The Engagement: America's Quarter-Century Struggle Over Same-Sex Marriage | Crooked Media
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February 06, 2023
Strict Scrutiny
The Engagement: America's Quarter-Century Struggle Over Same-Sex Marriage

In This Episode

Melissa and Kate talk with Sasha Issenberg, journalist and political science professor at UCLA, about his book The Engagement: America’s Quarter-Century Struggle Over Same-Sex Marriage. Issenberg offers a glimmer of hope about the lasting legality of same-sex marriage, even in light of Justice Clarence Thomas’s concurring opinion in Dobbs. But he warns about the dangerous exemptions that could be carved out through 303 Creative, which the Supreme Court has yet to issue an opinion on, but foreshadowed in its Hobby Lobby opinion.

 

TRANSCRIPT

 

 

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SHOW INTRO Mr. Chief Justice, may it please the court. It’s an old joke but when a argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Kate Shaw Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture and the law more broadly. I’m one of your hosts today, Kate Shaw.

 

Melissa Murray And I’m Melissa Murray.

 

Kate Shaw And we are delighted today to be bringing you a conversation with our guest, Sasha Eisenberg.

 

Melissa Murray Sasha is the author of the book The Engagement America’s Quarter Century Struggle Over Same Sex Marriage. It is a meticulously researched account of the movement for and against marriage equality in the United States. And Sasha is no slouch to the publishing goods. He is the author of three previous books on topics ranging from the global sushi business to medical, tourism and the science of political campaigns. And he’s also no slouch to academia. He is multitalented and also teaches in the political science department at UCLA. So welcome, Sasha.

 

Sasha Eisenberg Thanks, Melissa. It’s great to be here.

 

Melissa Murray It is really great to have you. And what a time to be talking about this book. So the book was published in the spring of 2021. So giving us a little over five years after Obergefell versus Hodges legalized same sex marriage across the United States and a little bit of a year before we realized we would be talking about marriage equality again because of Justice Clarence Thomas, his concurring opinion in Dobbs versus Jackson Women’s Health Organization, where he noted that in addition to overruling the right to abortion, the court should also take up its other substantive due process decisions, including Obergefell versus Hodges. So, Sasha, obviously, you didn’t know about Justice Thomas’s concurrence when you were planning to write this, but what animated this book? What prompted you to write this truly encyclopedic account of the mobilization for and against same sex marriage?

 

Sasha Eisenberg Yeah, I’m not one of the journalists who gets the opinions leaked to him ahead of time. I started writing this in 2011. I had the idea for this, and at that point it was the first one that I, as a political reporter who had never really written about about same sex marriage, started to think that the momentum had turned in one direction. Some of the movements in states where marriage policy has traditionally been defined began to shift, and public opinion more generally was moving in something that seemed at that point previously unimaginable, which was that the, you know, marriage equality side of this debate could be triumphant. Was was in view? I certainly did not think that we were were four or five years away at that point from a national resolution of this is a legal matter. But it did seem like we were approaching consensus as a country. And I had been shaped just as a as a journalist. A lot of my interest in in this type of stuff had been shaped by reading big books about the civil rights movement that had been written mostly by journalists. Beginning in the mid to late seventies. Dick Lugar spoke about about Brown v board was a big influence. I mean, David Garrow is writing Taylor Branch. And people were beginning to talk about the movement for marriage equality as the defining civil rights movement of my generation. And I was 31, I guess at that time. I realized I’d been alive through the whole life of this as alive political issue in the United States and that. But I have no idea where it came from, how it had sort of emerged as a major culture war conflict. And I decided I would sort of, you know, perhaps a bit grandiosely try to write a a book that made sense of the whole arc of this political and legal conflict, which which at that point nobody had done.

 

Kate Shaw So interesting that the spring of 2011 is when you started, because that’s a couple of months after then Attorney General Eric Holder sends a letter to Congress announcing that the Obama administration has decided to cease the defense of the Defense of Marriage Act and the kind of machinations inside the executive branch that lead to that is definitely part of but only one small part of the really sprawling story you tell with tons of characters and, you know, tons of institutions. So that’s where the sort of nugget of the idea comes from for you in terms of where you begin the book. You begin it in the 1990s, right? Although you do later advert to post stonewall LGBT civil rights mobilization and you know, some early marriage lawsuits like Baker versus Nelson, which of course are quickly dismissed. But I’m curious why the nineties are the proper beginning for the story that you tell.

