History Teaches . . . Marriage/Equality
10 Years Since the Once-Final Victory for LGBT Rights in Obergefell v. Hodges
On Monday, June 23, a 79-year—old psychotherapist and Episcopal deacon from Shelburne, VT, died of an apparent heart attack. His name was Stannard (Stan) Baker. He and his longtime partner, later husband, Peter Harrigan, were among the six plaintiffs who brought the landmark relationship equality case Baker v. State to the Vermont Supreme Court in 1999.
The Vermont case ended in the state granting what were called (in a neologism arrived at by the state legislature) “civil unions” to all couples, whatever their sexual or gender identities. This may sound like a small thing, separate from the demand for “gay marriage,” but in fact it was the critical victory that paved the way for marriage in other state, and then ultimately federal, courts. This was because the state supreme court, in Baker, found a right under the state constitution’s “common benefits” clause — roughly comparable to the equal protection clause of the U.S. Constitution, and recently, before Baker, the source of a state supreme court ruling for educational equalization, i.e., the end to a local-tax-based system of funding k-12 schools in case of a statewide fund that would distribute school funds on an equitable basis — to all the benefits of marriage that the state provided, regardless of one’s sexuality.
Image: Two older-looking white men in matching white buttoned-down shirts and black ties, with long white jackets (suggestive of wedding attire), smiling and clapping against a background of green parkland. Stan Baker and Peter Harrigan, leaders in the fight for relationship equality. Courtesy Seven Days newspaper: https://www.sevendaysvt.com/arts-culture/stan-baker-plaintiff-in-civil-unions-case-dies-at-79-43842850
The ruling in Baker led to a state legislative session in 2000 that was consumed with the question of how to comply. As former legislator (and recent Lieutenant Governor) David Zuckerman explained on Facebook: On a daily basis, the Statehouse was consumed with the discussion. People from across the country came (mostly opposed) including some very venomous individuals towards our gay, lesbian and non-binary (not a widely used term back then) friends and neighbors. There were death threats to our Governor (Howard Dean), some legislators and some, if not all, of the plaintiffs. A State Senator’s car was bought at auction and then put on public display and smashed with sledgehammers. . . . Through it all Stan Baker and the other 5 plaintiffs were amazing leaders keeping their composure (in public anyway) under intense scrutiny and vitriol.”
Zuckerman reports that he and 21 other legislators made the case in 2000 for full marriage equality, using the term and not just providing the same benefits, as in civil unions. But civil unions were the compromise at which the legislature arrived, and that Governor Dean signed into law. And unlike in Hawaii, which had had a similar initiative toward providing relationship rights to same-sex couples provoked by a state constitutional interpretation, the court ruling and legislative action survived the political storms that followed, which included attacks especially on Republican legislators who had voted for civil unions, several of whom lost their seats, and a hard turn to the right for the state Republican Party. (In Hawaii, the state supreme court ruled in favored of relationship equality in 1993, the legislature equivocated, and ultimately outside political forces funded a statewide referendum that undid the judicial ruling by amending the state constitution. On this, see journalist Sasha Issenberg’s book, The Engagement, and on the whole legal movement toward family rights for same-sex couples and their children, see legal historian Marie-Amélie George’s excellent Family Matters. And on the Vermont story, see the work of Pulitzer-Prize-winning Vermont journalist David Moats, Civil Wars.)
Baker v. Vermont was the break in the chain, the ruling for same-sex relationship rights that earned the backing of a majoritarian legislature (thanks to people like David Zuckerman) so that people couldn’t claim it was just the result of judicial fiat, and that weathered the initial storms and quickly was assimilated as pretty-normal and uncontroversial by most people in the state. The revenues came in from a gay-couple wedding industry that helped fill hotel rooms in the summer. And less than a decade later, shortly before my partner (now spouse) and I moved to the state from North Carolina, the legislature took the additional step of granting the name, “marriage,” and 100% equality, to same-sex couples seeking to legalize their relationships in that way — and did so, in another “first,” by a democratically elected legislative majority, over the veto of a Republican Governor.
Stan Baker’s passing came just a week before the 25th anniversary of the effective date of the Vermont civil unions legislation (July 1, 2000) and 3 days before the 10th anniversary of the landmark U.S. Supreme Court opinion in Obergefell v. Hodges. Obergefell held, on a 5-4 vote of the Court, that the statutes (legislation) of individual states that purported to reserve the privilege of marriage for heterosexual couples were unconstitutional. The laws, which were briefly nearly as popular as anti-trans laws are today, were said to violate the fundamental constitutional right to marry; same-sex couples must be able to exercise that fundamental right as other couples could.
