November 28, 2012
Incremental Steps Toward Marriage Equality
Phase two began in 1999 with a small concession that ironically represented “a big step forward”—a cultural shift to “gay is barely tolerable” after previously being “despised and electro-shocked.” Though this shift was “far from an embrace,” the movement secured decriminalization of consensual sodomy and the legislative breakthrough of the Vermont civil unions law of 2000. This law designed same-sex civil union as a parallel institution to opposite-sex marriage, with the same rights and responsibilities.
Finally, phase three began in 2003 when the Massachusetts Supreme Judicial Court gave full marriage equality to same-sex couples beyond parallel civil unions in Goodridge v. Department of Public Health. Full marriage equality continues to radiate across the U.S. from the Northeast with the current tally at nine states plus D.C. Professor Eskridge acknowledged that there are “battleground states” such as Pennsylvania and “states that won’t budge” such as Texas. But the inevitability of full marriage equality is generational—“young people [agree] and old people who do not are dying.”
Professor Eskridge found that a social education strategy emphasizing family stability works best. In 2012, Maine, Maryland and Washington became the first states to gain full marriage equality by state ballot. Movement advocates ultimately normalized same-sex marriage by sharing the voices of committed couples embedded in their communities raising kids.
This social education strategy bolsters legal anti-discrimination arguments because the state interest of protecting society against the “Trojan horse” of same-sex marriage is discredited by family stability. In the balance of state and private interests, the private interest of choosing marriage emerges as the winner.