At Long Last Marriage

I. INTRODUCTIONWe queers of Revelation hill, tucking our skirts about us so as not to touch our Mormon neighbors, died of the greed of power, because we were expendable. If you mean to visit any of us, it had better be to make you strong to fight that power. Take your languor and easy tears somewhere else. Above all, don't pretty us up. Tell yourself: None of this ever had to happen. And then go make it stop, with whatever breath you have left. Grief is a sword, or it is nothing.1On May 30, 2015, a sweltering Saturday, I stood on the roof of the Bryant Park Grille in New York City officiating at the wedding of two wonderful young men, one of whom I have been close friends with for over fifteen years.2 As I looked out over Bryant Park prior to the start of the ceremony, I was overcome by joy at the momentous nature of the day and overwhelmed by the realization that we were in a historic moment that I never imagined I would live to see. Here I stood, a gay man in his fifties who had been toiling in the vineyard of the gay rights movement for over thirty years, as an activist, as an attorney, and as a teacher, bearing witness to a marriage between two loving men that was recognized as legal by the State of New York and by the United States.As one who lived through the horrid days of the early AIDS crisis and buried too many friends along the way, I also could not help to think of all those too numerous to name who were not there to bear witness to such an amazing day. Throughout all these years, I have watched and represented loving gay and lesbian couples as they struggled to piece together some legal protections for their relationships and their children in the face of a hostile, if not indifferent, legal system. Some marvel at the rapidity with which the legal changes surrounding same sex marriage have occurred. But this marveling only ignores the blood, sweat, tears, and death over centuries that led us to this historic moment.I certainly realize that beginning a law review article with such a bold personal reflection is not ideal, but on this specific issue, I would ask for a bit of indulgence. While this article is certainly about the legal process that led to the Supreme Court's decision in Obergefell, recognizing that state prohibitions on same sex marriages are unconstitutional,3 it is also deeply personal because all the stories that led to this moment are somehow also my story.Part II of this article explores the development of Justice Kennedy's jurisprudence related to the application of the doctrines of equal protection and due process through Romer,4 Lawrence,5 and Windsor,6 the trilogy of gay rights cases in which he wrote for the Supreme Court prior to Obergefell.7 This discussion culminates in an analysis of Justice Kennedy's majority opinion in U.S. v. Windsor,8 which provided the basis for a vast expansion of the right of same sex couples to marry across the country, ultimately placing the issue squarely before the Supreme Court for decision in Obergefell. Part III then examines the impact Justice Kennedy's analysis in Windsor had on the United States Courts of Appeals addressing the constitutionality of state bans prohibiting the recognition of same sex marriage, leading to the decision in Obergefell. Part IV then provides an extensive examination of the Supreme Court's decision in Obergefell, looking first at the oral arguments before the Court and then the decision itself. Part V, the conclusion, examines the aftermath of the Court's decision in Obergefell, placing Obergefell in its proper context in the journey for greater inclusion of and protection for gay and lesbian persons and identifying some of the very complex issues that still lay ahead.II. THE LEGAL ROAD TO OBERGEFELL: ROMER TO LAWRENCE TO WINDSORSince 1996, Justice Anthony Kennedy has authored three opinions that have formed the structure of his developing jurisprudence related to equal protection and due process. …