From Outlaws to In-laws

By Brandon Vogel

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As a 16-year old in 1967, William Eskridge, Jr., knew that he was a homosexual, but “gay was not a word then.” What that signified was you were a criminal and a psychopath, said Eskridge. “And those were the best that could be said for you.” He was not even aware of gay rights, he said.

At today’s CLE webinar, “Marriage Equality and Beyond 2020,” Eskridge, the John A. Garver Professor of Jurisprudence at Yale Law School, talked about how far the movement has come. Eskridge and Christopher Riano, chair of NYSBA’s LGBTQ People and the Law Committee, discussed the progress made and highlighted in their forthcoming book, “Marriage Equality: From Outlaws to In-Laws.”

Liz Benjamin, former host of Capital Tonight and managing director of Marathon Strategies, Albany, moderated the discussion on what Riano said aims to be “the truly definitive work on marriage equality.”

“It’s not just the story of the movement as a whole, but it’s the story of so many of the people in the movement and their parts in the movement,” Riano said. “Obviously, you have this incredible journey of not just the case law but these personal stories that Bill and I try very, very hard to make sure that we told.”

Eskridge related how during his teens laws banning interracial marriage were struck down in the landmark case Loving v. Virginia. This inspired some lesbians and homosexual to consider marriage, he said. “Our story cannot be told without the Civil Rights Movement,” he said.

“The women’s rights movement very much inspired me because of its critique of rigid gender roles,” said Eskridge. “So it’s not just that women should have equal rights, but women and men, and ultimately, gay people, should not be shackled by traditional gender roles.”

At first, all the legal challenges failed and then in the 1980s came the AIDS epidemic. By the late 1980s, the AIDS movement stimulated more interest in relationships, including marriage, and it led to premier LGBT legal organizations, such as Lambda Legal, whose executive director, Tom Stoddard, made marriage a priority for LGBT rights.

The “Cinderella moment” came in 2003 when in Goodridge v. Department of Health, a Massachusetts Supreme Judicial Court required the state to legally recognize same-sex marriage. After Goodridge, support for marriage equality steadily increased each year until 2011 when more than half of Americans supported it and New  York became the sixth state to legalize sex-sex marriage. President Barack Obama first expressed his support publicly in a May 9, 2012 interview with Robin Roberts.

The “roadmap for marriage equality nationwide” was the June 2013 Supreme Court decision of United States v. Windsor, according to Eskridge. Subsequently, the 2015 landmark case of Obergefell v. Hodges required all states to license and recognize same-sex marriage.

So, how did marriage equality prevail as swiftly as it did?

Eskridge said that first LGBTQ+ persons were normalized and a key part of the normalization process was their emergence as committed couples raising children.

“We were now your in-laws!” He noted that “The sky did not fall when Massachusetts approved same-sex marriage.” Likewise, successful, emotion-packed campaigns helped the marriage equality movement gain increasing acceptance among heterosexual couples.

“Because humans change their minds based on emotional and not cognitive arguments, it is very difficult to change entrenched attitudes and entrenched law,” said Eskridge. “Reasons we succeeded in 12 years from 03-15 is that we were able to mobilize group awareness and a lot of group activity. We were able to publicize the ill-treatment of couples. We were able to refute stereotypes. We were able to recruit unexpected messengers including the Cheneys and lots of other people you might not expect.”

Benjamin asked Eskridge if the opposition kept the fire fueled.

He answered, “We do not see the critics as demons. This is not a book about wonderful lesbians being persecuted by bigots. It’s a genuine conversation. That’s why it’s about America.”

Riano said that one of the things that is incredible about LGBTQ activism is that it has created a menu of options that now exist. “It’s not lost on me that a progressive moment opened up an entire area of law” said Riano.  Benjamin, who recalled the first LGBTQ divorce in New York when she was a reporter, noted her friend now practices solely in LGBTQ divorces.

“Now during the pandemic, we need community generally, but we also need family,” said Eskridge. “It’s never been more important in American history.”

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