lyle-dennistonBy Lyle Denniston, reporter for, an online journal of American law

When the French aristocrat, philosopher and historian Alexis de Toqueville toured the United States on a study mission in 1831, he marveled at some very peculiar characteristics of the young nation.  One of those was this: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”  Transported forward 182 years, he could have been talking about gay rights.

In ways at times visible and nearly invisible, the rights of gays, lesbians, and transgender people has been agitating the American political mind since the Stonewall Inn riots in New York City’s Greenwich Village in late June 1969 – the commonly accepted origin of gay political consciousness in the United States, and the dawn of a campaign for acceptance and legal equality.

The campaign has never stopped being decidedly political, but, as de Toqueville would have had it, the political would become legal.  To a remarkable degree, the focus of the legal campaign would be on marriage – a mainstream institution which, upon entry, confers cultural respectability and social acceptance.

But, three years after the Stonewall riots, the Supreme Court would rule – in a one-line decision – that a claim by a gay couple in Minnesota to a constitutional right to marry did not even raise a “substantial question” under the U.S. Constitution.   At that time, not a single state government in America would allow same-sex marriage.

However audacious the claim was then, it was typical of campaigns for equality in the United States.  Civil rights movements have always begun with the premise that the arc of history bends inevitably toward human liberty, and in time will produce it, through the fulsome promises of constitutional rights.

Just as lawyer Thurgood Marshall would show how to use constitutional law to advance a revolution in racial equality, and lawyer Ruth Bader Ginsburg would do the same for gender equality, gay rights lawyers would attempt the same, and marriage would be their most yearned-for legal goal.

Eighteen years after the Supreme Court had spoken, three same-sex couples in Hawaii applied for, and were denied, marriage licenses.  The national leaders of the still-cautious gay rights movement did not endorse the lawsuit that followed; the couples hired a local attorney to pursue it for them.

Within three years, that would produce a ruling by Hawaii’s Supreme Court that the state constitutional guarantee of legal equality extended to marriage for same-sex couples, unless the state could produce a strong justification.

The decision roiled politics in Hawaii, and political Washington began to take notice, too.  In Hawaii, the state constitution was amended to give the state legislature control of the issue, and the lawmakers banned same-sex marriage.  Although there is optimism today among activists in the state that they will soon undo that ban, it has not happened yet.

In Washington, Congress moved to contain the Hawaii initiative to that state alone.  By very large majorities in the two houses, Congress passed the Defense of Marriage Act of 1996.  It declares that, for all national programs and purposes dealing in any way with marriage, the provisions apply only to unions of a man and a woman.

But the movement for gay marriage was accelerating elsewhere, as a pro-marriage coalition came together, and legal advocacy groups began forming.  In April 2001, one of those groups sued Massachusetts officials, with seven same-sex couples seeking the right to marry.  They won that right, from the state’s highest court, the Supreme Judicial Court, in 2003 – the first state to actually create marriage equality for gays, lesbians and transgenders.

Again, a political backlash came and, this time, it spread across the nation.  The primary response would be putting the issue to a vote of a state’s people.  In very rapid order, more than 40 of the 50 states would ban same-sex marriage either in their state constitutions, or in a state statute – laws passed either by popular vote or by state legislatures.

One of those voter-approved measures came in California – so-called “Proposition 22.”  In March 2000, capturing more than 61 percent of the vote, Californians approved a statute to restrict marriage to a man and a woman.  That was overturned by the state Supreme Court in 2008, under a state constitutional guarantee of legal equality, but soon after that, the voters approved “Proposition 8” – amending the state constitution to confine marriage to opposite-sex couples.  (In the meantime, more than 18,000 same-sex couples were married, and those later were allowed to stand.)

The combined political and legal pro-marriage activity would intensify, despite the losses at the polls.  That eventually resulted in nine states allowing same-sex marriage, initially by state court rulings, and then, last November, by voter-approved ballot measures.  The other 41 states still maintain a ban, though political pressure to relax at least some of those restraints continues.

Two of the political backlash responses – Congress’ passage of the Defense of Marriage Act in 1996 and Californians’ adoption of “Proposition 8” in 2008 – would, predictably, be challenged in the federal courts under the U.S. Constitution.  And, just as predictably, both challenges would make their way to the U.S. Supreme Court.  As America’s most famous Chief Justice, John Marshall, had written in 1803, “it is emphatically the province and duty of the Judicial Department to say what the law is.”

De Toqueville, again, had been proven prophetic.  Same-sex marriage had, indeed, become a question of law.

In nearly four hours of hearings spread over two days, the Supreme Court reviewed the two cases.  Now, the nine Justices will spend weeks in private deliberation, with decisions most likely to emerge in late June.

If the Court were to rule narrowly, without deciding whether marriage equality for gays and lesbians is guaranteed by the Constitution (and there were signs of just such an outcome), the legal momentum might slacken for a time, but the national political conversation no doubt would proceed, uninterrupted.  Almost certainly, it would one day return to the Supreme Court.