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8/20/2019 Harvard Law School_ the Road to Marriage Equality - Harvard Law Today
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http://today.law.harvard.edu/feature/harvard-law-school-the-road-to-marriage-equality/
today.harvard.edu
Credit: AP Photo/Jacquelyn Martin
Since at least 1983, when a Harvard Law student wrote a third-year paper 1
exploring a human rights argument for same-sex marriage, HLS has
participated in anticipating, shaping, critiquing, analyzing and guiding the
long path toward marriage equality.
In the 1980s, Harvard Law students wrote papers and student notes debating the pros
and cons of a constitutional right to same-sex marriage in the Due Process and Equal
Protection Clauses. Those students graduated and became advocates who argued
before legislatures and courts, including the U.S. Supreme Court, both for and against
Harvard Law School: The road to
marriage equalityBy LANA BIRBRAIR '15, June 26, 2015
Theme: Teaching & Learning
http://today.law.harvard.edu/https://www.youtube.com/watch?v=CldQAUDER50https://www.youtube.com/watch?v=AxtO1QloBiwhttp://freemarry.3cdn.net/73aab4141a80237ddf_kxm62r3er.pdfhttps://www.youtube.com/watch?v=CldQAUDER50http://today.law.harvard.edu/theme/teaching-learning/https://www.youtube.com/watch?v=CldQAUDER50http://today.law.harvard.edu/https://www.youtube.com/watch?v=AxtO1QloBiw
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legal recognitions of same-sex marriage. Others eventually became judges whose
decisions created a legal basis for marriage equality, and some became scholars whose
contributions inspired a new generation of students, advocates, and judges to think
critically and creatively about LGBT rights. Together, they helped shape the course of a
social and legal movement that surprised many by its swift changes in both public
perception and legal doctrine.
* * *
1983:
Evan Wolfson ’83 Pens Prescient Paper
In 1983, a decade after a fledgling movement for same-sex marriage came to a grinding
halt in the courts, Harvard Law School third-year student Evan Wolfson asked a
question that few in the mainstream legal world were seriously deliberating: Does the
Constitution, and its myriad explicit and implied protections of expression, privacy
and individualistic self-fulfillment, guarantee the right to same-sex marriage?
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Many of the
arguments Wolfson made then, grounded in a historical framework of marriage as a
human rights issue, would later shape legal arguments that would sweep the courts in
the decades to come. Twenty years later, Wolfson built on his unpublished thesis in the
book “Why Marriage Matters: America, Equality, and Gay People’s Right
to Marry.” 2 Published the year after Massachusetts became the first – and at that
point only – state to legalize same-sex marriage, the book provided a legal analysis for
why marriage should be a constitutional right for all.
* * *
1985:
Carol Steiker ’86 Explores Constitutional Status of Gay
Persons
In “The Constitutional Status of Sexual Orientation: Homosexuality as a
http://www.jstor.org/stable/1340944?seq=1#page_scan_tab_contentshttp://books.simonandschuster.com/Why-Marriage-Matters/Evan-Wolfson/9780743264594http://www.jstor.org/stable/1340944?seq=1#page_scan_tab_contents
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Carol Steiker
Suspect Classification,” 3 a widely
cited student note for the Harvard Law
Review 4, Carol Steiker ’86 5, now a
professor at Harvard Law, argued that
legal classifications based on sexual
orientation should be subject to
heightened scrutiny beyond the “rational
basis” test then used by courts. Steiker
argued that the most commonly asserted
constitutional foundations for gay rights
– the right to privacy and the First
Amendment guarantee of free speech andexpression – had failed to overcome
inequality, and that an equal protection
approach would provide a richer
framework to address discrimination
against gay people. Equal Protection – as
well as the Due Process Clause – would
later serve as a chief tool for courtsfinding a constitutional right to same-sex marriage.
* * *
1986:
Laurence Tribe ’66 Argues to Strike Down Georgia Sodomy
Laws
In 1986, the Supreme Court heard Bowers v. Hardwick 6, in which Laurence
Tribe ’66 7 represented Michael Hardwick, a man who had been arrested by Georgia
police under a state statute criminalizing sodomy. In a 5-4 decision, the Court upheld
http://www.jstor.org/stable/1340944?seq=1#page_scan_tab_contentshttp://www.oyez.org/cases/1980-1989/1985/1985_85_140http://hls.harvard.edu/faculty/directory/10840/Steikerhttp://www.jstor.org/stable/1340944?seq=1#page_scan_tab_contentshttp://harvardlawreview.org/http://hls.harvard.edu/faculty/directory/10899/Tribe
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Georgia’s law, finding that prescriptions against sodomy “have ancient roots,” against
which an argument for a constitutional right to engage in homosexual sex was, “at
best, facetious.”
