During a college visit to Colorado in September, Ruth Bader Ginsburg told students that she expects to rule this coming term on the Defense of Marriage Act. The 1996 law is already on its deathbed — since last year, the Justice Department has refused to argue in court for its constitutionality — but it remains on the books. That means the 130,000 or so married gay couples in America receive none of the federal benefits that straight married couples do.
Naturally, Ginsburg wouldn’t be drawn out on how she’d vote. But Michael Klarman, a Harvard law professor, former Ginsburg clerk and author of a new legal history of same-sex marriage, thinks he already knows the outcome. “The handwriting on the wall is as clear as it ever gets,” he writes. DOMA is going to be scrapped, and soon after same-sex marriage will be the law of the land.
How can he be so sure? Well, that’s the story of From the Closet to the Altar, which looks at the litigation of gay life — and specifically gay marriage — from World War II to today. It comes on the heels of Victory: The Triumphant Gay Revolution, Linda Hirshman’s excellent recent history of the American gay rights movement. Klarman’s book, in turn, chronicles how the courts responded to that movement — and how judges who once dismissed gay equality out of hand now seemed poised to enshrine it in law.
In the 1970s and 1980s, gays made important strides on issues from police harassment to employment to health. But it wasn’t until the mid-1990s, when Hawaii came close to legalizing same-sex unions, that both gay advocates and homophobes began their battle royale. The Hawaii case set off a state-by-state arms race to legalize or block gay nuptials: As of today, six states and Washington, D.C., allow same-sex marriages, with three more — Maryland, Maine and Washington — likely to join them this year.
The 50-state marriage battle may be messy, but it has had one major benefit: Some gay Americans can wed, and that has helped acclimate the country to its inevitable legalization nationwide. As a question of constitutional law, same-sex marriage is a no-brainer to anyone who has ever read the 14th Amendment. In his meticulous opinion last year, Vaughn Walker, the judge in the California case Perry v. Schwarzenegger (later Perry v. Brown), wrote that while laws concerning gays must be given “strict scrutiny,” the highest level of analysis, a law forbidding gay marriage doesn’t even meet the “rational basis test,” the lowest level.