The cause of gay marriage has made remarkable breakthroughs recently. There were the November victories at the polls: Maryland and Washington voters ratified legislation allowing same-sex marriage, Maine approved a ballot initiative allowing same-sex marriage, and Minnesota became the first state to reject a ballot initiative to constitutionally prohibit same-sex marriage. There was President Obama’s embrace of the cause in his inaugural address, where, with his memorable reference to “Seneca Falls, and Selma, and Stonewall,” he framed gay rights as the necessary next step of the struggle for equality. And now we are looking at a Supreme Court poised to consider the issue in a pair of cases scheduled for argument in March.
Of course these historic developments are still unfolding, and they are sure to occupy historians for generations to come. While we wait to see how all this will play out and look forward to the historical assessments still to be written, what insights might legal historians have to offer about the struggle for gay rights thus far? How has this struggle fit into existing models of law, the courts, and social change, which have generally relied upon the struggles for racial and gender equality as their touchstones? Fortunately, Michael Klarman, one of the leading legal historians of our day, has written a fantastic new book that gives us much information and many provocative insights on the battle for marriage equality, the courts, and possible lessons of history.
The contributions of From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-SexMarriage (Oxford, 2012), can be broken down (with some simplification) into three categories: history, theory, and prediction. In this post I will explore the first two; in my next post I will discuss Klarman’s thoughts about how the Supreme Court will likely deal with gay marriage.