When the Supreme Court hears oral argument next Tuesday in the cases challenging state bans on same-sex marriage, the named plaintiff, a gentleman named Jim Obergefell, will in many ways seem familiar to the court. Like Edie Windsor, the plaintiff in the case two years ago in which the Supreme Court struck down the Defense of Marriage Act, Obergefell is white, professional, middle- to upper-class, and widowed. Of course, this is no coincidence.
Just like the choice of Windsor, the choice of Obergefell and other plaintiffs was part of a careful strategy on behalf of same-sex marriage movement attorneys to put forth and portray plaintiffs the justices could relate to and respect. By itself, this is not terribly surprising, nor necessarily problematic. Dating back at least to the civil rights movement and Brown v. Board of Education, conventional impact litigation wisdom has dictated that plaintiffs chosen to represent movements must be blemish-free—they must be respectable.
But what is surprising, and somewhat disheartening, is the degree to which the marriage movement adhered to this strategy even after the Supreme Court’s decision in Windsor. By most accounts, including those of Justice Antonin Scalia, after Windsor the writing was on the wall that the court would soon proclaim marriage equality to be the law of the land.
There are (depending on how you count) roughly 90 different cases and 600 plaintiffs challenging the constitutionality of same-sex marriage bans. The lion’s share of these cases were initiated after the court issued the Windsor decision in 2013. A review of the complaints crafted by the plaintiffs’ attorneys in these cases reveals a rather astonishing commitment to the conventional plaintiff-selection wisdom and a missed opportunity to expand the nation’s view of queer people and the host of intersectional issues afflicting LGBTQ communities. Put differently: Rather than challenging conservative norms, the narratives drafted by the marriage movement in many ways embraced them.
For example, filing after filing emphasizes that the plaintiffs are devout Christians, military veterans, law enforcement personnel, and otherwise mainstream professionals and productive members of society. Should access to marriage, or equal treatment more broadly, be contingent on satisfying these demographic characteristics? An individual’s piousness and professionalism is simply not legally relevant.
Largely absent from the complaints were portrayals of people suffering from unemployment, over-incarceration, racial injustice, transgender discrimination, or the HIV epidemic. In fact, there is virtually no mention of plaintiffs who are identified as bisexual, HIV-positive, or transgender. That certainly does not mean that such individuals were not included among the hundreds of plaintiffs. Perhaps they were. But if so, the complaints’ failure to mention these attributes only reinforces the degree to which the movement downplayed these issues.
Consider what a powerful, symbolic commitment to justice it would have been if, this summer, when granting marriage equality to same-sex couples, the Supreme Court did so not because the plaintiffs were the same as the justices—largely middle-class and socially “straight”—but notwithstanding that they were radically different, they were “other.” Instead of a police officer, a former inmate. Instead of a physician, someone living with HIV. Instead of a wealthy woman in pearls, someone who was homeless.
The selection of such representatives would probably not have hindered the court from finding in favor of marriage equality. Indeed, LGBTQ causes have had success at the court even with plaintiffs who were much less “respectable” than Windsor or Obergefell. Prior to the court’s decision in Windsor, the most important decision for LGBTQ rights was Lawrence v. Texas, where the Supreme Court struck down anti-sodomy laws as unconstitutional. Lawrence involved two atypical plaintiffs both of whom had criminal records, and one of whom was unemployed. Notwithstanding their lack of pedigree, the Supreme Court found in their favor and recognized the injustice of criminal anti-sodomy laws.
Don’t get me wrong. I have and continue to support the marriage equality movement and greatly admire the courageous plaintiffs involved in the litigation. And I know that the tremendous movement litigators are sensitive to the issues I’ve raised. But as the Supreme Court gets ready to consider marriage equality next week, and as the marriage movement begins to pivot more aggressively toward other issues afflicting the LGBTQ community, now seems a good time to reflect on whether, going forward, the movement can be more expansive and inclusive in how it confronts those issues. By doing so, we can take important steps toward transitioning from a movement about marriage to a movement about justice.
James Castle provided research assistance for this piece.