Washington Lawyer - November/December 2020 - 49

WORTH READING

The Long Road to Marriage Equality
Review by Debra Bruno

n the eyes of history, most social
movements such as the fight for
women's suffrage or civil rights
seem like inevitable progressions,
evolutions that come about naturally. But the truth is often far more
complicated, even when the arc of
the moral universe bends toward
justice.

Marriage Equality: From Outlaws to In-Laws is a
comprehensive, kaleidoscopic, nearly 800-page
work that begins with the first attempts to
legalize same-sex marriage in the 1960s and
reaches its zenith with the momentous 2015
Supreme Court decision in Obergefell v. Hodges,
which ruled that the right for same-sex couples
to marry was protected by both the due
process and the equal protection clauses of
the Fourteenth Amendment. Or, to put it more
succinctly, "States cannot be allowed to commandeer the lives of an unpopular class of
citizens and exclude them from normal legal
rights and benefits," write Eskridge and Riano.
The book is a deft mélange of detailed descriptions of the judicial and legislative battles over
marriage equality, mixed in with multiple
personal stories of the couples who - sometimes enthusiastically, sometimes more reluctantly - brought their cases for the right to be
married. Many of these stories have not been
told in detail before now.
Besides its sweeping scope, another significant
aspect of Marriage Equality is the fact that
Eskridge, the John A. Garver Professor of
Jurisprudence at Yale Law School, has been

"I enjoyed participating in it so much, I thought
I should be the one to write this story," Eskridge
says. "We felt we wanted to do as complete
a history as could be done of the marriage
equality story." Riano, 36, executive director
of the Center for Civil Education and a cons-
titutional law expert at Columbia University,
brings the perspective of a younger
generation.
Notably, though, even as both authors fall
clearly on the pro side of marriage equality,
opponents of same-sex marriage are presented
dispassionately and fairly. In fact, Maggie
Gallagher, a chief supporter of the belief that
marriage should be between one man and one
woman, is described as a woman with eyes
that "glow with intelligence, moral sense, and
sadness." Gallagher, co-author of Debating
Same-Sex Marriage, even wrote a blurb for their
book: "Whether you enthusiastically endorse
gay marriage or, like me, do not, you will learn
a great deal from this fine book."
One of the biggest drivers of marriage equality,
Eskridge argues, is the women's movement.
"The saga of the book is a saga not just about
LGBTQ people, but also about how America
has changed because of women's changing
status," Eskridge says. "Women of all orientations have driven the changes in family law
and changes in gender norms - and that has
created space." In other words, the evolving
view of gender roles brought with it a reexamination of marriage itself.
Eskridge says it's useful to recall that before the
fight for same-sex marriage began, gays were
considered criminals. "We were psychopaths by
law," says Eskridge. In the 1970s, some couples
brought lawsuits in favor of gay marriage,
but they all lost. Gay marriage was still "too
strange." The general attitude was that society
was being nice to gay people simply by not
putting them in jail.

Yale University Press

In fact, most changes in society have come
about because many people fought long and
hard through court decisions, legislation, and
shifts in popular opinion. That progression
describes the fight for same-sex marriage, told
in a sweeping new book by Yale law professor
William N. Eskridge Jr. and Columbia University
lecturer Christopher R. Riano.

one of America's chief advocates of same-sex
marriage, actively litigating and advising those
on the forefront of many of the battles he illuminates in the book. Eskridge is, in his own
words, a member of the "gayocracy," the elite
lawyers and intellectuals pushing for the rights
of gay citizens.

Then in the 1980s, the AIDS crisis hit. The visible
and devastating nature of the disease made it
harder for gay men to remain in the closet. One
consequence was that attitudes toward homosexual conduct worsened, and in 1986, the U.S.
Supreme Court ruled in Bowers v. Hardwick that
it was constitutional for states to make "homosexual sodomy" a felony.
Another later setback was the 1996 Defense of
Marriage Act, a federal law passed by Con-gress
and signed by President Bill Clinton that de---fined marriage as a union of one man and one
woman. At the same time, Eskridge's book,
The Case for Same-Sex Marriage, argued for the
opposite. But Clinton, says Eskridge, recognized
that the political climate was "too toxic" for him
to do anything other than sign the bill.
Those setbacks actually invigorated the gay
rights movement, say Eskridge and Riano. And
part of that newfound motivation was advocating for the right to be married. In fact, the
AIDS crisis, with its end-of-life caretaking that
friends and lovers were doing for each other,
"revealed that gay relationships could engender
the same kind of selfless, till-death-do-us-part
continued on page 50

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