 

Sasha Eisenberg Yeah, I mean the crucial case there is is bear view Lewin, which in May of 1993, the Hawaii Supreme Court became the first court anywhere on earth to rule that the fundamental right to marriage could apply to same sex couples. And they sent it back to a trial court in Hawaii that ended up not not hearing this for for about three years. But that, I sort of realized was the first moment that this became a real, you know, a viable legal objective for couples and for civil rights attorneys who wanted to be involved in these cases. And the first time it was really a, you know, a live political issue in the United States. So, you know, that Baker V Nelson case you mentioned and a few others that were filed in in the early 1970s, in some cases didn’t actually even have attorneys involved in them. There was no civil rights organization in the United States that was mounting these cases. They fizzled out pretty quickly because there was not a lot of legal strategy behind them in the movement. Got caught up in other priorities, which in a more incremental gains. And then obviously AIDS in many respects sort of just reoriented the political agenda in the 1980s. And so, you know, where my book start, which starts, which is in 1989, 1990, in Honolulu, at that moment in the United States, you know, there was not a gay rights organization that has endorsed marriage rights as an objective. Pollsters are not asking people their opinions on it. There’s barely been a politician in the United States who’s ever been asked his or her opinion. And there’s a, you know, an ascendant anti-gay political coalition at that point, you know, evangelical fundamentalist Protestants, Catholics, and, you know, a large part of the Republican Party. And they’re trying to stop gays and lesbians from winning full citizenship on any number of fronts. But none of them are trying to stop gays and lesbians from marrying because it in no way strikes anybody in either of these two coalitions as something that’s going to be fought over. And this this Hawaii case sort of comes out of nowhere. And it’s only when the Hawaii Supreme Court rules in 1993, that’s the kind of political and legal infrastructure that assembles itself on two sides of an issue. The same way happens around abortion in earnest decades earlier, starts to assemble around marriage. And that’s the world that for for anybody who doesn’t closely follow the Hawaii judiciary is the moment that this becomes something that’s in the news and in people’s lives.

 

Melissa Murray So, hey, take a beat on that and ask two related questions. One. Hawaii is almost a character in this book, and if all politics are local, can you say a little bit more about how the particular political profile of the Aloha State made it an especially congenial home for this budding movement? And secondarily, what is it about the gay rights movement in Hawaii that sparks this interest in marriage equality when, as you say, it’s really off the radar, given the other are policy priorities like HIV, AIDS, like employment protections and things of that nature.

 

Sasha Eisenberg So Hawaii is unusual and it should not go underappreciated. A few things worth noting. You know, at this point, I believe Hawaii was the only state in the country that was not majority Christian. There was, I think, both for for reasons of like the sectarian breakdown of the place and also just geography and the sort of power of the Democratic Party there. It was a place where evangelical Christians who had developed a fair bit of political power almost everywhere else in the United States throughout the 1980s had almost no footprint at all. So there was not a real sort of homegrown social conservative opposition. The gay rights community that, you know, there was a general sense of of acceptance that was ahead of most other states in the country. You know, one of the earliest states to have a a publicly approved needle exchange program during HIV, one of the earliest states to write sexual orientation into its nondiscrimination laws. And I think a little less stigma around homosexuality throughout the 1970s and eighties than you might see in other places. One important distinction, though, is in the law and all of the early cases that were successful and to varying degrees in state courts were filed in state courts and not and made claims under state constitutions and not the the federal constitution. And in Hawaii’s case, being a young state was a really important part of why it had a distinctive constitution. Hawaii became a state in the late 1950s. They had a constitutional convention in the late 1970s, in part to update a constitution for, you know, having lived with it for a couple of decades. And there are two things in the Hawaii state constitution that distinguish it from most other state constitutions. They wrote an explicit right to privacy into the Constitution, and they incorporated after they passed the equal rights amendments at the ballot, incorporated the language of the into the state constitution. And so that gave a foundation for a whole bunch of legal claims about the rights of gays and lesbians, both on privacy grounds and on gender discrimination and sex discrimination, which ends up being a big part of the lawsuit there. And so one of the things you see is how state constitution, the ways in which state constitutions deviate from the federal constitutions, gave openings for activists not just in Hawaii, but later in Vermont and in Massachusetts to mount cases that would have been a nonstarter in federal court. Step one.

