By Alexa Johnstone
Ever wondered how gay marriage become reality in America? We hope you enjoy reading our first published paper on LGBT policy. Stay tuned for the upcoming series on other historic and present day policy LGBT issues which have shaped and continue to shape the opportunities and rights of LGBT people across the Northern hemisphere.
At the very core of the United States’ is the ethos of the American Dream: a national promise of democracy, rights, liberty, opportunity, and equality for everyone, regardless of circumstances of birth. Yet, to the Lesbian, Gay, Bisexual and Queer (LGBQ) community, the American Dream is merely folklore. While the Declaration of Independence rules “all men are created equal”, LGBQ citizens across America were depraved of much of their equality until June 26th 2015. On this day, the U.S. Supreme Court ruled, with Obergefell v. Hodges, that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. As a morality policy that provokes a fierce, national debate over the “right way” of living and “battles between right and wrong”, the litigation of same-sex marriage was nothing short of arduous.[i] Given this national controversy, how did same-sex marriage come to be adopted as public policy in the United States? First, same-sex marriage had to be defined as a problem “pressing on the system” and paired with a solution that warranted governmental action.[ii] This paper will use Kingdon’s “multiple streams” framework to explain how same-sex marriage migrated on public policy agendas in the United States and Baumgarter and Jones’ punctured-equilibrium theory (PET) to explain policy change. In accordance with both theories, the policy process of same-sex marriage is characterized by periods of stasis, which are then punctured by the emergence of crises. Policy experts define the following as such: a medical crisis; the 1980s-90s AIDS epidemic, and landmark cases such as Baehr v. Lewin, Baker v. Vermont, and Goodrich v. Department of Public Health.[iii] After these focused events, the equilibrium of policy change was punctured, and a rapid change in national and court attitude towards same-sex marriage was possible.[iv] The first major change being the U.S. Supreme Court decision of Windsor which struck down Section 3 of the Defense of Marriage Act (DOMA), which then opened a policy window that would lead to Obergefell two years later.
Before the litigation of same-sex marriage was feasible in the United States, it had to become adopted as public policy first. While the entirety of U.S. policy-making should not be explained by one simple theory, John Kingdon’s “multiple-streams” framework is particularly useful at explaining how same-sex marriage migrated on public policy agendas in America. The “multiple-streams” framework theorizes (1). How issues get on public policy agendas: a list of problems to which governmental officials are paying serious attention to, (2). The agenda-setting process: the narrowed down list of what receives immediate and focused attention, and (3). how and when a policy window opens: a time with great potential for action.[v] In short, Kingdon posits that an issue is able to migrate on agendas when a “problem is recognized, a solution is available and the political climate makes the time right for change”; or rather once all three independent and interdependent streams (problem stream, policy stream, and political stream) intersect.[vi]
As the name suggests, the problem stream is characterized by public problems that require governmental action to solve and often receive heightened attention due to the emergence or framing of crises or focused events by policy entrepreneurs.[vii] The policy stream is characterized by expert’s opinions on these problems and the feasibility of policy action or inaction. The political stream, which was most insensitive during the policy process of same-sex marriage, constitutes factors that influence the body politic, such as swings in national mood, executive or legislative turnover, and interest group advocacy campaigns.[viii]
Policy experts often define the problem stream, in the context of adopting same-sex marriage as public policy, as the emergence of two preliminary and independent crises that each worked to “signal the emergence” of “problems pressing on the system”: (1). The HIV/AIDS epidemic of the 1980s-90s, and (2). Baehr v. Lewin in 1993.[ix]
The HIV/AIDS crisis is often defined as the first, but most complex focused event, as while it characterized the lack of marriage benefits to same-sex partnerships as a problem,
it also served as a double-edged sword in the adoption of same-sex marriage as policy in the United States. While the rise of gay visibility in the mass media persuaded many Americans to view homosexuals as victims of a medical emergency and systemic discrimination who required help, the HIV/AIDS crisis also affirmed notions of homosexuals as villains who lived deviant and immoral lifestyles.[x] Yet, at its best, the HIV/AIDS crisis brought awareness to the importance of marriage as an institution for couples to reap legal, medical and financial benefits— which gay couples could not receive.[xi] Men in same-sex relationships who were suffering with AIDS experienced inadequate health care, inflated medical bills, lack of federal benefits and other rights due to the lack of legal recognition of gay relationships.[xii] Despite the definition of a problem and a policy solution that required governmental action—the legal recognition of same-sex relationships—, the national attitude towards same-sex relationships remained negative and thus the policy window remained closed. On one hand, the HIV/AIDS epidemic was an obstacle, as it influenced the up-rise of anti-gay state laws such as Bowers v. Hardwick (1986)—the validation of state sodomy laws in an attempt to contain the spread of AIDS.[xiii] Yet, on the other, the HIV/AIDS epidemic helped reframe the problem not primarily as a question of same-sex marriage, but as a problem of discrimination which had a greater chance at getting on policy agendas.
After the backlash of the HIV/AIDS epidemic settled down in America, the process of adopting same-sex marriage as policy underwent a period of equilibrium. While policy change in the US is often characterized by stasis and incrementalism, Baumgartner and Jones coined the punctured equilibrium theory (PET) based on their findings of 1990s US policy-making trends, which posits that the emergence of focusing events puncture the policy equilibrium, leading to drastic change in policy.[xiv] In the case of same-sex marriage litigation, the focused event that punctured the policy equilibrium was Baehr v. Lewin in 1993.
While Baehr was not successful at legalizing same-sex marriage in Hawaii, the case was vital to shaping the litigation process for two reasons: 1. It demonstrated the importance of policy-framing, and 2. The decision tested public opinion on same-sex marriage. For example, Baehr was not framed as a problem of discrimination on the basis of sexuality, but rather on the basis of gender—which was likely to be better received by the Hawaii Supreme Court.[xv] As a result of policy-framing, the court ruled in Baehr that the government of Hawaii must demonstrate that denying marriage licenses to same-sex couples “furthers compelling state interests”.[xvi] Not only was this the first time that the question of same-sex marriage was discussed at the state Supreme Court level, but it was discussed seriously. As one of the first states to prohibit discrimination based on sexual orientation in employment, public accommodations and housing in 1991, a case like Baehr was most likely to succeed in Hawaii’s political climate.[xvii] However, as the test of public backlash would soon demonstrate, Hawaii’s political climate was not ripe enough for the permanence of Baehr. Like the HIV/AIDS crisis, Baehr served as a lesson to policy-entrepreneurs: permanent, drastic change in policy can only occur once all three streams, as theorized by the multiple-streams framework, are filled. While Baehr defined a problem, and found a policy solution, the political stream had many holes, and thus a policy window could not open. As the judiciary does not operate in a vacuum separate from the public it serves, the backlash of Baehr actually reversed the process of adopting same-sex marriage as policy.
Instead, the negative public attitude towards Baehr and the fear of legalizing same-sex marriage with tactics such as policy-framing, prompted President Bill Clinton to sign the Defense of Marriage Act (DOMA) in 1996. DOMA was not only passed to define marriage as a union between one man and one woman, but it was also passed as a tool to allow states to exclude same-sex couples from acquiring marriage licenses.[xviii]
However, DOMA would not interfere with pro-LGBQ policy entrepreneur’s mission to rule the denial of same-sex marriage licenses unconstitutional under state law. In 1999, Baker v. Vermont framed same-sex marriage as policy which only sought “legal protection and security for their avowed commitment to an intimate and long-lasting relationship” as a “recognition of common humanity”.[xix] Taking inspiration from the problem definition of the HIV/AIDS crisis, Baker v. Vermont framed the legal recognition of same-sex partnerships as a solution for granting the benefits of marriage to same-sex couples without legalizing same-sex marriage. Although the policy solution of marriage benefits could not be solved with same-sex marriage in lieu of DOMA, the Supreme Court of Vermont was able to separate marriage benefits from the institution of marriage.[xx] As a result, the court concluded that the denial of marriage benefits to same-sex couples was a violation of Vermont’s constitution. While same-sex marriage had not yet been successfully litigated in the United States, Baker v. Vermont mobilized the idea of same-sex marriage and the nation’s attitude towards it—setting the stage for a drastic change in policy, or as PET would call a policy punctuation, at the turn of the century.
