Ironically, they are now in a difficult spot. Their narrow campaign was initially a winning strategy. Lawyers suing for equality in marriage drafted their cases so tightly that judges, already ambivalent about expanding rights for same-sex couples, would not be able to see any further than state marriage laws. A state constitution ensures that any ruling will not be felt beyond the borders of its borders if it asserts claims. The complaint form was designed so that the courts could grant relief to plaintiffs without having the need to agree to the larger principle that any discrimination they face on the basis their sexual orientation should be treated in the same manner as other civil rights laws, such as those relating to race, gender, and religion.As federal courts became involved, advocates for marriage equality continued to extol the limitations of their legal approaches. Mary Bonauto, a New England litigator, filed the first major lawsuit in federal court against the Defense of Marriage Act. She demanded federal recognition for same-sex couples. However, she made sure to point out that it wouldn't affect any other states that have legalized same-sex marriages on their own terms.His Justice Department presented what seemed to be a bizarre compromise when President Barack Obama offered his support to Proposition 8, the California gay-marriage ban that was enacted in 2008. Donald Verrilli Jr., Solicitor General, proposed that the Supreme Court rule that states such as California, which have extended gay men's marriage lite options like domestic partnership, civil union, were in contravention of the constitutional prohibition against separate and equal. However, it was acceptable to give no recognition. This proposal was made to ensure that no state could begin to recognize gay and lesbian families by a court order.This question was never brought up by the Supreme Court. Instead, it dealt with Proposition 8 appeals in 2013 solely on procedural grounds. The court's simultaneous decision that the Defense of Marriage Act was not constitutional dramatically altered the view of gay-rights litigators. The lawyers set their sights higher when the controversial question of whether states can restrict marriage to homosexual couples resurfaced in the Obergefell case. They saw an opportunity for Obergefell to be leveraged into a case that would have a far-reaching impact beyond the state marriage laws.Bonauto and Verrilli stood before the justices in spring to argue that sexual minorities should have federal civil-rights protection. This was the all-the–marbles approach that litigators had avoided so carefully before. The courts applied the equal-protection provision to determine that such a decision would not only affect marriage bans, but also a wide range of laws in federal, state, and local jurisdictions that are likely to disadvantage gay men and women (and possibly other transgender people) and be subject to greater judicial scrutiny. The lawyers wanted the justices to decide who was being targeted by the laws and not what right they had been denied.Justice Anthony Kennedy had written three landmark opinions that helped establish full citizenship for gay men and lesbians. He had repeatedly declined to view the cases under those terms. His opinions favored amorphous concepts such as respect and dignity over the strict logic of civil-rights law. Kennedy wrote a majority opinion when Obergefell was at his desk. It focused more on the particular right at issue than the class of people being harmed.Kennedy said that marriage is the most profound union because it represents the highest ideals in love, fidelity and devotion. Two people can become more than they once were by forming a marital alliance. These petitioners have shown that marriage can be a symbol of a love that will last even after death, as some of these people in these cases show. These men and women would be mistaken if they said that they disapprove of the idea marriage. They say they respect it and that they are determined to fulfill their own dreams.Kennedy knew he was writing about history. Etsy is filled with notecards and posters featuring Kennedy's words. Kennedy's words are often used at gay and straight wedding ceremonies. This was partly due to the wider success of gay-marriage campaigners in politics. They had restructured their political communications to stress why marriage matters in the years prior to the Supreme Court hearing. Freedom to Marry is one example of this initiative.This shift resulted in political gains for marriage equalitymajority support at national polls and breakthrough wins in legislative and ballot fights. It also helped keep judges' attention on the institution's special status in society.However, the limits of these decisions are now becoming more clear. Obergefell was cited by a federal court in 2016 to support the repeal of Mississippi's ban on gay adoption. However, it has had little impact in other areas than family law. In fact, gay-rights litigators and advocates have continued to fight many of the same issues that they faced years ago, sometimes even decades earlier.Congress has yet not passed the Equality Act. This would amend the Civil Rights Act of 1963 and other federal statutes to include gender identity and sexual orientation as protected categories against discrimination. The Supreme Court ruled last summer in Bostock v. Clayton County that homosexual men, lesbians and bisexuals could not be denied employment based on laws that include sex as an basis for discrimination against employment. The majority opinion by Kennedy's successor Neil Gorsuch did not include coverage for sexual minorities in the Constitution. Bostock didn't address legal discrimination against them elsewhere, such as in housing, education, lending, or public accommodation. It also left open the possibility of a conservative Congress amending the Civil Rights Act to allow it. (The Biden administration attempted to extend some anti-discrimination protections through executive order.Some gay-rights activists as well as lawyers are now looking back on 2015 in terms of what might-have been. In a volume entitled What Obergefell and Hodges Should have Said, legal scholars offered alternative opinions, many of which recast the decision in a more traditional, but more broad, civil-rights context. Justice Ruth Bader Ginsburg said that she would have chosen such a route if she had written the majority opinion weeks after the marriage decision was published. Ginsburg stated that she didn't submit a separate concurrence on the basis of different reasoning because it was more effective to have one opinion in this case.Obergefell's cultural power may have also been what limited its legal impact. This is the challenge that another generation strategists and campaigners will need.
