Instead, the impetus has come from disparate forces in seemingly unconnected realms: courtrooms, yes, but also hospitals, nurseries, libraries and soundstages. The rise of same-sex marriage from joke to commonplace is a story of converging strands of history. Changes in law and politics, medicine and demographics, popular culture and ivory-tower scholarship all added momentum to produce widespread changes of heart.
You could start the story as far back as Adam and Eve, tracing the twists and turns of society’s struggle to order and regulate the natural imperatives of sex. For some social conservatives, it would be a tale as simple as the old line that God didn’t make Adam and Steve. But subtler Bible scholars — the sort who wonder why Saul was so miffed at David for “choosing” Jonathan for a love “more wonderful than the love of women” — would say these matters have always been complicated.
Instead, start on May 18, 1970, when a young Air Force veteran named Jack Baker visited the Hennepin County clerk’s office in Minneapolis with his boyfriend of three years, librarian Michael McConnell. Neatly dressed in coats and ties — “neither is a limp-wristed sissy,” Look magazine noted — they filed an application for a marriage license, which was promptly denied. The episode was generally dismissed as a stunt, another strange happening in those days of hippies, riots and Woodstock. Homosexuality was still classified as a mental illness by the American Psychiatric Association, and even University of Minnesota professor Allan Spear, a gay-rights pioneer, called Baker and McConnell “the lunatic fringe.” The publicity cost McConnell his job, while Baker, a law student, filed suit.
In an opinion that cited the Book of Genesis, among other authorities, the Minnesota Supreme Court rejected his claim, and his appeal to the U.S. Supreme Court was turned down “for want of a substantial federal question.” But Baker was onto something. His suit, for the first time, linked the idea of same-sex marriage to an emerging line of high-court precedents establishing a right to privacy in matters of sexual intimacy.
These precedents were both product and fuel of the sexual revolution and gunpowder for the resulting culture wars. In 1965 the court held that married couples have a right to use contraception. The Justices extended the principle in 1967 as part of a decision to strike down state laws against interracial marriage. By the time Baker was making his appeal, the zone of privacy had been extended to unmarried couples using contraception, and a year later, in 1973, Roe v. Wade invoked the right to privacy in legalizing abortion.
By the mid-1980s, the American Civil Liberties Union believed the concept had advanced far enough to shield the intimate behavior of gay men and lesbians. The group offered to help a Georgia man named Michael Hardwick challenge his conviction on sodomy charges. But the gamble failed. By a vote of 5-4, the high court held in 1986 that states were allowed to enforce age-old sexual taboos. Writing in dissent, Justice Harry Blackmun, author of Roe v. Wade, argued that traditional moral condemnation of sexual behavior between consenting adults is not sufficient reason to infringe on privacy. True, some “religious groups condemn the behavior” of homosexuals, he wrote. But that “gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine.”
Although few recognized it at the time, this concept — that something more than traditional morals is needed to justify laws governing intimate relationships — was a lever awaiting the right moment to pry open the door for same-sex marriage. Yet at the time, marriage seemed impossibly remote to most gay-rights leaders. They had no appetite for such a pie-in-the-sky project when same-sex intimacy could still be prosecuted as a crime.
For that matter, many gay activists weren’t interested in getting married. In the 1970s and early 1980s, the reigning model of liberated gay culture was found in meccas like San Francisco’s Castro Street and New York City’s Greenwich Village, where people scoffed at the idea of coming out of the closet only to enter the confines of wedlock.
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But then another seemingly separate strand of history was woven in: the AIDS epidemic. Burning outward from the bathhouses, this deadly scourge offered a painful education in the advantages of marriage. AIDS patients and their partners discovered that they weren’t covered by each other’s medical insurance, weren’t entitled to enter the doctors’ offices and hospital rooms of their loved ones, weren’t authorized to claim remains or plan funerals or inherit estates. Grieving survivors were barred from collecting Social Security and pension benefits. Marriage began to be seen as the portal to a wide array of privileges and protections. The bourgeois ideal of stable monogamy could be a lifesaver.
Meanwhile, in other hospital rooms, another thread was emerging as doctors tinkered with the mechanics of procreation. With the arrival of the first so-called test-tube baby in 1978, the age-old business of one mom and one dad making and raising babies the old-fashioned way was quickly joined by a dizzying array of reproductive strategies. With donor sperm, donor eggs, surrogate wombs and so on, lesbian couples created their own baby boomlet, which spread quietly among gay men. Add adoptions and stepkids from earlier opposite-sex relationships, and today there are enough children of lesbian and gay couples in America to fill a couple of football stadiums. Of the roughly 600,000 U.S. households headed by same-sex pairs in 2010, the Census Bureau reports that some 115,000 are raising children.