 

Melissa Murray [AD]

 

Kate Shaw A major theme in the book is internal debates and friction, sometimes tipping over into a kind of an internecine warfare among gay rights advocates over whether marriage should be the focus of their movement for equality and equal rights. Can you just tell us a little bit about this? What were the positions of those opposed to really centering marriage in the equality struggle? And what did they argue was being lost as the movement began to focus primarily or maybe even almost exclusively on achieving marriage equality.

 

Sasha Eisenberg So some of the critique of marriage as a priority in the movement in the 1990 is one once, once a sort of gained steam are sort of just priority trade offs. So some of the things Melissa was talking about now, you know, there was real progress in including sexual orientation, in nondiscrimination ordinances at the municipal and state level around things like housing, employment, lending. And it started to look like in Congress real opportunity to pass the Employment Nondiscrimination Act in 1996, which would have written sexual orientation into federal civil rights law, which still hasn’t been done. A quarter century later.

 

Kate Shaw Well, as a matter of statutory law, that is.

 

Sasha Eisenberg As a matter of statute. Yes, that’s it.

 

Kate Shaw Written statute. Yeah.

 

Sasha Eisenberg And and so I think that some people were just like, there’s lower hanging fruit, you know, where they would say we are getting Republicans to do things like, you know, vote for collecting statistics on hate crimes towards gays and lesbians. We’re getting, you know, the Ryan White AIDS Act got Republican votes that there are more pragmatic, less provocative things that the movement could focus on, where there were gains to be had and that marriage was reaching for this ridiculously far sighted thing that was just implausible and would blow up other other relationships in terms of like that pragmatic sort of reason for it. But then there’s a deeper ideological division that that that really emerges in the in the 1980s as a debate, albeit abstract, because there’s not a live case anywhere or piece of legislation that people are deciding whether to get behind about whether marriage is even a desirable goal for for the gay or lesbian community. And, you know, I think that it’s worth thinking of kind of like three separate factions here. One, the people who are arguing at that point that marriage should be a priority are sort of, you know, fundamentally assimilationist in their in their in their views.

 

Melissa Murray So this is like the Andrew Sullivan, the Evan Wolfson camp.

 

Sasha Eisenberg That’s right. Yeah. Yeah. So these are people who are saying sort of, you know, by the late eighties, we as gays and lesbians are defined by our relationships. Our relationships are the state and society as an extension treats our relationships as illegitimate or second class. And we will never win full citizenship until our relationships are regarded on equal terms with with heterosexual relationships. And so, yeah, that’s a big heave to win, but we can’t win anything until we have that breakthrough, that sort of that that’s the and the one that in retrospect sort of prevailed. There are the two other sort of opposing factions in there I think are a liberationist tendency within the movement that really emerged, you know, sort of post stonewall folks who were arguing gays and lesbians have defined themselves by intention with or an opposition to traditional mainstream American mores about sexuality. Why would we as a community and a political movement that has now gained some some power, use our political capital to win inclusion in institutions that have discriminated against and don’t reflect our values? And paraphrasing somebody like why would we fight to be part of the white picket fence, you know, bourgeois suburban lives of our parents.

 

Melissa Murray So this is kind of a queer theory critique. So sort of, you know, I guess emblematic of the work of someone like Urvashi Viard or maybe even Paula Abdul Brook, who is on the other side of that debate about whether marriage should be a goal. So that’s sort of the queer theory perspective, which is more liberation is what’s the third perspective?

 

Sasha Eisenberg Yeah. And so this is related to that is a sort of feminist critique of marriage. And it’s really important to realize that LGBT family law in the 1980s meant women female clients represented by female attorneys who were almost exclusively dealing with the circumstance of a woman who had been in a heterosexual marriage, has a child, a biological child with her husband, decides to come out of the closet, leaves the marriage and has to fight for access in court to her own children. And LGBT family law was dealing with that problem on behalf of women. And so the people who are debating LGBT family law were women, and many of them had gone to college and law school sort of shaped by by second wave feminist thinking, saw marriage as a fundamentally patriarchal institution that existed. It was perpetuated to subjugate women. And I think that their critique was far less as lesbians, but far more just as women saying why would we as women be fighting for inclusion in this institution that that isn’t built for us?

 

Melissa Murray So so this is like a martha FINEMAN. Like, why aren’t we talking about our relationships to our children based on the fact that we are caregivers as opposed to our heterosexual attachment at one time to this man, or the prospect of a same sex attachment to another woman?

