Introduction

In 1999, the Vermont Supreme Court held that denying the rights and benefits of marriage to same-sex couples violated the Vermont Constitution,¹ and the legislature enacted civil unions the next year.²  Lesbian, gay, bisexual, and transgender (LGBT) rights advocates celebrated.  The American Civil Liberties Union (ACLU) lauded Vermont as the “first state to require complete equality for same-sex relationships.”³  Matt Coles, then director of the ACLU’s national Lesbian and Gay Rights Project, explained the decision’s significance: “The court says that in Vermont at least, lesbian and gay couples should get the same treat­ment the law gives to heterosexual couples.  Whether you call that same-sex mar­riage, domestic partnership or something else, it is full equality, and that is an historic first.”⁴  Responding to the civil union law, Kate Kendell, executive direc­tor of the National Center for Lesbian Rights (NCLR), declared, “This historic piece of legislation marks the first time a state has accorded to lesbian and gay couples the full equality and protection we deserve and have long been denied.  This . . . hopefully mark[s] the beginning of a national effort to secure equality in the rest of the country.”⁵  Advocates framed civil unions, which provided same-sex couples with the state-based rights and benefits of marriage, as a measure that delivered equality.

Fast forward to 2006.  The New Jersey Supreme Court followed the course set by Vermont’s high court,⁶ and the state legislature subsequently enacted legislation permitting civil unions.⁷  This time, LGBT rights advocates protested.  David Buckel, who litigated the New Jersey case for Lambda Legal, wrote that “for the government to use the label ‘civil union’ is a considered choice of language that assigns us a second-class status.”⁸  Resisting the implication that Lambda Legal might “oppose[] civil unions in all instances,” Buckel explained: “Whatever the calculus that defines the best strategy for an individual state, our role is not only to help get to success—big or little, now or later—but also to ensure that everyone knows it isn’t over until same-sex couples can choose freely from the same range of options as different-sex couples.”⁹  Advocates located the civil union law as a mere stop along the way to full equality.  Indeed, they framed the law as an equality violation in itself.

What changed?  How had civil unions shifted from a sign of equality to a marker of inequality?  In this Essay, I show how LGBT rights advocates’ deploy­ment of constitutional frames, and the articulation and resolution of those frames in court, played a significant role in this shift.  The constitutionalization of relationship recognition and the turn to courts facilitated—and ultimately required—the move from equality to inequality in framing civil unions and domestic part­nerships.¹⁰  Once advocates were able to show the shortcomings of civil unions and domestic partnerships—that those regimes failed to satisfy equality mandates issued by courts—they could shift the frame from equality to inequality.  By attending to these dynamics, we can see how the remedy for the Vermont Supreme Court’s equality mandate eventually became the injury of ine­qual­­­ity that other courts and legislatures have recognized.¹¹

To chart this transformation, this Essay focuses on four points along the path to marriage equality:

Constitutional commitments provided the language through which LGBT rights advocates framed civil unions, domestic partnerships, and marriage, both in and out of court.¹⁹  The very meaning of equality changed through social movement mobilization, movement–countermovement conflict, and state deci­sionmaking processes.²⁰  Courts played a significant role in this development, furnishing locations in which advocates could announce, hone, and resolve frames²¹ and attract attention to and publicity for those frames.²²  Advocates, in turn, would integrate courts’ assessments of those frames—in the form of ad­judicated results—into their discursive strategies.²³  Ultimately, the con­sti­tutional, court-based fight over the meaning of equality for same-sex couples both reflected and constituted the political and cultural dimensions of that fight.²⁴

I. Vermont—Civil Unions and Equality

In Vermont, in the late 1990s, LGBT rights lawyers argued that the Vermont Constitution’s Common Benefits Clause required that same-sex couples receive the same rights and benefits as married different-sex couples.²⁵  Advocates had turned to courts instead of attempting to secure relationship rec­ognition through the legislature.  At this early point in the LGBT movement’s organized campaign for marriage equality, courts provided the only state-level venues for plausibly making claims to marriage.²⁶  A few state legislatures grap­pled with limited relationship recognition in the 1990s, but marriage was generally not on the table.²⁷

The court in Baker v. State decided that the provision of equivalent rights and benefits to same-sex couples could remedy the constitutional violation in the case, in spite of the plaintiffs’ request that the state allow same-sex couples to marry.²⁸  The court stated: “While many have noted the symbolic or spiritual significance of the marital relation, it is plaintiffs’ claim to the secular benefits and protections of a singularly human relationship that, in our view, characterizes this case.”²⁹  This followed logically, though not inevitably, from the “common ben­efits” framing of the case by LGBT rights lawyers.  Even though the Vermont Common Benefits Clause resembles the federal Equal Protection Clause, its unique common benefits language was particularly favorable for framing same-sex couples’ claim and stressing their exclusion from a vast array of benefits granted to married different-sex couples.³⁰