(In 2003 the Supreme Court overruled Bowers in Lawrence v. Texas 8, a case for
which Tribe wrote the ACLU’s amicus curiae brief 9 supporting Lawrence.)
Credit: Bill WilsonLaurence Tribe, who argued the Hardwick case, answers press questions after the oral arguments.
March 31, 1986
* * *
1989:
William Rubenstein ’86 Wins Legal Recognition of Gay
Couples as Families
http://www.oyez.org/cases/2000-2009/2002/2002_02_102https://www.aclu.org/sites/default/files/field_document/asset_upload_file539_21852.pdf
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In 1989, William B. Rubenstein ’86 10, now a professor at Harvard Law
School, convinced a New York court that the surviving partner and caretaker of a man
who had died of AIDS counted as “family” under the state’s law, and could thus
continue living in a rent-controlled apartment that had belonged to his
partner. In Braschi v. Stahl Associates 11, New York became the first state
supreme court to recognize a gay couple as a family, forging an important precedent at
a time when there was almost no legal recognition of same-sex couples. After
graduating from HLS, Rubenstein was a staff attorney and later director of the American Civil Liberties Union’s National LGBT and AIDS Projects, and in 1993
authored the first casebook on LGBT law, now in its fifth edition and known as “Cases
and Materials on Sexual Orientation and the Law.” 12
* * *
http://hls.harvard.edu/faculty/directory/10742/Rubensteinhttps://scholar.google.com/scholar_case?case=12926271609847577161&q=Braschi+v.+Stahl&hl=en&as_sdt=40000006&as_vis=1http://www.amazon.com/Materials-Sexual-Orientation-American-Casebook/dp/0314290893/ref=dp_ob_title_bk
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Credit: Marilyn Humphries
Evan Wolfson ’83 with two of the plaintiffs in Baehr V. Miike, Genora Dancel
(left) and Ninia Baehr
1993:
Evan Wolfson ’83 Joins Landmark Hawaii Litigation for Legal
Right to Marriage
In the mid-1990s, Evan
Wolfson
participated in
landmark
litigation,
serving as co-
counsel in
Baehr v.
Lewin, later
Baehr v.
Miike, a
Hawaii case in
which the
state’s
supreme court
held that the state’s prohibition on same-sex marriage was discriminatory. The state’s
highest court sent the case back to trial, where a lower court found in 1996 that the
state had no rational reason to deny marriage licenses to same-sex couples. Backlash
against the decision later led the state to amend its constitution to cement a ban on
same-sex marriage, and inspired Congress to pass the Defense of Marriage Act in
1996 13. In 2003, Wolfson would go on to form the national advocacy group Freedom
to Marry 14.
* * *
http://www.gpo.gov/fdsys/pkg/BILLS-104hr3396enr/pdf/BILLS-104hr3396enr.pdfhttp://www.freedomtomarry.org/
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1996:
Jean Dubofsky ’67 Lands the First LGBT Rights Win at the
Supreme Court
In 1996, after Colorado
voters unexpectedly passed Amendment 2 to the state Constitution, which would have
prevented local governments from recognizing homosexuals as a protected class,
activists asked Jean Dubofsky ’67, an appellate attorney who had been the first woman
to serve on the Colorado Supreme Court, to challenge the law. Although her goal was
to get rid of Amendment 2 at the state level without landing in the U.S. Supreme
Court, the Court eventually took the case, Romer v. Evans, 15 and ultimately struck
down the amendment as failing under the rational basis test of the Equal Protection
Clause, marking the first win for LGBT rights in the Supreme Court.
It also sparked the beginning of a line of opinions by Justice Anthony Kennedy ’61 that,
unlike the Court in Bowers, treated gay people as individuals with rights and dignity.
“If you look back at Bowers and all the federal decisions after, their language was just
horrific,” Dubofsky said. “They belittled people and made their claims seem frivolous
and ridiculous. Romer treated people as if they had some dignity. I couldn’t believe it,
http://www.oyez.org/cases/1990-1999/1995/1995_94_1039
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Credit: Martha Stewart
Professor Janet Halley
when I read the opinion, how much of a sea change it was.”
* * *
2001:
Harvard Scholars Question Marriage as the Unifying Goal for
LGBT Rights
As the legal fight for same-sex marriage began to
trickle through the courts, Harvard Law Professor
Janet Halley examined in 2001 what she viewed as
the troubling rhetoric increasingly adopted by
advocates for gay marriage. In an essay titled “Recognition, Rights, Regulation,
Normalisation: Rhetorics of Justification in the Same-Sex Marriage Debate,” Halley
expressed concerns that although limiting marriage to heterosexual couples indeed
deprecated the relationships of gay couples who wished to marry, the fight for equality
had too readily adopted language emphasizing the normative value of traditional
coupling. Instead, Halley argued, the movement should question widespreadassumptions about marriage and monogamy, leaving the door open for a broader
range of non-traditional relationships.
