Boston University School of Law

November 28, 2012


Incremental Steps Toward Marriage Equality

Yale Law School Professor William N. Eskridge, Jr. discussed the social and legal history of marriage equality from 1970 to the present at BU Law’s Annual Distinguished Lecture. Law students and professors who could not find seating lined the walls of Barrister’s Hall, and C-SPAN documented the lecture for a national audience.

Professor Eskridge affirmed the role of impact litigation, including constitutional challenges to California’s marriage equality revocation by state ballot in 2008. But he also applauded Vermont’s social education campaign for marriage equality by statute in 2009 as perhaps a “more legitimate process.” Rather than receiving a court mandate, legislators and their constituents learned that same-sex marriage “is not a big deal—it is indeed a good deal.”


Before walking through three phases in the marriage equality movement, Professor Eskridge reached back to Henry James’ 1886 novel The Bostonians to highlight the co-habitation of unmarried, financially independent women long-known as “Boston marriages.” Phase one began in 1970 when same-sex couples wanting legal recognition of same-sex marriage could draw from the 1967 U.S. Supreme Court decision in Loving v. Virginia. This decision provided anti-discrimination and fundamental rights arguments when it ended state bans on interracial marriage. But these arguments did not end state bans on same-sex marriage beyond a short-lived triumph in Baehr v. Lewin, a 1993 Hawaii Supreme Court decision.

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.

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Reported by David Linhart ('12)

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