Marriage Equality’s Debt to Loving v. Virginia

Nathaniel Frank, who leads Columbia Law School’s What We Know Project, on the parallels between civil and LGBTQ rights.

Nathaniel Frank
It was 50 years ago this week that the U.S. Supreme Court ruled unanimously in Loving v. Virginia that laws prohibiting interracial marriage were unconstitutional. That landmark decision also paved the way for the Supreme Court’s marriage equality rulings—United States v. Windsor (2013) and Obergefell v. Hodges (2015), notes historian Nathaniel Frank, the author of the newly-published book, Awakening: How Gays and Lesbian Brought Marriage Equality to America. Frank directs Columbia Law School’s What We Know Project, an online research portal that is aggregating scholarly research on LGBTQ issues. In an interview, he explained marriage equality's debt to the Loving ruling. 

This interview was lightly edited for clarity and space.

Q. What was Loving v. Virginia’s legacy for the LGBTQ movement?

Frank: The LGBTQ movement modeled a great deal of its identity and strategies on the civil rights movement—the idea that gay people were a minority that deserved rights. All of this was borrowed from the black civil rights movement. Lambda Legal was modeled on the NAACP. And the legal strategy to amass a significant number of states to support gay rights is what Thurgood Marshall and the NAACP did to end segregation in schools and marriage.

I think that whenever you talk to people in the LGBT community who are students of history, they will rightly credit the black civil rights movement. It’s something that needs to be taught and people need to be reminded about. Certainly, students of queer history understand this debt.

In your book, you write about a little-remembered 1972 same-sex marriage case, Baker v. Nelson, which reached the Supreme Court. What was the significance?

There was this same-sex couple, Jack Baker and Michael McConnell. Baker asked McConnell to move in with him, and McConnell agreed as long as Baker would figure out how to “make an honest man of him” by figuring out how they could get married. So Baker enrolled in law school in order to find a way to keep his promise to McConnell. Baker noticed that Minnesota’s marriage statutes did not mention gender—until the backlash later— so they tried to exploit that loophole to get married. Baker changed his name to Pat, which was gender amorphous, to successfully get a marriage license. But they couldn’t get their marriage recognized by the state, which eventually led them to the Supreme Court. The case was dismissed “for want of a substantial federal question,” according to the court. 

They weren’t the only ones who wanted to get married. Inspired by the civil rights movement—and the anti-war movement and the counterculture—thousands of same-sex couples had ceremonies and got married in the eyes of their communities in the 1970s. Loving v. Virginia was really part of the inspiration—the same desire to express love and commitment between two equal partners. It was about not maintaining privileges of gender or racial or sexual orientation hierarchy. 

Is there still a threat to marriage equality?

I think that the threat exists around the margins. And the election of Trump has made it ever more essential to protect all marginalized people. It would be very difficult for the Obergefell decision to be reversed and upended. [In Obergefell, the Supreme Court ruled that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the 14th Amendment, couples of the same sex may not be deprived of that right and that liberty.”] But if people are given the right to opt out and discriminate because of moral and religious objections, then that challenges the equal dignity that was essential to the marriage equality battle. We must be vigilant to protect marginalized people in many communities.

What is the legacy of the marriage equality movement for other civil rights struggles?

I hope one of the lessons is to be pragmatic when you are trying to advance social change. I think marriage got pushed along by pragmatists who are sometimes called accidental activists. The movement became very strategic in plotting out a course to win by choosing locations and venues, when and where it was most advantageous to sue—or not to sue—laying the political groundwork where those advances would stick. In many ways, embracing marriage, parenthood, and military service was a pragmatic decision by movement activists to recognize that they should be at the center of society. LGBTQ rights were advanced in an incremental fashion. The most enduring way to advance a cause is by learning to speak the language of those you are trying to attract, rather than those who already agree with you. You’ve got to be strategic.


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Posted on June 13, 2017