 

Sasha Eisenberg Yeah. And then if there was a policy objective that was stated at this point by people like Nancy Paul Lakoff and and Paula Abdul Brecht, it was some version what people called multiple families, that the goal of, you know, what we would call LGBT family law would be to win recognition on equal terms for a wide variety of family structures single parents, co-parents, unmarried, married group, living family caregivers. And that that the goal should be to sort of break down the privileged position that marriage had as the one institution that the state recognized for the raising of children, the sharing of property, and that and that the goal should be a kind of of of flattening of of of all these different marriage types as as equal. And so what they opposed was that this and in retrospect, it totally has done this I think in both both gay and straight communities is that it is reify the idea that marriage is the one institution in which responsibilities property can be shared and and by extension sort of deal legitimized and the other possible arrangement between adults or single adults having a relationship with others.

 

Melissa Murray Now, so that’s really interesting to sort of have all of the different camps laid out and to understand that there is this practical underlay where people are just arguing we don’t have endless resources or endless time. Like if we focus on marriage, we’re not focusing on employment protections, we’re not focusing on HIV aids, we’re not focusing on the criminalization of same sex sexuality. So it is a question of just how to divvy up what are essentially scarce resources. Another point that you make, or you just made actually a couple of questions ago, was that Hawaii was unusual because there was no homegrown conservative movement. But as the book makes clear, one develops around this issue. So how does conservatism come to Hawaii? How does it get imported from where does it get imported? And how do the views of those objectors shape the debate in the mobilization around this movement for same sex marriage?

 

Sasha Eisenberg Yeah. So, you know, Mormons is the short answer. So the LDS Church becomes the first institution of any significance on the mainland to properly appreciate the significance of what the court in Hawaii does in May of 1993. It that this is one of the things that is, I really think just totally a function of distance, that that was a, you know, monumental landmark opinion by a state supreme court. And I think if it had happened in any of the 48 states on the mainland, legal academics, lawyers, politicians, activists would have understood very quickly its significance. But it gets covered briefly. You know, there’s a story in The New York Times and Wall Street Journal a day afterwards, Hawaii rules, and then people sort of move on. And the the LDS church had had and has a historic footprint in Hawaii dating back to missionary efforts in the late 19th century. It’s a large landowner in Hawaii. There’s a Brigham Young University campus there. And I write about a BYU law professor named Lynn Wardle, who is a sort of chief legal strategist within the church, particularly on family law matters. And he takes, you know, I think, recognizes what this decision means in Hawaii, which is that this has been sent back to trial court. There’s every expectation that the state will fail to demonstrate a compelling interest at trial to justify the exclusion of of same sex couples from marriage. And presumably then gay and lesbian couples will be able to marry him in Hawaii. And then the question is, well, what happens to people in the other 49 states, some of whom may travel to Hawaii to get married? The church leadership in Salt Lake City sort of understands this immediately or almost immediately. And they they set out a sort of three pronged response. One is they decide that the state attorney general, who’s a Democrat appointed by a fairly liberal Democratic governor, is not going to be as aggressive fighting this at trial as they would like. And so they try to intervene to defend the exclusion at a trial. They end up losing that ability to intervene in court. They begin networking with other socially conservative denominations on the mainland, especially the Catholic Church, but also some. Religious Jews, other Christian denominations to try to begin building an interfaith coalition against same sex marriage. And they decided to sort of create that homegrown opposition in Hawaii to try to fight this through the political process instead of through the courts. They accept sort of defeat in the courts. They decide that their only way to fight this is to amend the state constitution. It’s a dynamic we see in a number of states over the life of this issue. And the way that the LDS Church goes about doing this is they you know, one thing that you see as you dig into the sort of mechanics of how the church decides to get involved is that the Mormons have a very keen understanding of how they are viewed by the rest of the country, and they realize that that’s what suspicion and doubt and probably some sense of of otherness. And they realize that they are not good spokespeople for this movement. And so they create basically a front group in which the local archdiocese becomes the face of this movement with Mormon money and Mormon expertise and succeed in defeating some crucial pro-gay legislators in 1996, moving this to the ballot in early 97 and in the fall of 1998, Hawaii voters become the first in the country to write a ban on same sex marriage or limit on same sex marriage into the state constitution. And by that point, the the sort of mainland resistance that that the Mormon Church ceded has been taken over by evangelicals who helped to pass the Defense of Marriage Act in 1996 and then for the next 15 years, sort of lead the opposition to marriage equality in the states.