In 2003, then-3L Douglas NeJaime published an article in the Harvard Civil
Rights-Civil Liberties Law Review 16 titled “Marriage, Cruising, and Life in
Between” 17that explored a range of ideological positions through case studies of
some of the leading gay-based organizations. NeJaime expressed concerns that thepush for marriage would homogenize the LGBT movement and leave behind those
who did not wish to advocate for traditional relationships or gay assimilation.
* * *
Halley_Janet
http://www.law.harvard.edu/students/orgs/crcl/vol38_2/nejaime.pdfhttp://harvardcrcl.org/
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Credit: Harvard Law School YearbookDouglas NeJaime ’03
2003:
Chief Justice Margaret Marshall Pens
Massachusetts Opinion Legalizing
Same-Sex Marriage
On November 18, 2003, Massachusetts Supreme
Judicial Court Chief Justice Margaret Marshall wrote
the majority opinion 18 for a divided court holding
that the state’s ban on gay marriage violated the equal
protection and due process rights of same-sex couples
under the state constitution, making Massachusetts
the first state to legalize same-sex marriage. Marshall,
who in 2012 joined Harvard Law 19as a senior
research fellow and lecturer, wrote a much-lauded and
frequently quoted opinion that extolled marriage as a “deeply personal commitment to
another human being and a highly public celebration of the ideals of mutuality,
companionship, intimacy, fidelity, and family.”
* * *
2012:
Michael Klarman Reflects on Rapid Change
After dozens of states had legalized same-sex marriage – whether through legislation
or the courts – Harvard Law Professor Michael Klarman 20 authored “From the
Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex
Marriage.” 21
Klarman, who frequently writes about social backlashes that follow controversial court
decisions, provided an overview of the growing legal acceptance of same-sex marriage
https://global.oup.com/academic/product/from-the-closet-to-the-altar-9780199922109?cc=us&lang=en&http://masscases.com/cases/sjc/440/440mass309.htmlhttp://today.law.harvard.edu/chief-justice-margaret-h-marshall-will-join-hls-faculty/http://hls.harvard.edu/faculty/directory/10481/Klarman
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Credit: Martha Stewart
and the role courts played
in sparking or responding to
social change.
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Credit: Phil Farnsworth
Professor Michael Klarman
September 2013:
Klarman, along with HLS Professors Tomiko Brown-Nagin, Charles Fried, and Visiting Professor Justin Driver offered
their thoughts on a trio of critical U.S. Supreme Court rulings involving same-sex marriage, voting rights, and affirmative
action.
* * *
2013:
Harvard Law Professors and Alumni Battle Before the
Supreme Court
On June 26, 2013, the Supreme Court decided United States v. Windsor 22, which
http://www.oyez.org/cases/2010-2019/2012/2012_12_307
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challenged Section 3 of the Defense of Marriage Act, and Hollingsworth v. Perry 23
, a challenge to California’s Proposition 8. Months earlier, the Supreme Court had
tapped Harvard Law Professor Vicki Jackson 24 to argue that the Court lacked
jurisdiction to hear Windsor, an argument that neither party to the case had
presented, and which the Court ultimately rejected before ruling on the merits.
Paul Clement ’92 25 argued for the House of Representatives’ Bipartisan Legal
Advisory Group, a contingent of mostly Republican representatives who argued to
uphold the Constitutionality of DOMA after President Barack Obama ’91’s
administration refused to continue doing so. In addition, Professors Elizabeth
Bartholet ’65 26, Lawrence Lessig, 27 and Laurence Tribe ’66 28, Professor
Emeritus Frank Michelman ’60 29, and Lecturers Kevin Russell and Benjamin W.
Heineman Jr., filed amicus briefs in the two major cases.
* * *
2015:
Mary Bonauto and Douglas Hallward-Driemeier ’94 Call for
http://hls.harvard.edu/faculty/directory/10519/Lessig/http://hls.harvard.edu/faculty/directory/10048/Bartholethttp://today.law.harvard.edu/feature/defending-unpopular-positions-is-what-lawyers-do-says-paul-clement-92/http://hls.harvard.edu/faculty/directory/10899/Tribehttp://hls.harvard.edu/faculty/directory/10425/Jacksonhttp://hls.harvard.edu/faculty/directory/10585/Michelmanhttp://www.oyez.org/cases/2010-2019/2012/2012_12_144
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full Legal Recognition
Litigators across the country vied for the
opportunity to argue for a constitutional
right to same-sex marriage in some of the
most anticipated cases in LGBT and civil
rights history. In January 2015, the
Supreme Court granted certiorari to
Obergefell v. Hodges 30and its
companion cases to answer the question whether the Constitution required states to
perform same-sex marriages, or whether the Full Faith and Credit Clause required
states to, at the very least, recognize same-sex marriages performed in other states.
