How Straight People Paved the Way for Gay Marriage
July 1, 2012 --
Last week's Supreme Court decision on the Patient Protection and Affordable Care Act (ACA), the health care overhaul signed into law into 2010 and colloquially known as Obamacare, drew nationwide attention. The case, National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. (PDF), stoked passionate reactions from both supporters and opponents of the bill. The level of attention the Supreme Court received over this case is nothing new. Throughout its history, the court has had its fair share of controversial rulings.
BLOG: What the Health Care Ruling Means
U.S. National Archives
The 1803 case of Marbury v. Madison is what made the Supreme Court what it is today. Secretary of State James Madison refused to seat a number of judicial appointees from the previous administration, leading one, William Marbury, to sue for his commission. The court sided with Madison since the law requiring him to give Marbury the post was unconstitutional. Marbury v. Madison may not be as controversial today as other decisions in the Supreme Court's history. But by establishing the concept of "judicial review," the court essentially made one big power grab in asserting its authority among the other two branches of government.
Library of Congress
One of the cases that helped stoke tensions between abolitionist and anti-abolitionists, Dred Scott v. Sanford, decided in 1857, determined that all blacks, both slaves and free men and women, were not citizens of the United States and therefore not offered the rights and protections of the U.S. Constitution. Dred Scott was a slave from Virginia who had been brought to Illinois, then a free state itself. When he once again relocated to another slave state, Missouri, he sued for his freedom, stating he was entitled to it after living on free soil. Under Chief Justice Roger B. Taney, the court determined not only did Scott not have constitutional protection and therefore no right to his freedom or even to sue; the decision went even further and labeled the Missouri Compromise, passed in 1820 to designate free and slave states, unconstitutional.
WATCH: Frederick Douglass Slave Village Uncovered
In 1896, the Supreme Court would issue a decision that would shape government policy on race relations for more than half a century. Plessy v. Ferguson tried the case of an African-American man, named Henry Plessy, who challenged a Louisiana law restricting him to seating on a blacks-only railway car. The court's decision established that the law did not violate the equal protection clause of the Fourteenth Amendment because Plessy had been afforded "equal but separate accommodations." The lone dissenter on the case, Justice John Marshall Harlan, openly questioned whether blacks-only facilities could ever be truly "equal" to those afforded to whites. The ruling paved the way for the Jim Crow era in the south in which whites and blacks were segregated in both public institutions, such as schools, hospitals and parks, and private establishments, such as restaurants, theaters and more.
Library of Congress
Decided on May 17, 1954, Brown v. the Board of Education was a unanimous decision that overturned the "separate, but equal" standard established by Plessy v. Ferguson. The Supreme Court determined that segregating public school along color lines was unconstitutional, violating the equal protection clause of the Fourteenth Amendment. In this photo, George E.C. Hayes, James M. Nabrit and Thurgood Marshall, who would eventually become a justice himself, shake hands outside the Supreme Court following the decision. Diversity in schools might be par for the course these days, but the decision was met with staunch resistance when it was first handed done. Years after the ruling, some schools had to be forcefully desegregated because the district or state simply wasn't complying with the law. In 1963, Alabama Gov. George Wallace, who would later unsuccessfully run for president, blocked the entrance to the University of Alabama to prevent the matriculation of two black students.
On Jan. 22, 1973, the Supreme Court handed down its most controversial decision in modern history, Roe v. Wade. The case came to the court after Norma McCorvey, who used the alias Jane Roe, sued the state of Texas, which prevented her by law from having an abortion. Under Chief Justice Warren Burger, the judges found by a seven-to-two vote that state and federal government couldn't interfere with a woman's access to abortion. The majority opinion, written by Associate Justice Harry Blackmun, stated that a woman had a constitutional right to privacy under the Fourteenth Amendment when it came to her decision to have an abortion. Since the ruling, opponents of the bill, which now include McCorvey herself, question the constitutional validity of the decision and the legality of abortion. Public opinion on the issue has fluctuated over the decades, with most recent polling showing a majority of Americans describing themselves as "pro-life" over "pro-choice," according to Gallup poll.
In 2000, the Supreme Court didn't just decide any ordinary case; they ruled on an entire election. Bush v. Gore took the 2000 presidential election on the way to the Supreme Court following a narrow margin of victory for then Texas Gov. George W. Bush over former Vice President Al Gore. A little more than 500 votes separated them in Florida, and the case brought up a range of voting issues from confusing ballots to computer error that could have tipped the state to either candidate. A five-to-four split decision put a halt to the manual recounts of some 175,010 votes that the Florida Supreme Court had ordered and ruled that the original vote tally the state posted would stand. The decision was also unusual in that all four dissenters wrote separate opinions, and the ruling itself stated that it couldn't be cited as precedent. Opponents of the decision emphatically state that the court overreached and the recount should have been allowed to continue. Supporters point to reviews of the ballots long after the court's decision that found that Bush would have retained a narrow margin of victory even if the recount had proceeded.
In 1998, John Geddes Lawrence and Tyron Garner (seen in this photo) were arrested for violating an anti-sodomy law in Texas. The two men were engaged in consensual sex, and sued the state for essentially outlawing homosexual intercourse. Five years later, the case of Lawrence v. Texas was decided by the Supreme Court, striking down the Texas law by a six-to-three decision. The justices forming the majority opinion reasoned that the Fourteenth Amendment provided the plaintiffs with a right to privacy. Anti-sodomy laws in some 13 other states were invalidated by the ruling. The case is seen as a landmark in the gay rights movement.