 

Melissa Murray [AD].

 

Kate Shaw So that’s a very succinct overview of the kind of conservative counter mobilization which is successful in first in Hawaii and then federally. A kind of related story that you tell in the book is about the religious rights interest in overturning Roe. How does the religious right link the question of same sex marriage to abortion rights? And how does the right or the conservative movement opposition to abortion scaffold its objections to marriage equality?

 

Sasha Eisenberg Yeah, So I think that there are sort of two important precursors for the coalition that fights marriage equality over two decades. One is the counter mobilization to ROE, which starts to come together in the late 1970s, particularly in the alliance between Catholics and and fundamental evangelical Protestants. And the other is the opposition era, which has some elements of the same coalition. But also Mormons are very involved in some of the state level fights to defeat the Equal Rights Amendment. And I think these are sort of different related lessons that they take out. One, is it simply like the infrastructure that is created to do politics from people who had been networked through churches can be applied for all those fights. And it’s some of this is like a distinction in the tax code. But once people who had been in churches figure out how to create the institutions to do state or federal politics, you could start to use that for other things. And it takes a while for social conservatives to do that. But you see the same names show up, the same organizations, the same people are drafting partial birth abortion laws that draft the Defense of Marriage Act. And it’s very much a story of infrastructure and sort of movement capacity building. The Equal Rights Amendment fights becomes, I think, instructive to them on how to do state level politics. The Mormons realize you can do some of this without your own fingerprints on it that you can build. There’s always this tension between Mormons and evangelicals, you know, dogmatic differences that lead to mutual suspicion. They’re wary of doing politics with one another, but they come to learn through Ira, that you can do politics with one another without accepting the other’s theology. And that becomes especially, you know, first in Hawaii and then in 2008, in the opposition to Proposition eight, the ability of that coalition that that shares very different theological views. But to figure out how to align on politics becomes a model. And so I think that those two examples and, you know, I think the big difference is that on the marriage fight, the right is operating on the front foot for most of this. They have public opinion on their side until 2010 ish. There’s every you know, the political classes of both parties is broadly accepting of anti-gay-marriage positions, which is quite different than where things were on on on the era and and abortion fights. And I think to some degree, they got complacent on the political fight around gay marriage in a way that they didn’t on abortion or era, because they sort of presume that they had structural advantages that would would see them through.

 

Melissa Murray This is really interesting. So you’re describing, Sasha, what is an almost symbiotic relationship between religious conservatism and the mobilization around same sex marriage by which the interest in same sex marriage and indeed support for it actually strengthens because of the intervention of the religious right. If that is the case, why can’t other progressive movements harness the introduction of these conservative elements in the same way? What makes marriage equality so distinct from other progressive causes which may actually wither under the pressure of religious conservatism? Whereas the interest in marriage equality and support for marriage equality actually flourished?

 