Image: The White House lit in rainbow colors on June 26, 2015, in honor of the Obergefell v. Hodges ruling from the U.S. Supreme Court. The Obamas were inside. Mark Wilson, Getty Images, courtesy of USA Today, https://www.usatoday.com/story/news/nation/2025/06/24/obergefell-hodges-photo-page-same-sex-marriage/84284666007/
The justification articulated by Justice Kennedy (the conservative who became the Court’s main voice on gay constitutional rights) relied on both the “due process” clause of the Fourteenth Amendment, which says citizens shall not be deprived of “life, liberty, or property without due process of law” — and “liberty,” in particular, had long been understood as implying liberty in the realm of intimate life, as in Roe v. Wade (RIP), and its “equal protection” clause. This clause promises citizens “equal protection of the laws,” meaning, traditionally, that two persons who are substantially alike one another except for some distinguishing characteristic that has to do with a history of discrimination or subordination, must be treated alike in the law.
Who dissented in Obergefell? Justices Alito, Thomas, and Roberts, all still on the Court and now in its extremely conservative majority, with the late conservative hero Justice Antonin Scalia. You may remember that Justice Scalia died in office in 2016. President Obama would have loved to appoint his replacement, but, thanks to Mitch McConnell’s Senate leadership, Donald Trump got to do so instead in 2017 — nearly a year after the Justice’s passing — with Justice Neil Gorsuch. Gorsuch is a very conservative jurist. However, he authored the Bostock opinion from 2020, which said that the employment discrimination forbidden by Title VII of the Civil Rights Act includes gay and trans people under the category of “sex” (as in, sex discrimination in employment is forbidden, so discrimination against gay and trans people for being gay and trans is likewise forbidden). So it is possible that he would endorse marriage equality from the bench but, given his silence about broader questions of gay (and transgender) rights raised by his Bostock opinion, this is not at all clear.
President Trump also had the chance to name a successor for Justice Ruth Bader Ginsburg, who died in office on his watch (no doubt having hoped dearly, vainly, to give the country’s first woman President that opportunity). That was Justice Amy Coney Barrett, sometimes an interesting jurist but extremely conservative on matters of sex, gender, sexuality, and gender identity — as evidence by her concurring opinion in the recent Skrmetti case, which argued that transgender people have not faced a history of formal discrimination (not even today??!!??) and do not count as one of those favored categories under the equal protection clause of the Fourteenth Amendment.
Q.E.D., if nobody changes their perspectives, there are today 3 old votes against marriage equality +Justice Barrett +Justice Brett Kavanaugh? +Justice Neil Gorsuch?.
Because of its precariousness, and also because it’s important to know how social and legal change really happens, on this 10th anniversary of nationwide marriage rights for same-sex couples we must remember the work of people like Stan Baker, the legislators who took risks to turn the Baker ruling into policy, and the many other people and struggles across the country that led to the Supreme Court’s ruling in Obergefell.
My own research is about an activist push for relationship recognition that is today even less well known than Stan Baker’s. It involves the case of a lesbian couple, Sharon Kowalski and Karen Thompson, who fought in the state courts in Minnesota from 1983-1991 and inspired a national movement demanding legal recognition of their union at a time when demanding marriage seemed far out of reach.
After a car accident that left Kowalski with serious cognitive and physical injuries, her partner, Thompson, fought in court and in the media to be appointed her guardian, a status that would allow her to make medical and financial decisions on Kowalski’s behalf. Thompson insisted on the legitimacy of the commitment she and Kowalski had made to one another in their seven-year-long relationship.[i] She demanded that the courts credit her care for her lover and her expertise, as a professor of physical therapy who could help Kowalski restore her capacities after the accident, in their choice of an appropriate guardian. Although Sharon Kowalski’s ability to vocalize was limited, post-accident, she expressed her desire to be with Thompson and return to their home, rather than remain in a hospital or nursing setting.[ii]
The couple’s antagonists were Kowalski’s biological family, which fought to separate the women and have Sharon remain in a nursing home, and judges who sidelined their relationship. Kowalski’s parents were seen by these judges as natural protectors of a daughter they described as reduced by the accident to a childish, even sub-human, state. Donald Kowalski, Sharon’s father, became her legal guardian. He forbade Thompson from seeing her lover for years.
