I was sitting in an airport when the United States Supreme Court announced its decision, six years ago, in Obergefell v. Hodges.
As I watched on an elevated television screen and obsessively refreshed various websites, the court legalized same-sex marriage across the country. In a lengthy majority opinion, Justice Anthony Kennedy stressed that states denying marriage licenses to same-sex couples violated the 14th Amendment. “The Court now holds that same-sex couples may exercise the fundamental right to marry,” Kennedy wrote. “No longer may this liberty be denied to them.”
Each dissenting justice wrote a separate opinion, emphasizing the pitfalls of judicial activism, the importance of legislative democracy, and the danger of the decision to religious freedom. Justice Antonin Scalia even compared the majority’s arguments and conclusions to “the mystical aphorisms of the fortune cookie.” Still, by a 5–4 vote the court held state prohibitions on same-sex marriage unconstitutional. Same-sex couples were free to marry throughout the United States.
It was a remarkable moment, one that was, according to the authors of two new books, decades in the making. In Marriage Equality: From Outlaws to In-Laws, legal scholars William Eskridge and Christopher Riano trace the history of the same-sex marriage movement in the United States, beginning in the 1970s and culminating with Obergefell some 40 years later. And in The Engagement: America’s Quarter-Century Struggle Over Same-Sex Marriage, journalist Sasha Issenberg covers the strategies and tensions motivating rival groups of political, legal, and social activists.
These are thorough, all-encompassing books, a combined 1,800 pages of history, footnotes, and additional sources on the development of same-sex marriage in American society. But in addition to providing rich legal and political history, both books offer an important record of the ways in which pro-LGBT activists and social conservatives—particularly conservative Christians—approached this battlefield. Readers catch a glimpse of the then-developing Christian legal movement (CLM) in these accounts, seeing how actors in this movement opposed same-sex marriage as a threat to the traditional family and, importantly, religious freedom.
While Obergefell was the final step on the legal journey to same-sex marriage, it opened the door to several other constitutional questions. The fight over same-sex marriage may be over, but as related battles rage at the intersection of sexual orientation, gender identity, and religious freedom, Christians can look to Marriage Equality and The Engagement for insight on what did and didn’t work in the past—and what might work in the future.
The interplay of law, politics, and culture
Any history of same-sex marriage in the United States has to start somewhere, and for Marriage Equality, it starts with Jack Baker and Mike McConnell. After meeting at a party in 1966, the two men fell in love and applied for a marriage license in Minnesota, but were told that state law did not permit marriages between people of the same sex. This led to a lawsuit and eventually a defeat at the Minnesota Supreme Court, followed by the US Supreme Court unanimously dismissing their case, Baker v. Nelson, for procedural reasons. These were, according to Eskridge and Riano, among the first steps in a process that “started the nation on a legal roller coaster that lasted almost half a century.”
Apart from the formal constraints of laws and court judgments, Eskridge and Riano keenly recognize the role that perception plays in the American legal system. For example, they highlight the story of Ninia Baehr and Genora Dancel, the couple at the center of Hawaii’s same-sex marriage case in the early 1990s. They were, according to the authors, “ideal plaintiffs because they were articulate, mediagenic, and nonthreatening.” The authors later identify television programs like Ellen and Will and Grace as crucial to shifting society’s perception of the LGBT community, paving the way for advances in law and policy in the years to come. While the Defense of Marriage Act became law in 1996, within a decade the sands of public opinion had begun to unmistakably shift.
That said, Marriage Equality is heavily grounded in the law. The authors ably walk through the intricacies of court cases, as well as the history and motivation of legislation at varying levels of government. For a book authored by legal scholars and focusing heavily on statutory and constitutional questions, it is surprisingly readable. It is presented as a lengthy yet intuitive narrative, highlighting early developments as essential building blocks for later ones. Eskridge and Riano identify a variety of otherwise disconnected events—from the failed Equal Rights Amendment to the HIV pandemic—as essential to understanding why the fight over same-sex marriage turned out the way it did. The result is a detailed tapestry of law and politics, one that should appeal to scholarly and popular audiences alike.
If Marriage Equality is a veritable encyclopedia of the legal development of same-sex marriage, then The Engagement is its taut, stylized counterpart. True to his profession, Issenberg’s account is more journalistic in its treatment of the evolution of same-sex marriage. This does not mean the book is any less documented or resourced than Marriage Equality, but Issenberg tends to focus less on legal arguments and legislative details and more on the actors instigating these conversations. The result feels more personal, making it a fine counterpart to the more scholarly Eskridge and Riano volume.