The plaintiffs’ reliance on the common benefits framing suggested less attention to marriage’s social implications.  Their opening brief, for instance, focused heavily on the “broad panoply of legal, economic and social protections and supports for married couples and their families,”³¹ while devoting only a single sentence to the “social value of state-recognized civil marriage.”³²  Indeed, the plaintiffs disputed the state’s characterization of the case as “not ‘a benefits case’”: “[C]ivil marriage opens the door to hundreds of legal protections, sup­ports, and obligations, the vast majority of which are simply out of reach for Appellants because they cannot marry.”³³  Of course, the plaintiffs acknowledged Baker was “not just a benefits case,” because “[t]hrough civil marriage, the State confers a status, which plugs into a common social vocabulary and carries power­ful personal and cultural weight.”³⁴

The court, drawing on the common benefits framing advocates presented, focused on marriage’s material rights and benefits, rather than its cultural status:

In response, the state legislature enacted civil unions, the country’s first comprehensive relationship recognition law for same-sex couples.³⁶  In this fram­ing, equality was understood primarily as material equality rather than dignitary equality.

The Vermont Supreme Court credited the LGBT rights lawyers’ frame in a carefully circumscribed way by focusing on tangible rights and benefits over equal respect and status.  With the court’s ruling, advocates had a judicially endorsed frame on which to draw.  They had a choice: They could either appeal to Chief Justice Johnson’s concurring and dissenting opinion, which criticized the ma­jority for falling short of full marriage rights for same-sex couples,³⁷ or praise the majority opinion and frame the decision as a progressive call for equality.³⁸  For the most part, advocates chose the latter, adopting the majority’s equality frame and using it to drive the movement in other states and on the national level.³⁹  There was power in claiming victory, both to mobilize constituents and to con­vince elites to support the movement.  And embracing civil unions as a remedy could lead to similar victories in other states, including those that had statutes or constitutional amendments banning recognition of marriage for same-sex cou­ples.  For instance, soon after the Vermont legislature’s move, Representative Paul Koretz introduced a civil unions bill in California.⁴⁰  While advocates and lawmakers abandoned the bill when they determined that it would be easier to build on the state’s existing domestic partnership statute, the result in Vermont influenced the move toward a comprehensive domestic partnership regime in California.⁴¹

Although LGBT rights lawyers publicly adopted the civil union equality frame,⁴² they anticipated that they would later deploy the inequality frame and be­gan to collect evidence of discrimination against same-sex couples in civil unions.⁴³  As the concept of marriage equality gained traction, movement ad­vocates would begin to paint civil unions as an inadequate remedy.  But with relatively low levels of public support for marriage equality, they embraced civil unions as a temporary solution.⁴⁴  In other words, advocates did not adopt the Vermont court’s frame in an unthinking, wholesale fashion.

II. Massachusetts—Marriage Equality

A key lawyer in the Vermont litigation, Mary Bonauto of Gay & Lesbian Advocates & Defenders (GLAD), subsequently pursued marriage equality in Massachusetts.  In its 2003 decision in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court held that the state constitution re­quired that same-sex couples receive the same treatment as different-sex couples with regard to marriage.⁴⁵  Massachusetts lawmakers asked the court if the state could remedy the constitutional violation by enacting civil unions, as Vermont did.⁴⁶  This offered an opportunity for Bonauto and her colleagues to frame the Vermont experience as one that produced inequality and continued discrim­ination.⁴⁷  Distinguishing Baker’s focus on “equal access to state-conferred marital rights and responsibilities,”⁴⁸ Bonauto emphasized Goodridge’s attention to the “unique status” of marriage, which “legally and socially confirms and strengthens the private commitment of the couple.”⁴⁹  While the abstract idea of relationship equality in Vermont was commendable, Bonauto claimed that because of the so­cial and cultural significance of marriage and the unfamiliar status of civil unions, a nonmarital designation could not provide equal treatment in practice.  Private parties, for instance, would continue to discriminate against same-sex couples.⁵⁰  Because the Vermont resolution did not deliver the constitutional equality it guar­anteed, advocates in Massachusetts painted it as an inadequate remedy.

In response to the state lawmakers’ question asking whether civil unions would suffice, the Massachusetts Supreme Judicial Court answered with a re­sounding no, explaining that only full marriage equality would remedy the con­stitutional violation.⁵¹  The decision signaled that civil unions were becoming a sign of inequality.⁵²  The court itself functioned as a framing agent, validating the marriage equality and civil union inequality frames and reshaping those frames going forward.⁵³

Yet the court’s favorable ruling did not authoritatively end the debate.  Rather, the court provided resources for LGBT activists to continue to push their constitutional vision in Massachusetts and beyond.⁵⁴  The judicial decisions in Massachusetts changed the terms of the political debate in that state.⁵⁵  Ad­vocates could now portray legislators opposed to marriage equality as attempting to eliminate recognized constitutional rights.⁵⁶  On the other side, sympathetic lawmakers could now rely on state supreme court decisions to articulate their support and, as a practical political matter, couch their position.⁵⁷  The court’s intervention in Goodridge contributed to the framing of the marriage equality issue, rendering nonmarital recognition a second-class alternative and justifying the political ratification of marriage equality.

III. New Jersey—Civil Unions and Inequality

In 2002, LGBT rights advocates led by Lambda Legal challenged same-sex couples’ exclusion from marriage in New Jersey.⁵⁸  At the New Jersey Supreme Court, the lawyers portrayed civil unions and domestic partnerships as unac­ceptable alternatives.⁵⁹  Yet in its 2006 decision in Lewis v. Harris, the ma­jority ruled that civil unions could remedy the constitutional violation; for its part, the dissent argued that only full inclusion in marriage would suffice.⁶⁰  In response to the court’s decision, the legislature passed a civil union law.⁶¹  Ad­vocates recog­nized the material benefits produced by the court’s decision and the subsequent codification of civil unions, but nonetheless attacked the result, ar­guing that the court and the legislature failed to provide full equality.

In the years following Lewis, advocates aggressively pursued the inequality framing of civil unions.  Lambda Legal lawyers challenged the United Parcel Service’s refusal to recognize civil unions for employee benefits purposes.⁶²  And they documented discrimination experienced by same-sex couples in civil unions,⁶³ publicizing numerous instances of third-party discrimination.⁶⁴  These examples bolstered the inequality frame now used for civil unions and discredited the equality frame that previously characterized nonmarital recognition.  The efforts to document discrimination against those in civil unions, which merged con­siderations of symbolic or cultural equality with considerations of tangible or material equality, showed that the status-based harm inherent in a separate nonmarital designation produced material harms for same-sex couples and their families.  The New Jersey Supreme Court’s decision did not authoritatively settle the debate in that state.  Advocates continue to push for marriage legislatively,⁶⁵ and Lambda Legal returned to the New Jersey courts in 2011, arguing that civil unions violate both state and federal equal protection guarantees.⁶⁶

IV. California—Litigating Inequality

LGBT rights advocates eventually asserted more aggressive legal claims against civil unions and domestic partnerships.  Lawyers argued that regimes once perceived as remedying constitutional violations actually constituted violations themselves.  In a key decision, the California Supreme Court credited this inequality frame, ruling that the domestic partnership regime failed to satisfy the demands of the state equal protection guarantee and ordering the state to open marriage to same-sex couples.⁶⁷

The inequality frame had gained resonance during the state’s move toward a comprehensive domestic partnership law, which took effect in 2005.  Although this Essay has thus far focused on advocates’ strategies and the relationship those strategies have to court decisions, the strategies of opponents of relationship recognition in California also contributed to the shift toward inequality frames.  Movement–countermovement dynamics influence frames as each movement responds to and internalizes frames advanced by the other.⁶⁸  At the same time that LGBT rights advocates were pushing relationship recognition, including both marital and nonmarital regimes, Christian Right activists pressed for stat­utes and constitutional amendments banning marriage for same-sex couples and, in some instances, nonmarital recognition.  These activists also challenged nonmarital regimes as violative of state laws prohibiting recognition of marriage for same-sex couples.  In California, LGBT rights advocates defended the state’s comprehensive domestic partnership law against a challenge that the law contra­vened Proposition 22, the voter initiative prohibiting marriage for same-sex couples.  Initiative proponents argued that the domestic partnership regime was so similar to marriage that it violated the spirit of the statute, while LGBT rights lawyers underscored the differences between the two relationship statuses.⁶⁹  In this sense, the countermovement’s turn to courts necessitated arguments by LGBT rights lawyers denigrating nonmarital relationship recognition and dis­tancing it from marriage.  The countermovement strategy, therefore, actually aided the LGBT rights movement’s shift from equality to inequality frames around civil unions and domestic partnerships.  In determining that the com­prehensive domestic partnership regime did not violate Proposition 22, the California Court of Appeals deemed domestic partnership a distinct and inferior status.⁷⁰  In this way, the landmark victory in the California legislature—the pas­sage of a comprehensive domestic partnership law—was reframed in court as a mark of inequality.

Three years after the state court resolution of the domestic partnership dis­pute and mere months after the California Supreme Court announced same-sex couples’ right to marry under the state constitution, Proposition 8 amended the California Constitution’s Equal Protection Clause to exclude same-sex couples from marriage (yet leave untouched the comprehensive domestic partnership re­gime).  Same-sex couples filed suit in federal court in a case led by a new organ­ization, the American Foundation for Equal Rights (AFER).⁷¹  Indeed, the main LGBT movement organizations had warned against such litigation.⁷²  In Perry v. Schwarzenegger, AFER’s lawyers, most notably Ted Olson and David Boies, ar­gued that the state constitutional amendment violated federal equal protection guar­antees and deprived lesbians and gay men of their fundamental right to marry.⁷³

Judge Vaughn Walker held a trial in which the parties explored and scru­tinized the distinction between comprehensive domestic partnership and mar­riage.  The lawyers, the same-sex couple plaintiffs, and the expert witnesses pointed to both the material and the dignitary harm that domestic partnerships inflict and framed the domestic partnership regime as unequal as a constitutional matter.⁷⁴  Embracing marriage as a constitutional requirement in effect meant denigrating civil unions and domestic partnerships.  The lawyers put on experts who connect­ed the constitutional frames of equality and inequality to empirical arguments about harm.⁷⁵  Crucially, these experts carefully reframed domestic partnership as harmful by distinguishing the earlier, more equality-driven frames.

Social epidemiologist Dr. Ilan Meyer testified that the exclusion of same-sex couples from marriage and the designation of same-sex relationships as separate domestic partnerships produced emotional and psychological harm that leads to what he termed “minority stress.”⁷⁶  In discussing the difference between marriage and domestic partnership—as opposed to the difference between mar­riage and no relationship recognition—Meyer explained that “you’re actually making a clearer statement of stigmatization when you have this dual system, because it is not only that you’re denying them the marriage, you’re also saying this marriage is highly valued and, therefore, you cannot get that part so we’re giving you something that we’re calling something else.”⁷⁷

Under cross-examination, Meyer negotiated the relationship between the equality and inequality frames of domestic partnership:

The examining attorney then showed Meyer California’s comprehensive domestic partnership law:

At the Perry trial, the expert witnesses put forward public policy arguments, grounded in empirical research, as to why and how domestic partnership harmed same-sex couples.⁸⁰  Ultimately, the trial allowed supporters of marriage for same-sex couples to construct the meanings of equality and inequality in specific and empirical terms.  Doing so, however, required delicately balancing the push for marriage in California with the movement’s earlier endorsement of a domestic partnership regime in that state and the continued selective endorsement of do­mestic partnership laws in other states.

By crediting the LGBT rights movement’s frames and discrediting the coun­t­er­movement’s frames, the district court itself shaped the conversation around marriage for same-sex couples.  Judge Walker endorsed the marriage equality frame and the domestic partnership inequality frame by relying on an array of expert and plaintiff testimony.⁸¹  He then linked that testimony to constitutional principles of liberty and equality.⁸²  The court’s reasoning provided a resource for movement activists moving forward and became part of the public and legislative debate over same-sex relationship recognition.

A divided Ninth Circuit panel affirmed the district court’s holding but did so on narrow grounds that relied heavily on the distinction between marital and nonmarital relationship recognition for same-sex couples.⁸³  Lawyers at LGBT legal organizations, lawyers for the City and County of San Francisco, and prom­inent constitutional law scholars led by William Eskridge forcefully argued that the unique situation in California—in which same-sex couples have a domestic partnership system and had the right to marry eliminated by voters—could not withstand even rational basis review.⁸⁴  Following that logic, the Ninth Circuit panel made the domestic partnership regime central to its holding and found that “the difference between the designation of ‘marriage’ and the designation of ‘domestic partnership’ is meaningful.”⁸⁵  Instead of signifying equality for same-sex couples, the domestic partnership law signified the denial of the designation of marriage, which the court understood as “the principal manner in which the State attaches respect and dignity to the highest form of a committed rela­tionship.”⁸⁶  After Perry, the transformation from equality to inequality for nonmar­­ital relationship recognition, through both advocates’ frames and courts’ acceptance of those frames, seems nearly complete.

Conclusion

Now, more than ten years after Vermont resorted to nonmarital rela­tionship recognition to provide constitutional equality to same-sex couples, LGBT rights advocates frame civil unions and domestic partnerships, both legally and polit­ically, as unequal.  And they frame marriage as the only true mark of equality.  Advocates pursue these frames in courts and legislatures throughout the country,⁸⁷ drawing explicitly on constitutional frames.

The U.S. Supreme Court is poised to weigh in on marriage equality, spe­cifically against the backdrop of a comprehensive domestic partnership law.  It grant­ed certiorari in Perry and may rule on whether California’s domestic part­nership regime meets the demands of the Equal Protection Clause of the Fourteenth Amendment or instead directly contravenes that equality mandate.⁸⁸  If the Supreme Court rules on the question of whether comprehensive nonmarital rela­tionship recognition violates the constitutional guarantee of equality, it will have done so after many judicial decisions and years of political and cultural debate shaped by the shrewd framing efforts of LGBT rights advocates.