Sasha Eisenberg Yeah, I mean, so big question. Let me do my best here. You know, as we talk about like there’s roughly three factions within the the LGBT community in terms of their views on marriage. The thing that breaks down, down that divide and you could, you know, so you could still go into what remains of, you know, gay bars or cafes around the country and hear people maybe debate this in the abstract. But the actual political differences subside at the moment in the mid 1990s that the anti-gay right decides that they are going to make a priority out of fighting marriage equality. And there’s a quote I have, I think, from Paula Abdul Brecht, who is, you know, sort of the leading lesbian critic of the push for marriage rights. And she said something like, you know, the world is blowing up about our relationships. Of course, I had to fight back. And I think there is something about the unanimity that comes from having your opponents decide that this is something on which they want to fight you and you. Probably analogs in in progressive politics recently about how the sides become polarized because of the opposition deciding to make a priority out of something in which there was previous fracturing. I mean, maybe something like the debate over policing. Two years ago you had Democrats who were sort of had, you know, different views on on race and policing. But the moment that, you know, Donald Trump decided that he was all in on being cool with police brutality, you had 20 candidates running for president in 2020 and they all sounded more or less indistinguishable on on on a question like that. So I think that there are ways in which which movements benefit from it. I think one thing that’s really important here in retrospect is how that leads to some strategic and tactical errors on the right that that ultimately benefit the left, even though it takes a while to to pick up on. And some of that is that the right keeps on pushing this conflict to places and levels at which eventually it cannot win. So they take what had been a matter in the Hawaii judiciary rights as a matter of state constitutional interpretation that was going to be decided by some combination of the state Supreme Court, the trial court in Hawaii, and by introducing in passing the Defense of Marriage Act, which Bill Clinton signed into law in the fall of 1996. They make the state issue a federal issue, and they make this legal issue a political issue. Six, seven, eight years later, there’s a push for a federal marriage amendment. Now they’re taking this thing which had been a matter of federal statute and constitutional izing the debate over it. And eventually what that means is that this becomes something that in 2013, when the court rules in Windsor can be settled by five people in robes in Washington. That was a strategic decision that the right made to make this a federal issue that could be settled by that would have to be dealt with by the Supreme Court. And something I guess Congress could repeal the Defense of Marriage Act then, but seemed unlikely. And so there was a way in which, if the right had not engaged on this issue one, there would have been the internal divisions would have persisted within the LGBT community for a while, I think. But also this would have been a gradual state by state project, and maybe we’d be living now in a world where, I don’t know, 12, 14 states have have legal same sex marriage and a handful of others have civil unions, But it would never have been something that could have been settled in Washington. And so they the right push this conflict into places where it lost control of the terms of the of the conflict. And that was a major political miscalculation that the one the underlying change, Melissa, that I think differs this from other leftie priorities, though, is the social dynamic around basically exposure to gays and lesbians. And if there’s been one indicator through polling and other public opinion research about what drives opinion change on this issue, it’s how people answer the question, you know, do you have a friend, family member, coworker who is openly gay or lesbian? The first time I saw this poll question asked was in the early 1980s, I think were something like 20%, which in retrospect seems very high to me. But, you know, pollsters have basically stopped asking, I think, because everybody in the United States knows somebody who’s openly gay or lesbian and there’s a, you know, some form of a virtuous cycle of social acceptance. People come out, people around them now know somebody who’s gay or lesbian, what social scientists call contact theory that creates greater social acceptance. And I think it’s really important to realize to appreciate the the ways in which here sexual orientation and gender identity are fundamentally the random the seemingly random assignment of differences in gender sexual orientation, gender identity in a population is a fundamentally liberalizing force. And, you know, we the way that the reason that that same engine, that virtuous cycle doesn’t work the same way in terms of of liberalizing attitudes on race or religion is that we have these structures of residential segregation, of other forms of social stratification. You know, so if you’re a white person, you’re not necessarily going to realize that you have an African-American neighbor or a if you’re Catholic, you’re not going to realize that you have a muslim cousin. But people are finding that there are gays and lesbians in their own house and on their own block and in their own their place. And that that, I think, is the big driver of of of underlying a public opinion change on attitudes towards gays and lesbians.

 

Melissa Murray That’s really interesting. I think a lot of people have sort of talked about this idea of like same sex relationships are a high touch kind of. Enterprise where people just know someone who is in one or who is openly gay. You could also probably say the same thing about abortion, though, for example. I mean, like there’s lots of statistical evidence that suggests that, you know, one in four, one in three people have had an abortion, yet we don’t see the same kind of pickup. And I wonder if part of the difference isn’t that at some level, even the social conservatives who object to the introduction of same sex couples to civil marriage recognize that at bottom the prospect of marriage is, at its core, a conservative kind of enterprise.

 

Sasha Eisenberg Yeah, I mean, I do think one part, one distinction that’s important is that abortion has been fundamentally private and marriage is a, by its definition of ugh.

 

Melissa Murray The most public private institution in the world.

 

Sasha Eisenberg Yes, exactly. And so that’s an important difference. One thing that we we see is that the conservatism. Yeah. I mean, I think some of the opposition, as this became a priority within the community, was all of a sudden the gay rights movement in the early part of the century looked like its two priorities were fighting for inclusion in the military and marriage, like arguably the two most conservative institutions in American life. And one aspect of the conservatives, which I think is really important for why opposition to to marriage rights subsides is it doesn’t cost the majority anything here to accede to the rights of the minority. And I think it’s really important to think about other civil rights movements, social movements to which marriage equality is often compared as not just debates about these public values of equality or justice or fairness, but also fight over scarce resources. You know, like.

 

Melissa Murray Marriage is an endless resource. Everyone can get married.

