a consensus that we have a lot going on right now—and it might be counterproductive.”
Rubenstein had no plans to push courts for parallel recognition in areas beyond the city’s unusual housing laws. In fact, to the extent that Rubenstein could detect any political pressure within the gay community on the issue, it worked against formalizing the status of same-sex couples. Some of the most vexing opposition to a proposed municipal domestic-partnership law had come from gays and lesbians who feared that registering for benefits would allow city authorities to assemble a list of gay couples for a later, nefarious purpose. When Rubenstein, along with fellow ACLU attorney Matt Coles, presented their paper “Rights of Gays and Lesbians” at the 1989 biennial conference, there was no mention of challenging marriage laws.
As an addendum, Rubenstein and Coles included a copy of the newly revised (and renumbered) Policy #264, which now declared that “the ACLU supports the legal recognition of gay and lesbian relationships.” Yet in asking local affiliates to “look for the following types of cases,” they said nothing about marriage. Instead, more modest cases along the lines of Braschi—where amorphous definitions like “family” or “spouse” could be contested with regard to specific benefits—were the priority. “The board would pass these policies,” Rubenstein explains. “It was rare I would look at what the ACLU policy book said. I pretty much could do whatever I want.”
The only thing that could force the ACLU’s hand—or shake the consensus that had hardened among its allies—would be the unstudied gesture of a naïf in their midst, one unburdened with the math of trade-offs or the duty of long-term strategizing. “There were these single-shot people who are after publicity, and uniformly focused on one thing,” Rubenstein says, with grudging awe. “You need gadflies to keep things alive.”Some of the opposition had come from gays and lesbians who feared that registering for benefits would allow city authorities to assemble a list of gay couples for a later, nefarious purpose.
One month before Bill Woods prepared to pull his marriage-office antics, a young male couple in Washington, DC, did something very similar. On November 13, Craig Dean and Robert Gill had requested a marriage license from the clerk of the superior court of the District of Columbia. At first the clerk obliged, marking Gill as the couple’s bride, but eventually backtracked and denied their application. Less than two weeks later, the pair sued the district for a marriage license and $1.25 million in damages. Unlike the emerging Hawaii case, which was covered in Honolulu’s two newspapers but never noticed elsewhere beyond a few sentences in USA Today’s roundup of state news, the Washington case immediately won international attention.
On paper, Dean v. DC seemed like a well-engineered test case. Dean and Gill were a clean-cut, telegenic young couple, and Washington had one of the most liberal political cultures of any city in the country. Its Human Rights Act prohibited discrimination based on sexual orientation, and Mayor Marion Barry was celebrated nationwide as a gay-rights champion. In addition, recognizing gay marriage in the capital would, in a sense, give any American instant access to the institution: the District had no residency requirement for marriage applicants.
Yet anyone who looked more closely at the case could see how poorly conceived it was. Washington’s liberalism rarely rose from street level: the legal system funneled immediately into federal courts, and Congress could rewrite its laws at their whim. In that respect, it was hard to imagine the District as a place that—even if a judge offered a near-term judicial victory—could sustain the win. Critics of the Dean case feared it would result in an unfriendly decision in federal court that would be cited elsewhere. “Better to establish a favorable precedent in other jurisdictions and then come back to the District,” Lambda Legal executive director Tom Stoddard told the Washington Post, declaring “fervent support” for the couple’s goals but bluntly dismissing their tactics as “shortsighted” and potentially self-defeating. “What happens to these two men will affect every other gay man and lesbian in the United States. They therefore have a responsibility to confer with their colleagues.”
Stoddard’s sniping was the most public scolding the plaintiffs received from those they expected would be allies. (Dean accused “people who call themselves activists and leaders” of “acting like a gay mafia to shut us out.”) Most responded to Dean v. DC with pointed silence, reflecting a consensus among gay-rights activists and their organizations. Bringing a marriage case anywhere in the United States was not only hopeless at the moment, they believed, but would likely undermine other goals within closer reach.
Excerpted from The Engagement: America’s Quarter-Century Struggle Over Same-Sex Marriage by Sasha Issenberg. Copyright © 2021 by Sasha Issenberg. Excerpted by permission of Alfred A. Knopf, a division of Penguin Random House LLC. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.