BLOG: 2 Percent of American Identify as Gay
Second only to the decision on health care reform, Citizens United v. Federal Election Commission might be the next most controversial decision handed down during the tenure of Chief Justice John Roberts. The court found that corporations, unions and organizations had the right to spend unlimited amounts of money during a political campaign. The majority determined that organizations were entitled to the same the First Amendment protections on political speech as individuals. The five-to-four split decision will have deep implications for this year's presidential election, the first such race since the ruling was made in 2010. Opponents of the decision, including President Barack Obama who mentioned Citizens United in his 2010 State of the Union speech, claim that it overturns over a century of campaign finance law and gives too much influence to corporate interests.
BLOG: Mother Nature Gets Her Day in Court
Pastor Fred Phelps and his congregation at the Westboro Baptist Church might be the worst possible poster children for First Amendment rights. The church is known for provocation, using national tragedies as protest events to promote their extreme religious message. In 2011, the Supreme Court ruled in the case of Snyder v. Phelps that the church had a constitutional right to demonstrate at the funeral of a Marine who died in Iraq bearing signs that read, "God hates dead soldiers," among other hateful messages.
PHOTOS: Westboro Baptist Church: A Look Inside
As the Supreme Court prepares to hear arguments next week for and against the legalization of same-sex marriage, the public is increasingly coming down on the "for" side.
In fact, an ABC News-Washington Post poll released on March 18 found that 58 percent of Americans now favor the legalization of same-sex marriage, a number that leaped from just 37 percent in 2003. The shift in opinion is dramatic compared with other social issues. Public opinion on abortion, for example, has barely budged since the 1970s.
Some of the change is likely the result of more advocacy and visibility by gay Americans. But marriage itself has changed, gradually toppling the gendered roles that once defined man and wife.
"Now we're organized in a gender-neutral way," said Stephanie Coontz, the director of the Research Council on Contemporary Families and author of the book "Marriage: A History" (Penguin Books, 2006).
"It's up to the individual couple to negotiate their roles and duties," Coontz said. "It's really easy for a heterosexual couple to say, 'That's what I've got, why shouldn't same-sex couples have it?'" [I Don't: 5 Myths About Marriage]
Out of the closet
Tolerance for gays and lesbians has gone up considerably. Some of this is generational: According to the Pew Research Center, 70 percent of the Millennial generation (born after 1980) supports legal same-sex marriage, compared with 49 percent of Gen Xers (1965-1980) and 38 percent of Baby Boomers (1946-1964). The Silent generation (1928-1945) is least likely to support same-sex marriage, at only 31 percent in favor.
But support within each of those generational brackets has risen over the past decade, too. For example, in 2003, only 17 percent of the Silent generation supported same-sex marriage.
Visibility of gays and lesbians has made part of the difference. When Pew asked people who had changed their minds from anti-same-sex marriage to in favor why they'd shifted their attitudes, the most common response (32 percent) was that they knew someone who was gay and that personal relationship had altered their opinion.
Republican Sen. Rob Portman of Ohio recently made headlines for altering his opinion in just this way. The senator came out in support of same-sex marriage in an op-ed in the Columbus Dispatch on March 15, saying that he'd changed his mind after his college-age son came out as gay.
Another 25 percent of Pew respondents simply said they'd grown more open or thought about it more, and 18 percent said legal same-sex marriage was "just inevitable." Another 18 percent cited love, happiness or the need for the government to stay out of relationship decisions.
As opinions have shifted, so has marriage. Getting married once meant signing on to traditional gender roles wholesale. Companies once refused to consider married women for employment, or required women who were getting married to resign. (IBM, for example, only altered this policy in 1951.) It wasn't until the late 1970s that women could sue for consortium, or the right to their husband's aid, support and companionship. Before then, a man could sue a third party that injured his wife (through medical malpractice, for example) on the grounds that her injury took away his right to consortium — she couldn't provide him with services and companionship he had rights to. But because women were legally inferior to men, a wife could not sue on behalf of her husband.
It wasn't until the Supreme Court case Griswold v. Connecticut in 1965 that married couples won the right to contraception. Assisted reproduction, such as it was back then, was also frowned upon. [7 Surprising Facts about The Pill] http://www.livescience.com/14691-surprising-birth-control-pill-facts.html
"In the 1950s, at least two state courts held that assisted reproduction was adultery and the child was illegitimate," Coontz said.
Laws such as this gradually got overturned, Coontz said, making marriages far less gendered. At the same time, expectations that a married couple must procreate have declined and assisted reproductive technology is far more acceptable for couples who can't have kids the old-fashioned way.
In other words, same-sex couples haven't changed marriage for straight people, as opponents of same-sex marriage often argue, Coontz said. Heterosexuals changed marriage first.
"It's the opposite sequence than what is described by opponents of same-sex marriage," she said.
Opponents of same-sex marriage tend to hold more traditional, gendered views of marriage than supporters, Coontz said. But given that heterosexuals aren't quizzed on their plans for splitting up the household chores or having babies before being handed a marriage license, it's hard to construct legal arguments around that view.
"It's harder for opponents to say every family has to have a guy who does this and a gal who does this," she said.
The Supreme Court will hear oral arguments in the case Hollingsworth v. Perry on Tuesday, reviewing a federal appeals court decision that found Proposition 8, which banned same-sex marriage in California, unconstitutional. On Wednesday, the Court will hear oral arguments in United States v. Windsor, a challenge against the Defense of Marriage Act (DOMA), which refuses federal benefits to same-sex couples in states where gay marriage is legal.
5 Myths About Gay People Debunked
6 Scientific Tips for a Successful Marriage
10 Historically Significant Political Protests
Copyright 2013 LiveScience, a TechMediaNetwork company. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.