As the legal and health-care drama played out in courts and hospitals in Minnesota, national audiences of LGBTQ+ and disabled people, and feminists, watched in horror. Thompson’s and Kowalski’s story represented a worst-case scenario to members of each group (and even more so to people who were members of more than one of these groups): To feminists and activists in the women’s health movement(s), In re Kowalski represented the sidelining of women’s voices and preferences by legal and medical authorities. To disability activists, the case pointed to the infantilization of disabled adults in law and policy[v], as well as to the ways the waged work ethic kept people with cognitive limitations from accessing rehabilitative services, and the incentives that kept disabled people in nursing homes instead of in the community.[vi] To LGBTQ+ people it represented the same kind of social marginalization and legal vulnerability the AIDS crisis revealed – as well as, for some in the gay left, the limitations of mainstream health and caregiving systems, and for the rising queer legal advocacy movement the possibility of legal remedies to this vulnerability.
Image: Black type on a page of a pink activist flyer with legend, “Why Can’t Sharon Come Home?” and logo of the “Free Sharon” movement, a person-in-wheelchair symbol atop a double-woman sign (symbol of lesbianism). Courtesy Los Angeles Collection of Free Sharon Kowalski Committee, ONE Archives, University of Southern California (photo by me).
Nationwide demonstrations in at least twenty-one locations to “free Sharon Kowalski,” which were led by lesbian and straight feminists, disability-rights activists (especially feminist and queer disability activists), and civil libertarians, earned the case mainstream media attention. Ultimately, activism transformed the case. In 1991, a state appellate court in Minnesota declared Kowalski and Thompson “a family of affinity, which ought to be accorded respect,” and named Thompson her partner’s guardian.[iii] In April, 1993, shortly after the national March on Washington for Lesbian, Gay, and Bi Equal Rights and Liberation, at which the women were introduced as “the most famous lesbian couple in the United States,” Kowalski returned to the home she shared with Thompson.[iv]
On this important anniversary, let’s remember everyone who worked to create marriage rights and other rights for LGBTQ+ people and families. As these rights are imperiled, we may need to learn how to do the kinds of grassroots, legal, and legislative organizing our predecessors did all over again.
[i] Kowalski and Thompson had exchanged rings and considered December 17, 1983, the official start of their relationship, although they had known one another since 1976. Karen Thompson, with Julie Andrzejewski, Why Can’t Sharon Kowalski Come Home? (Duluth, Minn.: Spinsters Ink Press, 1988), 10-15.
[ii] For a basic understanding of the court case and its arc over time, I rely on Why Can’t Sharon; Casey Charles, The Sharon Kowalski Case: Lesbian and Gay Rights on Trial (Lawrence, KS: University Press, of Kansas, 2003); and my own reading of the full set of court records from the Groundspark Collection, Hormel Collection, San Francisco Public Library (Groundspark).
[iii] In re Guardianship of Kowalski.
[iv] Charles, 257, quoting from unsigned piece, ‘Gay-Rights Activists Cheer St. Cloud Pair,” St. Cloud Times, April 25, 1993: 1 and Kurt Chandler and Carol Byrne, “’I . .. Will Not Let Her Down’: Thompson Takes Kowalski Home to Stay,” Minneapolis Star Tribune, April 29, 1993: 1.
[v] Thompson discusses this in Why Can’t Sharon, 219. And see my discussion in “Disabled Lesbian Adult as Helpless Child: The Figuring of Sharon Kowalski in the Litigation Over Her Care — Sexuality, Disability, Age, and Law in the 1980s,” Panel on “Troubling Childhood,” Organization of American Historians Conference, Chicago, IL, April 5, 2025.
[vi] For perspective on the contributions to understanding the case provided by disabled people, particularly disabled lesbians like herself, I rely in part on Corbett OToole, communication with the author, as well OToole papers, Box 1. For the history of rehabilitation medicine, see Beth Linker, War’s Waste: Rehabilitaiton in World War I America (Chicago: University of Chicago Press, 2011), and my discussion in “Disability, Antiprofessionalism, and Civil Rights: The National Federation of the Blind and the ‘Right to Organize’ in the 1950s,” Journal of American History vol. 97/ no. 4 (March, 2011): 1031-35. For the waged-work ethic and disability policy, see Sarah F. Rose, No Right to be Idle: The Invention of Disability, 1840s-1930s (Chapel Hill: UNC Press, 2017).