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Center for Gender & Sexuality Law


In this Essay I would like to share some reflections on the politics of same-sex marriage politics. In a very short period of time, this issue has moved to the center of the gay and lesbian rights movement as well as larger mainstream political and legal debates. Some have even argued that this issue affected, if not determined, the outcome of the 2004 presidential election. This, I believe, is rather an overstatement, but I must concede that the issue has gained traction in ways that most of us would not have predicted five years ago. The states of Vermont and Connecticut have enacted Civil Union laws for same-sex couples, the Commonwealth of Massachusetts now allows both same and different sex couples to marry, and, in the last year, trial courts have found unconstitutional the exclusion of same-sex couples from the institution of marriage in New York and California. Spain has now joined some of its fellow EU members in the Rhine Delta by allowing same-sex couples to marry, and the Constitutional Court of South Africa found that the South African Constitution requires that same-sex couples be permitted to marry on terms equal to those made available to different sex couples. At the same time, Governor Schwarzenegger vetoed the same-sex marriage law in California, courts in Arizona and Indiana rejected constitutional challenges to their marriage laws, an intermediate appellate court in New York reversed a trial court finding that same-sex couples should be permitted to marry, and referenda barring same-sex marriage swept the country in 2004 and 2005 and will, no doubt, continue to do so in 2006. Forty-two states have enacted "little DOMAs," limiting the institution of marriage to one man and one woman. This issue, like so many others in American politics at the present moment, is highly polarized – rarely garnering moderate positions.

I would like to reflect on this dynamic political, moral, and legal moment – which, I fear, may have shifted again by the time you finish reading this Essay – by offering some thoughts about how and why this particular issue has emerged as the highest of priorities in the gay community, and what might be the costs of such a strategic choice. Just two years ago, in sweeping language, the U.S. Supreme Court found laws that criminalized same-sex sex unconstitutional in Lawrence v. Texas. This decision has been widely referred to in the lesbian and gay legal community as "our Brown," referring to the landmark 1954 desegregation decision Brown v. Board of Education. By this, of course, it is meant that Lawrence would usher in a civil rights revolution for gay men and lesbians in a fashion equivalent to the civil rights movement inaugurated by Brown.