Issenberg begins his account of American same-sex marriage in 1990, with the aforementioned Hawaii lawsuit. From there, he carefully walks through key events on the journey toward Obergefell, attempting to put the reader in the middle of important conversations among White House officials, attorneys, and activists, among other important players. Issenberg writes at length about figures important to this story yet likely unfamiliar to many readers, from Phil Burress and Maggie Gallagher to Mary Bonauto and Tim Gill. The book’s title is not just a nod to the precursor to marriage, but also a description of the battles that took place among rival actors in this sprawling universe.
Still, Issenberg does not dismiss legislative and legal outcomes; if anything, his focus gives these outcomes clearer meaning. It is one thing to talk about the battle over, say, state constitutional amendments banning same-sex marriage, but it is another to discuss the numerous factors and personalities that explain why these amendments ended up the way they did, adopted by various state legislatures and voters and later struck down by the nation’s highest court. For Issenberg, laws can only go so far in explaining something like Obergefell; for a full picture, you have to look at the people involved.
Both Marriage Equality and The Engagement frame the journey toward same-sex marriage in an overtly positive way. That is, the authors do not conceal their approval with the way in which the story ended, and they regard the decision in Obergefellas nothing less than a watershed moment for American civil rights. Eskridge and Riano write favorably of Obergefellas contributing to a stronger, more stable social policy for families, while one of Issenberg’s chapters—focused on the lead-up to Proposition 8, the California initiative that defined marriage as between a man and a woman—is pointedly titled “The Mormon Empire Strikes Back.” As a result, readers opposed to legal same-sex marriage may feel like the villain in these narratives, even if neither book explicitly says so.
Read together, these two books serve an important purpose. By methodically and deliberately telling the story of same-sex marriage over the last several decades, they highlight the interplay of law, politics, and culture in a way that transcends any one issue. Yes, these books are substantively about same-sex marriage, but their accounts emphasize the complexity and breadth of this process. In the years ahead under the Obergefell precedent, while related cultural conflicts take shape, this is a lesson conservative Christians would do well to remember.
Conservative Christian activism
The Christian legal movement may not have existed during the opening rounds of the same-sex marriage debate, but it played a significant role during the home stretch. Eskridge and Riano’s account begins roughly two decades before the establishment of key Christian conservative legal organizations (CCLOs), including Alliance Defending Freedom (ADF), the American Center for Law and Justice (ACLJ), and Liberty Counsel (LC). Nevertheless, the influence of the CLM in the argument over same-sex marriage and related issues is impossible to ignore.
As I note in my book Defending Faith: The Politics of the Christian Conservative Legal Movement, many CCLOs made support for traditional marriage and opposition to same-sex marriage a central part of their advocacy, often connecting this work to their support for religious freedom. While earlier instances of conservative Christian activism questioned the morality of same-sex marriage, the CLM tended to frame its opposition in both legal and social terms. Importantly, there were real differences among CCLOs in their legal strategies in this area, differences referenced by the authors of both books.
The CLM features regularly, if not prominently, in both Marriage Equality and The Engagement. Eskridge and Riano dedicate most of their attention on CLM matters to ADF, and for good reason: ADF is, without a doubt, the most successful and wealthiest organization in the movement. Its fingerprints on the same-sex marriage battlefield are undeniable, ranging from advising local and state legislators to representing Proposition 8 at the Supreme Court in Hollingsworth v. Perry.
Eskridge and Riano also highlight ADF’s strategy of putting forward sympathetic plaintiffs—such as Jack Phillips and Barronelle Stutzman—in its efforts to paint advocates of marriage equality as, ironically, intolerant. “ADF lawyers,” they argue, “feast on these scenarios like famished dieters.” This strategy has only intensified in recent years, expanding to encompass female athletes opposing biological males competing in girls’ sporting events.
Issenberg, while also focusing heavily on ADF, acknowledges other key actors in the CLM. He tells a story of the ACLJ’s Jay Sekulow encouraging Republican presidential candidates in 1996 to sign a resolution pledging to oppose same-sex marriage. Issenberg also highlights LC’s attempt to intervene in defense of Proposition 8, when it accused ADF of being “willing to concede too much” of the opposition’s case. Indeed, when the district court initially ruled against Proposition 8, LC criticized ADF’s handling of the case. As Christian legal groups continue to influence American law and politics in the years ahead, these books offer important insight into some of the movement’s earliest advocacy.
