Marriage equality case 5 years later: Can that victory be replicated for racial justice?

One single quill hangs on the wall of my home office. It’s the badge you collect from counsel’s table at the Supreme Court of the United States. A bright, white feather intended to evoke the magnanimity of the high court. A trinket to inspire the awe and respect due the institution. A few cells plucked from the head of a great, dying bird, now hobbling into the woods, pretending it isn’t wounded, trying to keep up appearances and fend off scavengers all at once. The quill is sharpened to a point, but it’s too fragile to convey the written word. It’s not meant to be functional, but to remind the owner of a certain mythology; one of perfect American equality, and of the court’s role in shaping it.

I subscribed to that mythology for an embarrassingly long time. For much of my career, I earnestly believed that social warfare could be waged in the courthouse. Isn’t that what happened in Brown v. Board of Education? Loving v. Virginia? Roe v. Wade? From day one in law school, maybe even in high school civics, you are taught that change blossoms only when a brave group of intrepid lawyers takes on the powers-that-be in the one place where Americans are all equal: a court of law.

And so when my law firm was presented with the opportunity to represent six couples affected by Kentucky’s marriage ban, we took it. By that time, the case had already been filed, and motions were pending to have it thrown out. There wasn’t time to think about a 50-state strategy or to ruminate on how awful the courts are, or to seek permission from national organizations. We had clients who needed help; to hell with everything else.

My naiveté served me well. We went to the Supreme Court in 2015. We won. 

I got my feather and hung it on my wall. Our clients, and millions of other people, can get married. I’ve been to lots of weddings over the last five years. I’ve even officiated a few. It feels good.

I suppose it’s for the best that I didn’t recognize then what I see clearly now: Of all the ways to try to bring about social change, filing a lawsuit and leaving it to a judge in the Midwest, or the South, or anywhere, is among the worst. As evidence, I offer a detail that is often lost in the retelling of the marriage cases: We lost. We lost in the court of appeals on our way to the Supreme Court. We lost in the court that presides over Kentucky, Ohio, Michigan and Tennessee. We lost in a court that hears hundreds of cases every year on police misconduct, inmates’ rights, immigration detention, free speech, abortion and every other hot-button issue anyone has ever cared about. We lost, just like the national organizations said we would. We lost, just like everyone loses. And since the Supreme Court takes so few cases, losing at that court is the end of the line for most people seeking to make change through what we think of as proper, respectable channels.

By the time we lost in the lower court, pro-marriage activists were accustomed to losing legal battles. 

When Richard Baker and James McConnell applied for a marriage license in Minnesota in 1970, the U.S. Supreme Court issued a one-line opinion declining to hear the case because, in layman’s terms, it was too ridiculous for them to waste time on. This was the universal position of every American court for decades thereafter. But somehow, more than 40 years later, the same Supreme Court, reading the same amendment of the same Constitution, decided we should win. This outcome, it must be confessed, was so improbable that it was practically a cosmic accident. Had we ended up in the Supreme Court just three years later, in front of Justice Brett Kavanaugh instead of Justice Anthony Kennedy, I’m almost certain we would have suffered a defeat, which would have been disastrous for people who, by then, were already making wedding plans in a majority of states. We got lucky. It seems the Constitution made a surprising change, one that lasted only a few years, tops.

But that’s the reality of our judicial system. The big wins are always surprises, because the losses are what we’ve come to expect. The hard truth known by American lawyers, even those committed to the mythology of American equality, is this: The courts are not equalizers. They were established, and have always existed, to protect the status quo. You can see plenty of evidence of this in millions of pages of American court opinions before and since marriage equality was judicially pissed on in the 1970s. We accept injustices as regular features of our legal landscape, so commonplace that they aren’t worth stopping to look at. So, if you lose on a radical proposition like “prosecutors shouldn’t be allowed to fabricate evidence,” or “we shouldn’t deport an immigrant to a war zone for possessing a bag of weed,” or “you shouldn’t be able to fire someone just for being gay,” or “cops shouldn’t be able to break into your house and kill you,” that’s just part of the terrain. We’re used to the law being a creature that bites us, so it comes as a surprise to get a friendly lick once every quarter-century or so.

No major battle has ever been won solely in a courthouse. Textbooks that gush about Brown v. Board, Loving, and Obergefell retain the sweat, with a sprinkling of tears, and leave out nearly all the blood. In the history my generation was force-fed, all the magic happened in court; when the court said “society must change,” society changed. That isn’t how it works. Until it becomes clear that the existing powers-that-be have more to lose than gain by continuing an oppressive practice, there’s no reason to stop it.

