Marriage equality is a constitutionally protected right, but it took a fierce battle before the U.S. Supreme Court to ensure the law saw it that way. We’re coming up on the anniversary of the oral arguments in two landmark cases that paved the way for nationwide marriage equality. In March of 2013, lawyers presented their cases and were able to persuade the justices that queer couples should have been allowed to marry for decades. It was a monumental challenge—so how did they do it?
First, a quick primer on what the Supreme Court is: There are nine justices (or at least, there were at the time—the number has fluctuated over the years, and we’re at eight right now), and at the time of argument, four were sympathetic to marriage equality and four were hostile. Justice Kennedy was in the middle.
Where’s Gay Marriage in the U.S. Constitution?
The lawyers opposed to equality claimed that it would force people to violate their religious convictions. That’s obviously not true, though—anyone can choose who they wish to associate with in private. But those cases were about the government, which has to represent everyone. The government can’t pick and choose which rights apply to which people. All rights must apply equally.
That’s why the lawyers pushing for equality honed in on the constitutional guarantees of due process and equal protection. Those are in the 14th Amendment, and they require that everyone is extended the full protection of all laws on an equal basis. (They were passed after the Civil War, when such legal treatments were hotly contested.)
Gay Marriage Doesn’t Discourage Straight Marriage
They also emphasized that allowing gay couples to marry would not, as some states argued, discourage straight people from marrying. “How could that be?” asked Justice Ruth Bader Ginsberg. “You’re not taking anything away from heterosexual couples.”
“How does withholding marriage from one group … increase the value to the other group?” asked Justice Sonia Sotomayor.
Lawyers opposed to marriage equality argued that the institution is unnecessary—not a very romantic view—and that it only exists for “benefits and burdens.”
That provided an opportunity for Mary Bonauto, the lawyer arguing for equality, who accused them of having “an impoverished view of what is marriage.”
Who Gets to Decide Who Marries?
Bonauto made another very strong argument just as she was concluding, one that was probably directed right at the swing vote of Justice Kennedy. Bonauto pointed out that the case was “not about the court versus the states. It’s about the individual making the choice to marry and with whom to marry, or the government.”
In other words, she was saying that the current law allowed the government to decide who should marry, and to prevent certain people from forming a marriage bond. Instead, except in extreme cases, that choice should be left to individuals.
That was a compelling argument that ultimately won Justice Kennedy’s vote, and two months later, the court ruled in favor of equality. That legalized marriage in California and overturned certain marriage restrictions at the federal level, paving the way for nationwide equality in 2015.
Marriage Equality is Still at Risk
Same-sex couples can now marry each other in every state, but Donald Trump’s officials could change all that through court appointments, lawsuits, or laws that chip away at existing protections.
Just because those March 2013 arguments were a success, that doesn’t mean our victory is safe.