Litigating for Same-Sex Marriages Is Wrong Strategy, Says John D’ Emilio

Note: The 124th Annual Meeting of the AHA has concluded, but discussions of the topics and events at the meeting continue. Read on for more in this blog post, and also see our roundup of what others are saying about the Annual Meeting.

Speaking on Saturday morning, January 9, 2010, to a large gathering at the breakfast meeting of the Committee on Women Historians, John D’Emilio (Univ. of Illinois at Chicago) declared that waging battles in courts to secure the right to have same-sex marriages is an entirely incorrect strategy for the gay and lesbian community.

Although he was an activist himself, he has been troubled for a long time, D’Emilio said, by the attempts to secure same-sex marriage rights in the courts. Tracing the history of seemingly successful legal cases, D’Emilio said that that the narratives of success conveyed only a part of the story, as the reaction to these court victories had, in fact, evoked widespread and deleterious consequences, in the form of amendments to state constitutions or other legislative measures that emphatically restated that marriage could only be between a man and a woman.

Pointing out that the institution of marriage was already undergoing radical transformations (single parents, simplified divorces, and so forth) despite the concerted efforts of the religious right, what was needed, perhaps, D’Emilio said, were campaigns that built alliances with groups that were advocating and advancing more liberal interpretations of marriage and thus move with the streams of history.

D’Emilio went on to say that there was a moral problem as well–that any benefits that may be secured by reaching the goal of the right for same-sex marriage would accrue disproportionately to a tiny social segment. Some people wrongly thought, D’Emilio said, that securing equal rights in marriage was a noble and ultimate aim, when there were other more important social goals to pursue and achieve (such as universal health care), and which, in fact, might actually render striving for same-sex marriage rights unnecessary altogether.

Concluding in a lighter vein, D’Emilio who was arguing against litigation for same-sex marriages, declared he was all for weddings, for weddings celebrated love, love that not only joined the couple but their worlds.

During the lively discussion that followed D’Emilio’s presentation, one member of the audience contended that the argument that D’Emilio advanced (that courts cannot legislate social change) was clearly negated by both Roe v. Wade and Brown v. Board of Education. In response, D’Emilio declared that those two Supreme Court decisions were really the culminations of a series of legal precedents set over many years and were reflections of evolving social  and cultural attitudes, whereas the lower court decisions on same-sex marriage were more ad hoc and specific to particular cases.

D’Emilio agreed, however, with another argument advanced from the floor, that all the court cases and the consequent controversies may have contributed to an increasing awareness about the issues involved, and even helped to create a more tolerant atmosphere among younger people.

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  1. James Fenter

    “Some people wrongly thought, D’Emilio said, that securing equal rights in marriage was a noble and ultimate aim, when there were other more important social goals to pursue and achieve…”

    More important to who? D’Emilio does not seem to recognize that he is not the arbiter of what is important to other people. Equal marriage rights may seem unimportant to him, but to someone else it may be very important. This is how activism works – people agitate for what is important to them. For D’emilio, he doesn’t feel the urgency of Equal Marriage Rights and wants to work on Universal Healthcare – fine. I’ll continue to be active in areas that I feel have priority and will thank him not to preach to me what my priorities should be.

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