 

Sasha Eisenberg Yeah. And, you know, when women won the vote, it it depleted the political power of men when desegregation of of schools were a fight for access to to neighborhood institutions. Affirmative action is explicitly a fight for for scarce resources. So the people felt like they were losing something. And it was very hard once states began to legalize same sex marriage for opponents to actually find people who felt harmed by it. I mean, one of the the you know, I think a fun thought experiment would be like, what if the state of California had only 10,000 marriage licenses or 100,000 marriage licenses to give out in a year? Would that sort of, you know, whatever that the white moderate of the liberal straight person of the of the marriage debate? Would that person have been so quick to support equal marriage rights for gays and lesbians if they thought that that meant that, you know, their kid would now have to wait an extra six months to get married because they’d be on line behind other people. And so the lack of scarcity here, I think, makes that the shift in coalitions much easier and becomes makes it a lot harder to organize a coalition in opposition because nobody ever was asked to give up something. And so the the arguments against marriage equality were always these incredibly apocalyptic, you know, like Rick Santorum saying like, this is going to be end of Western civilization as we know it. I mean, literally pretty crazy claims that were actually falsifiable. So everybody says, like once Massachusetts starts legalizing, it starts actually letting gay and lesbian couples marry in May of 2004. It’s going to be end of American societies and the end of the family as we know it. It’s the end of Western civilization. And within a year or two, they cannot actually point to anybody who has been harmed by this other than like the, you know, one father who was kicked out of a school board meeting because he complained about a book that showed a married couple that after three years, that’s what opponents of gay marriage could show as the harm that had been done in Massachusetts. And that that’s not the stuff of backlash.

 

Kate Shaw You sound right now like kind of the note that you end in your conclusion to the book. You sort of note that the same activists who are I’m quoting here on their second generation of strategizing around a path to unwind Roe immediately accepted the permanence of Obergefell. Right. So they’re just like was not really a concerted effort to resist Obergefell, at least in the immediate aftermath. So I want to I want to quote that language. Then I want to come back to where Melissa started us, which is with the Dobbs opinion and in the Thomas Concurrence in Dobbs. So of course, that happens after your book is already published. So I guess I want to ask and just to remind people, write Justice Thomas in his concurrence in Alito’s majority opinion, overruling Roe and Casey Thomas suggests that the court’s whole line of substantive due process decisions, which includes Lawrence versus Texas and Obergefell versus Hodges, is constitutionally infirm. And the court should revisit those opinions at the first possible opportunity. So I guess, one, does that call into question these the sort of the kind of baseline conclusion that you draw at the end of the story you tell about the kind of acceptance of Obergefell? And then I guess a related question is you do note that there were some responses that. In the form of frontal attacks on Obergefell, but more in the spirit of codifying the Alito dissent and its concern about religious liberty based objections to participation in marriage. Because when you say that, you know, people didn’t have to give something up if they stopped objecting to same sex marriage, well, Alito says, yes, people have to give up their conscience rights if they’re compelled to participate in some fashion in the solemn association of marriage is right. Of course, the case the court is considering right now three of three creative involves a website designer a couple of years ago in Masterpiece Cakeshop, which you talk about. We were told we had a baker who didn’t want to bake cakes for same sex weddings or celebrations. So, I mean, I guess do you have a sense of predictive of where resistance goes now in Roe? Wasn’t that controversial for a few years either? You mentioned the late seventies, sort of the kind of mobilization against Roe had coalesced. But, I mean, are we in this kind of quiet before the storm, the sort of seven year mark post Obergefell and things, the resistance is really going to kick into gear in earnest To the extent you have any sense from having really steeped yourself in this history.

 