While the 20th century was predominantly, as PET would suggest, incremental in terms of same-sex marriage policy change, the turn of the century would signal the emergence of landmark legal cases that would puncture the policy equilibrium. In June of 2003, Lawrence v. Texas ruled anti-sodomy laws of Bowers v. Hardwick (1986) unconstitutional.[xxi] The overturning of Bowers signaled a positive shift in national attitude towards the gay community, who deserved at the very least, a “right to privacy”.[xxii] A few months later, Massachusetts became the first state to legalize same-sex marriage with Goodridge v. Department of Public Health.[xxiii] Like Hawaii and Vermont, Massachusetts was a fertile environment for gay marriage litigation, so how did the failure of Baehr lead to the success of Goodridge ten years later? As Rosenberg would answer: “a successful movement that could persuade fellow citizens to support their cause and pressure political leaders to change the law”, or rather the political stream began to fill.[xxiv] In fact, Goodridge was the first decision that converged all three streams and migrated same-sex marriage onto the judicial agenda. While Goodridgereceived initial backlash, same-sex marriage was not only able to endure in Massachusetts, but it was cited as precedent for state cases in Iowa, Vermont, New Hampshire and the District of Columbia which were all able to license and recognize same-sex marriages in 2009.[xxv]
Despite the proliferation of states declaring bans on same-sex marriage unconstitutional after Goodridge, the United States federal government had yet to enact policy change—until the Windsor decision. In 2013, the Supreme Court held that Section 3 of DOMA—which defined marriage as a union between one man and one woman—was a violation of the Due Process Clause of the Fifth Amendment.[xxvi] However, the repeal of Section 3 of DOMA was only intended to grant same-sex couples the federal benefits of marriage (social security benefits, immigration policy, taxes, retirement, FMLA, and military benefits) in marriage equality states, which did not require non-marriage equality states to recognize same-sex partnerships under Section 2 of DOMA. [xxvii] In fact, because Section 2 of DOMA was not struck down, a conflict between state and federal law emerged, as it created “two contradictory [marriage] regimes within the same State, [as] DOMA force[d] same-sex couples to live as married for the purpose of state law, but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect”.[xxviii] With a shift in both the federal and national attitude towards the litigation of same-sex marriage, twenty states interpreted the repeal of Section 3 of DOMA as requiring the legalization of same-sex marriage, and twenty-six states struck down legislation which banned same-sex marriage, citing Windsor as precedent: Rhode Island, New Mexico, New Jersey, Minnesota, Maryland, Hawaii, Delaware, California, Alaska, Arizona, Colorado, Florida, Idaho, Maine, Montana, Nevada, Oklahoma, Oregon, Pennsylvania, South Carolina, Utah, Virginia, Washington, West Virginia, Wisconsin and Wyoming.[xxix] Above all, the repeal of Section 3 of DOMA created a policy punctuation that not only instigated the proliferation of marriage equality in several states, but also opened a policy window that would consider legalizing same-sex marriage under federal law. Two short years after Windsor, on June 26 2015, the Supreme Court of the United States ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.[xxx]
As can be seen, the process of adopting same-sex marriage as public policy in the United States was not easy, nor linear. Rather, as PET explains, the litigation of same-sex marriage was static and incremental, until the framing of preliminary focused events such as the HIV/AIDS crisis and Baehr were able to punctuate the policy equilibrium. The emergence of these events not only defined a problem pressing on the system, —the lack of state and federal recognition of same-sex partnerships—, but also initiated the agenda-setting process. Once a problem was characterized and a policy was framed, policy experts could propose a solution that required governmental action: the repeal of laws that discriminated on the basis of gender and laws that barred same-sex couples from the benefits of marriage. However, despite the fulfilment of the problem and policy streams with these two events, the political climate was not right for change—which resulted in the immense backlash as seen in Bowers and the repeal of Baehr. As theorized by the multiple-streams framework, policy shift would only be successful once a shift in national sentiment towards the LGBQ community was established. Once the political stream began to fill, a policy opportunity opened in the state of Massachusetts, leading to the adoption of same-sex marriage as policy for the first time in the US. Not only was Goodridge a focused event that influenced drastic policy change in other states, it also served affirmed the growing sensitivity towards gay rights in American demographics. By the early 2010s, same-sex marriage was legal in various states, and the agenda was well set in many others, which left one major step: adopting same-sex marriage as policy on the U.S. Supreme Court level. The first federal change being the decision of Windsor (2013) which struck down Section 3 of DOMA, and opened a policy window that would lead to Obergefell two years later.
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