Harvard Law School_ the Road to Marriage Equality - Harvard Law Today

8/20/2019 Harvard Law School_ the Road to Marriage Equality - Harvard Law Today

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30/7/2015 H ar var d Law School : The r oad to m ar ri age equal ity - H ar var d Law Today

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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http://today.law.harvard.edu/feature/harvard-law-school-the-road-to-marriage-equality/ 2

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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30/7/2015 Har var d Law School: The r oad to mar ri age equali ty - Har var d Law Today


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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http://today.law.harvard.edu/feature/harvard-law- school-the-road-to-marr iage-equality/ 4

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


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/


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&



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


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

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