Mary Bonauto, who was also lead counsel for the couples seeking the right to marry in
Goodridge and has taught an LGBT reading group at Harvard 31 in recent years,
was ultimately picked for the task of arguing the first question, while Douglas
Hallward-Driemeier ’94, a partner at law firm Ropes & Gray, took on the Full Faith
and Credit question. On April 28, 2015, the pair faced the Supreme Court justices,
arguing, as Bonauto put it, that the true question was not whether the government
should decide that gay people should be able to marry, but that it was for ” the
individual to decide who to marry.”
November 2014:
In a conversation with Dean Martha Minow at HLS, Mary Bonauto reflects on a quarter century of seeking equal
treatment under law.
* * *2015:
Justice Anthony M. Kennedy ’61 Writes Majority Opinion
Affirming Marriage Equality
http://hls.harvard.edu/academics/curriculum/catalog/index.html?rows=10&year=2015-2016http://www.oyez.org/cases/2010-2019/2014/2014_14_556
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U.S. Supreme Court Justice Anthony M.
Kennedy ’61
On June 26, 2015, the Supreme Court ruled in a
5-4 decision that the Constitution guarantees a
nationwide right to same-sex marriage. Justice
Anthony M. Kennedy ’61 delivered the opinion
32 of the Court in the landmark decision. He was
joined by Justices Stephen Breyer ’64, Ruth
Bader Ginsburg ’56-’58, Elena Kagan ’86, and
Sonia Sotomayor.
* * *
Links
1. http://freemarry.3cdn.net/73aab4141a80237ddf_kxm62r3er.pdf
2. http://books.simonandschuster.com/Why-Marriage-Matters/Evan-Wolfson/9780743264594
3. http://www.jstor.org/stable/1340944?seq=1#page_scan_tab_contents
4. http://harvardlawreview.org/
5. http://hls.harvard.edu/faculty/directory/10840/Steiker
6. http://www.oyez.org/cases/1980-1989/1985/1985_85_140
7. http://hls.harvard.edu/faculty/directory/10899/Tribe
8. http://www.oyez.org/cases/2000-2009/2002/2002_02_102
9. https://www.aclu.org/sites/default/files/field_document/asset_upload_file539_21852.pdf
10. http://hls.harvard.edu/faculty/directory/10742/Rubenstein
11. https://scholar.google.com/scholar_case?case=12926271609847577161&q=Braschi+v.+Stahl&hl=en&as_sdt=40000006&as_vis=1
12. http://www.amazon.com/Materials-Sexual-Orientation-American-Casebook/dp/0314290893/ref=dp_ob_title_bk
13. http://www.gpo.gov/fdsys/pkg/BILLS-104hr3396enr/pdf/BILLS-104hr3396enr.pdf
14. http://www.freedomtomarry.org/
15. http://www.oyez.org/cases/1990-1999/1995/1995_94_1039
16. http://harvardcrcl.org/
http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf
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17. http://www.law.harvard.edu/students/orgs/crcl/vol38_2/nejaime.pdf
18. http://masscases.com/cases/sjc/440/440mass309.html
19. http://today.law.harvard.edu/chief-justice-margaret-h-marshall-will-join-hls-faculty/
20. http://hls.harvard.edu/faculty/directory/10481/Klarman
21. https://global.oup.com/academic/product/from-the-closet-to-the-altar-9780199922109?cc=us&lang=en&
22. http://www.oyez.org/cases/2010-2019/2012/2012_12_307
23. http://www.oyez.org/cases/2010-2019/2012/2012_12_144
24. http://hls.harvard.edu/faculty/directory/10425/Jackson
25. http://today.law.harvard.edu/feature/defending-unpopular-positions-is-what-lawyers-do-says-paul-clement-92/
26. http://hls.harvard.edu/faculty/directory/10048/Bartholet
27. http://hls.harvard.edu/faculty/directory/10519/Lessig/
28. http://hls.harvard.edu/faculty/directory/10899/Tribe29. http://hls.harvard.edu/faculty/directory/10585/Michelman
30. http://www.oyez.org/cases/2010-2019/2014/2014_14_556
31. http://hls.harvard.edu/academics/curriculum/catalog/index.html?rows=10&year=2015-2016
32. http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf