Gay Lib Goes to Court: The Marriage of Liberation and Rights

Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN.

Michael Boucai’s wonderfully observant history of early marriage equality struggles, Glorious Precedents: When Gay Marriage was Radical, paints a beautiful portrait of early 1970s gay life and of the gay couples who sued for the right to marry in Baker v. Nelson, Jones v. Hallahan, and Singer v. Hara.1 It enriches our understanding of the marriage equality movement in two ways—one retrospective and one prospective. Painstakingly combing through these first marriage equality cases, the article recovers these earlier marriage rights claims that sought to redefine the institution’s cultural and legal underpinnings and make it an agent of gay liberation. The article also looks forward to consider what this history might mean at the present moment given the distinct rhetoric and stakes of the contemporary marriage equality movement.

Rigorous method drives all great historical work. It is particularly important in work involving recent history, in which popular memory persists in a way that both aids and clouds a historical focus. Other histories of social activism, such as Serena Mayeri’s work,2  prove that adept historians can produce clear work on relatively recent social movements. However, Boucai faced a unique challenge in gathering the necessary material after AIDS decimated many of those at the heart of this historical struggle and scattered their documents. Boucai’s heavy lifting involved extensive local research, from community newspapers and activist pamphlets to interviews. Through these sources, he unveils a colorful and gripping tale of the plaintiffs in his three cases and how their political, sexual, and affective lives linked with them. Having come out a decade after this litigation, I was overjoyed to discover this history, some of which I had heard, but which has been largely absent from contemporary debates over marriage.

As Boucai documents, the radicalism of this group of plaintiffs appears particularly foreign when viewed from a contemporary perspective. Unlike the rights perspective that guides many current debates, or even the queer perspective that arose in the 1990s to engage critical thought about rights,3  these early marriage cases, Boucai argues, reflect the gay liberation movement’s radical utopian foundations. As this movement began to seek rights, it drew on central political precepts such as the struggle against racism and, in particular, sexism. Gay liberationists drew on feminist efforts to rework societal sex roles, including an opposition to the patriarchal nuclear family. In this climate, coming out was viewed as a central political act, a gay variation of the feminist exhortation that “the personal is political.” Likewise, the embrace of sexuality was also central. During this period, when even married suburbanites hosted “swinging” key parties, gay men and lesbians also embraced a new eros, rushing to create what Michel Foucault called “laboratories of sexual experimentation.”4  Indeed, the name of the organization run by one of the early gay marriage plaintiffs, Jack Baker, Fight Repression of Erotic Expression (“FREE”), reflects the centrality of sexual liberation to the movement.

Within this historical context, Boucai locates the Baker, Jones, and Singer plaintiffs both as litigants and as movement participants. On this account, these cases were not simply bids to access marriage, but bold salvos against heteronormativity. As Boucai explains, these plaintiffs, perhaps guided by low expectations for success, were bold and innovative in crafting the legal arguments for marriage equality. Several arguments focused on the then-recent developments in sex-discrimination law to mine the radical potential for leveling all restrictions on sex including whom one can marry. This argument, when raised by Justice Roberts recently in Obergefell v. Hodges, still surfaces much controversy.5  Not surprisingly, courts dismissed the arguments—and these cases—out of hand. The creative arguments, brought by a variety of plaintiffs who explicitly embraced sexual liberation, provide a marked contrast with the deliberate and strategic methods of more recent marriage litigation.

Boucai also highlights intra-movement discord, specifically how the more conservative and closeted homosexuals opposed each of the cases. This radical-reformist divide in gay political efforts became apparent a decade later in Larry Kramer’s The Normal Heart.6  In response, the plaintiffs embraced the radical, not the reformist, stance. Given the small chances of success for the litigation, and the plaintiffs’ awareness that marriage was a target rather than a goal, the lawsuits functioned as vehicles for public protest. For example, the Baker plaintiff organized a “zap” protest action, with champagne and a wedding cake, to highlight the pending lawsuit and to come out in a highly visible and political fashion. The couples resisted social definitions of sex roles in their communication with the press, demanding a full-scale reappraisal of marriage and sexual relationships. Indeed, one of the couples had a relationship more akin to what we might call “friends with benefits,” and the suit did not seek to formalize their unorthodox relationship, but rather to render gay life and sexual liberty more visible. They sought to demonstrate that sexual exclusivity, monogamy, and even the sexual relationship itself were invidious elements of the marital relation – that anyone should be able to marry for any reason, including to flout the norms associated with the institution.

Even as he uncovers this lost history, Boucai does not linger on why it has been forgotten. The splits between gay and feminist movements, the retrenchment forced by AIDS, and the subsequent cultural visibility and the concomitant establishment of an increasingly legitimized minority all contributed to the loss of this history and the arguments that undergirded it. Rights-seeking activists, using less radical techniques, gradually took precedence within the gay rights movement (with ACT UP and Queer Nation as notable hybrid exceptions). I remember attending the planning council for the 1987 gay rights March on Washington at which Gay Men’s S/M Activists (GMSMA) held a seat on the planning committee. Such groups disappeared from national political efforts in the subsequent years. As the gay rights movement legitimized itself, organizers suppressed community elements that undermined mainstream acceptance.

Boucai’s methodological rigor, with its hint of nostalgia, renders the piece irresistibly alluring. His concerted and fascinating historical work reflects a broader curiosity about what gay liberation meant7  and marks many paths for future inquiry. Boucai’s renewed embrace of sexual liberation reminds us that the established LGBT-rights movement stands on top of a liberationist, anti-patriarchal agenda that would upend sex, gender, and sexual stereotypes. At a time when identitarianism continues to define lesbian and gay equality efforts, it is my hope that Boucai’s crucial intervention might revitalize moribund debates over the law’s direction with regard to sex and sexuality.

[Editor’s note: for a previous review see Elaine Craig, A Queer Story of Same Sex Marriage.]



  1. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), aff’d, 409 U.S. 810 (1972); Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973); Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974), appeal denied, 84 Wash.2d 1008 (1974). []
  2. Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Harvard University Press, 2011). []
  3. For my own contribution to this debate, see, Darren Rosenblum, Queer Intersectionality and the Failure of Recent Lesbian and Gay “Victories,4 Law & Sexuality 83 (1994). []
  4. Sexual Choice, Sexual Act: An Interview of Michel Foucault, Salamagundi Magazine, Fall 1982-Winter 1983, reprinted in Foucault Live: Interviews, 1961-1984 225 (Sylvère Lotringer ed. & John Johnston trans. 1989). []
  5. Obergefell v. Hodges, 135 S. Ct. 1039 (2015); Adam Liptak, Gender Bias Issue Could Tip Chief Justice Roberts Into Ruling for Gay Marriage, N.Y. Times, Apr. 29, 2015, []
  6. Larry Kramer, The Normal Heart (1985). []
  7. Consider, for instance, two recent films about gay life in the 1970s. James Franco’s recent video project explores the 1970s leather bar scene, and reminds us that gay sex, then still criminalized, figured as a more central form of resistance to the discrimination homosexuals faced than it does now. Interior. Leather Bar. (James Franco, Vince Jolivette, et al. 2013). While Interior. Leather Bar focuses on sexual liberation, a new film, Limited Partnership, concentrates on a 1970s rights claim for a gay married couple seeking a green card. Limited Partnership (Tesseract Films Corporation, Treehouse Moving Images, LLC, et al. 2015). Both films, the former about liberation, the latter about rights, find the perfect accompaniment in Boucai’s article which artfully grapples with both. []
Cite as: Darren Rosenblum, Gay Lib Goes to Court: The Marriage of Liberation and Rights, JOTWELL (June 24, 2015) (reviewing Michael Boucai, Glorious Precedents: When Gay Marriage was Radical, 27 Yale J.L. & Human. 101 (2015), available at SSRN), https://family.jotwell.com/gay-lib-goes-to-court-the-marriage-of-liberation-and-rights/.