Looming challenges
In the six years since Obergefell, conservative Christians have achieved a number of important legal victories, not just in terms of wins at the Supreme Court—including Masterpiece Cakeshop, Our Lady of Guadalupe Schools, and Fulton—but also in terms of the jurists themselves. President Donald Trump put three religious-freedom-friendly justices on the court, to say nothing of his overhauling the lower courts in a markedly more conservative direction.
But while the legal realm seems favorable to conservative religious views at the moment (especially relative to LGBT rights), the broader culture is moving in a decidedly different direction. Church membership is down across denominations, and support for same-sex marriage is at an all-time high, including among conservatives. The victories religious conservatives secured during the Trump years are increasingly at odds with a changing culture.
Related to these cultural pressures are political and legal ones. The Equality Act has made significant headway through Congress, and would likely be heading to President Joe Biden’s desk were it not for the Democratic Party’s razor-thin margin in the Senate. Bostock v. Clayton County formally recognized sexual orientation and gender identity under federal civil rights law, which some Christians interpreted as a threat to First Amendment protections for religious exercise. And lawsuits continue to pit the civil rights of LGBT Americans against the religious convictions of business owners, nonprofit organizations, and colleges and universities.
With these challenges looming, what is there to learn from the journey toward same-sex marriage as presented in Marriage Equality and The Engagement? Both books highlight the importance of an engaged posture in inevitable cultural conflicts. Those opposed to same-sex marriage did not sulk away or concede the fight, despite the air of inevitable defeat in certain legal cases. Likewise, Christians should not stop fighting even in the face of insurmountable odds; we are called to seek justice, though not necessarily to win.
That said, our posture in these conflicts matters a great deal. In his recent essay on the Equality Act, Matthew Lee Anderson argues that Christians are not blameless in fueling the fire of the culture wars. He references social conservative rhetoric on Colorado’s Amendment 2 as creating suspicion of Christians in the LGBT community. “Careful arguments don’t move votes,” he writes, “but the extremist rhetoric necessary to win tends toward disrespect and also generates a backlash.” Christians should pursue justice and defend truth without demeaning our fellow image bearers; our posture ought to reflect this, not contradict it.
Beyond adopting a gospel-informed posture in our cultural engagement, Christians must also reject zero-sum thinking in our politics. It is far too simplistic (not to mention politically unsustainable) to adopt an “If you win, I lose” mentality. This is not to endorse a naïve, Pollyannaish view of politics, but instead to commend a positive vision of pluralism, one that recognizes deep differences while actively pursuing reconciliation.
Christians and other social conservatives have done this before. Prior to Obergefell, the Utah legislature adopted a compromise aimed at enshrining LGBT rights into law while simultaneously exempting some religious institutions from these new laws. This “Fairness for All” model remains a path forward in ongoing disputes between religious freedom and LGBT rights.
Opponents have critiqued Fairness for All on multiple grounds, with LGBT-rights activists saying it opens the door to discrimination and some Christians saying it isn’t protective enough. That these critiques are reasonable, given the competing perspectives in play, shouldn’t halt the process altogether. These are messy conversations, touching on some of the deepest aspects of identity and some of the thorniest constitutional questions. And since these disputes are inevitable in a pluralist society, Christians should be working toward a solution rather than walking away from the table.
Working on our witness
Books like Marriage Equality and The Engagement are important. They tell a complicated and sweeping story in a way that makes it accessible to nonexperts. Even though their authors surely oppose Christian views of marriage, they still offer many insights we can gratefully take into account. This is not so we can prepare to capitulate in the face of future challenges. The goal, like a team surveying game film the morning after a tough loss, is identifying what went well and, just as importantly, what we can do better.
Reflecting on past successes and failures is work worth doing for Christians, especially on the range of issues related to same-sex marriage. Yes, we can refine the arguments we make to a suspicious culture, but we can also improve how we make these arguments. Our most convincing case will fall on deaf ears if the world does not think we’re worth hearing. After all, we shape culture not just with our arguments but with our witness to a skeptical world. As a redeemed people with an eye toward eternity, we should remember that.
Daniel Bennett is associate professor of political science at John Brown University, where he is assistant director of the Center for Faith and Flourishing. He also serves as president of Christians in Political Science.