Sasha Eisenberg Yeah, you know, so I’ve certainly had to revisit a lot of my assumptions about how how dead and settled this was. I thought I would spend more time in researching this book after Obergefell chasing, you know, a real backlash, probably having over read stuff about Brown v Board and Roe v Wade and was sort of shocked at that, that the lashing out afterwards, you know, the most memorable part of which was sort of like Kim Davis, the Kentucky county clerk who was briefly jailed for for refusing issue licenses. You know, people forget that immediately after Obergefell, you know, a couple of governors initially said that they were not going to accept the mandate. Bobby Jindal proposed abolishing the Supreme Court. But that went away pretty quickly. Some part of that, in retrospect I really see now is Donald Trump announced his candidacy for president ten days before the Obergefell decision. You know, play the most talented demagogue of of our lifetimes. But we hope you decide. Yes, I respect your optimism. The but, you know, he decided to make his primary campaign about differences in religion and gender. But we can talk later about why it might be that Donald Trump isn’t terribly judgmental about who people marry or want to have sex with. But like, that’s that’s not that’s never been a focus of of his his politics. And so, you know, what we have seen I think in the last year in the political sphere is a reemergence of generally an anti LGBT politics that certainly, you know, there was all sorts of stuff that happened at the administrative level in the administration, but was not a focal point of Republican politics during the Trump presidency. And that has come back out into the open, I think, in Republican politics. You know, the don’t say gay laws, the anti-trans stuff is vicious. Anti in the rumor stuff is a lot of that. It just sort of, I think been suppressed by the fact that Trump did not have a personal attachment in that to that type of stuff, even if he benefited from it in places. I will leave it to you to count noses on the Supreme Court about whether you think that that Thomas could ever find four other justices who are eager to go along with with that reading? I think, you know, you do start to hear from conservative legal minds that the alliance interests and marriage are different than abortion. I don’t know if that is a an attempt to cover for. A lot of them said they were never going to go after Roe two. And maybe this is is a way of of putting a nice face on it. You know, after after California passed Proposition eight in November of 2008, the state courts had to figure out what to do with the 18,000 or so couples who had married in that four or five month window when it was legal. And they decided the old marriages could stand, but new marriages couldn’t go forward. So it’s not as though there’s no way to work out some version of what you do with existing marriages that were codified under a previous regime. What I will say, though, is that there I do not think that there’s been the political demand side for action on marriage that you do see now on other LGBT anti LGBT politics on the right. You know, and maybe this is the calm before the storm and we would get together in five or ten years and realize this is like was was naive beyond belief. But you know I look at the confirmation hearings search for marriage or Obergefell and in the transcripts of any of the three justices who were confirmed under Trump, the same that the conservative senators who are trying to get them to commit to things around abortion are not treating that as part of the conservative legal project to go after Obergefell. And part of that is they read polls. And, you know, we saw as of 2022, 70% of Americans support marriage equality, 50% of Republican. It’s moving only in one direction. It’s not inevitable that that moves only in one direction. But every indication we’ve seen has been that this has been like the fastest moving on a on a sort of political issue like this in a long time. And I think that that the same factors that drove the right to abandon the marriage fight very early, even before Obergefell was decided, when they realized it was lost and decided to move on, still apply, which are that they see more promising terrain around trans issues, gender identity issues. And then the other part of it is, is we, you know, the the religious exception, the religious liberty, religious freedom exemptions. And I think that that is a place where there is far more likely a far more likely to see this court begin to carve out space for private actors to effectively, you know, exempt themselves from the court’s mandate in Obergefell. And I think that that’s that’s not a frontal attack on on the rights of same sex couples to marry. But could you end up in a position where, you know, five, ten years from now they’re you’re saying something similar to like the Hobby Lobby approach to abortion, which is could arguing that an employer doesn’t have to give medical benefits to the same sex partners of same sex spouses of of employees if if shareholders or the board finds it contrary to their to their religious belief. I think that’s that’s probably some version of the worst case scenario of where the backlash leads. And I think there really is political demand on the right for for that. And then we end up in a situation where we’re asking like, what is marriage? What is civil marriage actually mean anymore? If if one government office can say you’re married, but then the rest of the government is telling the remainder of society that they don’t really actually have to to value that.

 

Melissa Murray That seems like a really good place to end this, recognizing that there is something here that is subtle, but so much that is left to be determined and that the court will have a lot to say about this, even if it doesn’t frontally confront the question of Obergefell versus Hodges. So. Sasha, thank you so much for such a wide ranging conversation. The book was truly a delight. I mean, you really covered everything about this movement and did so with such elegance and comprehension. So thank you so much for this terrific book and this terrific conversation. Listeners, the book is The Engagement: America’s Quarter Century Struggle Over Same Sex Marriage, and it is available at all major outlets, and it’s a Strict Scrutiny two thumbs up.

 

Kate Shaw Thanks, Sasha.

 

Sasha Eisenberg Thank you. It’s great to be here.

 

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell. With audio engineering by Kyle Seglin. Music by Eddie Cooper. And production support from Ashley Mizuho, Marco Martinez, Sandy Girard and Ari Schwartz, and digital support from Amelia Montooth. Thanks so much for listening.