Jenner & Block

Paul Smith Chronicles the History of the Fight for Same-Sex Marriage in NBC Broadcast

Jenner & Block Partner Paul M. Smith discusses the history of the fight for same-sex marriage in the United States in an NBC News “Long Story Short” episode.  Mr. Smith, chair of the firm’s Appellate and Supreme Court Practice, offers his insight as thelawyerwho in 2003 successfully argued one of the landmark gay-rights cases of the generation, Lawrence v. Texas.    As Mr. Smith explains in the video, the legal fight leading up to today’s ruling in favor of gay marriage actually began decades ago. In 1986, the Court ruled in Bowers v. Hardwick that there was no constitutional protection for homosexual sex.  Viewed by supporters of gay rights as “one or two of the most awful decisions of the Supreme Court,” Bowers v. Hardwick was essentially overruled 17 years later in Lawrence.  In Lawrence, two men in Texas were charged with violating the Texas “homosexual conduct” law.  Mr. Smith and lawyers for the defense argued, first, that the right to choose sexual activity should be up to the individual and, second, that “it’s just plain discriminatory because the same conduct was illegal for a gay couple but not for a straight couple.” The Court ruled there is a “core area of liberty” that an individual has, and that includes sexuality.  After Lawrence came the state-by-state battles to legalize same-sex marriage. While there were victories, starting with Massachusetts in 2004, the federal Defense of Marriage Act (DOMA) still held that gay couples were not married in the eyes of the federal government.  In 2013, in United States v. Windsor, the Court reversed the critical provision of DOMA that defined marriage as between a man and a woman.  At that point, “people started going to federal court all over the country and claiming the right to marriage equality, saying ‘My state won’t marry me,’ or ‘My state won’t recognize my marriage from another state, and that’s unconstitutional,’ and the federal judges, they understood the message, too, so we won something like 20 cases in a row in federal court,” Mr. Smith says.  Today’s ruling confirmed that the 14th Amendment protects all marriages.