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Take the example of trade unions: Nearly 200 years ago, organized labor was considered criminal conspiracy. When it became apparent that a critical mass of workers was going to organize anyway, laws be damned, the courts had to adjust. The shift came after widespread acts of sabotage, massive strikes and intensely bloody clashes between workers and state militias. It became a safer proposition to legitimize organized labor so that it could be regulated, rather than risking even one seat at the gilded table. And voila! The courts said organizing was no longer conspiratorial, laws were enacted to manage how and when labor unions did business, and the Prohibition movement began in earnest. By criminalizing drinking, everyone who was drinking (which was everyone) could be mashed under the steel-toe boot of the criminal law. When that fizzled out, the drug war, with the universal help of the courts, has managed to keep the masses divided, powerless and incarcerated for another 80 years. Turns out, it’s a better strategy to regulate the conduct of individual workers than to try to regulate workers as a whole.

At some point, the price of repressing individual liberties, like the right to get married, to work shorter days, or to stay alive, becomes greater than the cost of protecting them. That’s when you might see a shift in judicial thinking. But ordinarily, the courts are tasked with the job of maintaining cruel, useless or oppressive practices long past their expiration dates. Were it otherwise, Baker and McConnell would have won the right to marry on the first pass, and the stigma suffered by two generations of terrified LGBTQ+ children might have been dramatically reduced.

So what caused the shift toward marriage equality? When Baker and McConnell applied for their license in Minnesota, it had only been a few months since the Stonewall skirmish. At the now famous Stonewall Inn in Greenwich Village, cops were conducting the umpteenth raid designed to ferret out lesbians, gay men and other “deviants.” A woman who was being dragged to the paddy wagon asked a crowd of about 500 onlookers, “Why don’t you guys do something?” So they did. They threw bricks. They slashed the tires of police cars. They broke the windows and smashed the doors of the Stonewall Inn. They trapped 10 cops inside.

NYPD fled the scene and came back with reinforcements. The fighting continued for another day. No one was killed, which seems a miracle by the warlike, steroid-fueled, berserker-style standard of behavior we expect from law enforcement today. One protester recalls: “We all had a collective feeling like we’d had enough of this kind of shit. . . . There was something in the air, freedom a long time overdue, and we’re going to fight for it. It took different forms, but the bottom line was, we weren’t going to go away.”

Even before Stonewall, there were uprisings and marches, the kind that no one talked about much then (or since). After Stonewall, crowds dramatically increased at sporadic marches on Washington, D.C., the AIDS crisis generated widespread sympathy for the gay community, Maine, Maryland and Washington held successful referendums on marriage equality after an exhaustive canvassing campaign, LGBTQ+ people became ever more visible in popular media, and, yes, there were finally a few sparse court victories.

And that brings us to today. As cities across the U.S. figuratively and literally burn, what lessons can be drawn from marriage that can be put to use in the movement for Black lives? I’ve been confronted by more than one person in the last two weeks who asked: “Surely there must be a way to change this without all this violence and turmoil. Can’t you just file a lawsuit, like you did with the marriage case?” One can never be sure about anything in the law, but I am sure of this answer: no. It’s never been that simple. The marriage case wasn’t just a case. It was the culmination of decades of work by countless activists, scholars, organizations, rabble-rousers, brick-throwers and a few lawyers. Despite Anthony Kennedy’s flowery rhetoric, he, like every Supreme Court Justice, has an abiding affinity for the status quo, not a great love for equality. He would not have written his opinion even five years earlier. It was only when the right mix of social factors convinced him that suppressing marriage equality was more risky than allowing it. Change institutional racism through the courts alone? You’d have an easier time trying to write with the feather stuck to my wall.

How, then, should we go about replicating that success in other fights? What does it take to bring all the stars into proper alignment? There’s no single, sure-fire way, not through politics, not through militant self-defense, not through diplomacy, and not through peaceful demonstration. We know this because Harvey Milk is dead, Malcolm X is dead, Fred Hampton is dead, and Martin Luther King Jr., is dead. Elements of riotous revolt, litigation, electoral politics, public relations and martyrdom all figure into it to varying degrees. If there is a recipe, it exists only in the devil’s cookbook, one that lists only a few ingredients and no quantities. One part evening news, one part flowers in rifle barrels, a dash of Molotov cocktail, a sprinkling of rosary beads, a pinch of gunpowder, a handful of legal briefs, a touch of guillotine. Though I am unsure of the precise formula, I am sure of one thing: Marriage equality could not have happened if no one had thrown the first brick at Stonewall.

But what do I know? I’m just a guy who got lucky enough to win a court case. For now, I’ll celebrate our surprising win in an institution designed to make losers. I’ll celebrate the marriages of Tim and Larry, Greg and Michael, Kim and Tammy, Maurice and Dominique, Paul and Randy, and Luke and Jimmy. And even as the buzzards circle the great bird that gave me my defunct quill, I’ll celebrate what the marriage case stands for: The hope that the mythology of American equality can be realized, even if we don’t quite know the recipe for it.

Dan Canon is a civil rights lawyer and law professor. “Midwesticism”is his short-documentary series about Midwesterners who are making the world a better place. Watch it at: patreon.com/dancanon.

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