By The People | Two Steps Forward, One Step Back

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This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithway. And I'm Mark Joseph Stern. Welcome to episode three of By the People, a project from Slate about the true deciders of what the Constitution means. the American people, and how they might reclaim that power from an out-of-control Supreme Court. You can be part of the conversation by following the series here on Amicus and by going to slate.com slash by the people to read a remarkable collection of essays outlining both our predicament and some possible solutions. On this week's show, two steps forward, one step back. We lost 30 in a row. So literally 30 in a row. David, I commit to love you until death do us part. We had to show that their community, their neighborhood was fine with this ruling. And then we had to explain to lawmakers what our relationships were all about, why they really matter, why we wanted to marry. I hereby pronounce you. Partners for Life. legally married. This morning, the Supreme Court recognized that the Constitution guarantees marriage equality.

Last week, we explored the case of Elizabeth Turner, a girl born to an enslaved mother in antebellum, Maryland, who tasted two days of freedom before being hastily re-endentured to the man who likely raped her mother. Inri Turner is a vital piece of constitutional memory that, like so many of the stories of the second founding, has been largely forgotten. We shared that story to shed light on the very real lived certainty that ordinary people indeed some of the least... powerful people of their time, understood their own role in enforcing the Constitution. When plantation owners stole their children under color of law, citing so-called apprenticeship laws, black parents, especially mothers, read the plain text of their state constitutions and read themselves and their children into the clear words of emancipation. And they walked miles and miles to petition for their freedom. This week, we're turning to another more recent story of ordinary people insisting that they understood that the Constitution included them. A huge cheer, then singing as the decision reaches the crowd out front.

The historic ruling struck down the bans on same-sex marriage still in effect in 14 states, all of them in the South and the Midwest. Justice Anthony Robert F. Kennedy Jr. wrote the five to four ruling joined by the court's liberals. Eleven short years ago, a decade-long campaign for marriage equality came to fruition in the Supreme Court's decision. in Obergefell. The story you're going to hear is about a group of dedicated citizens who knew the Constitution had to include them, specifically its guarantees of liberty and equality. And they started out on this journey with some pretty small steps. Now, we can hear you saying, I thought this series was about taking the power back from this court, not celebrating the few times they got it right. I want to reassure you we are not falling into that trap again. This is not yet another. The beneficence of the courts will save us our of self-delusion. But the courts are one of the avenues for making constitutional change, and they can be cajoled or even forced into making that change as a response to popular and political action. The story you're about to hear is about a group of dedicated citizens who knew the Constitution, specifically it's garrison. of liberty and equality had to include them. And they started out on this journey with some pretty small steps. You know, we'd be sitting down, we'd be selling pieces of wedding cake for three bucks to raise some money and engaging with people. And then we'd get people to sign on to petitions and cards to their lawmakers and the like. But it was really thought of as pretty quixotic even back then. Mark Solomon was one of the key architects of the marriage equality movement. I first got involved in 2001 in Massachusetts, which was right when Glad and Mary Bonato filed the marriage lawsuit in Massachusetts to enable same-sex couples to marry. Mark was just getting involved at this point, but he would go on to lead full time on the cause, starting with the first state to legalize same-sex marriage, Massachusetts, all the way through to the final Supreme Court win that established equal marriage nationwide. Mark Solomon's book, Winning Marriage, The Inside Story of how same-sex couples took on the politicians and pundits and won, was named a Best Book of 2014 by Slate. which called it, quote, the definitive political history of marriage equality. Who wrote that? I wrote that. I covered this story closely, and Mark's work was so, so central to it. As national campaign director for Freedom to Marry, Mark really drove the equal marriage movement's political strategy for years. But back in 2001, things were not looking great. Where we just come from is a huge fight in Vermont on civil unions. The Vermont court ruled that the state had to either move forward with civil unions or with marriage, and they moved to civil union. And there was a huge backlash, even in sort of super liberal seeming Vermont, where I think it was 18 lawmakers who voted for civil unions lost their seats, even though they were under a requirement, a constitutional requirement, to do it.

You know, it was thought of as quixotic in our community and certainly with the public at large. We were just putting one foot in front of the next back then. So within your own community, facing a ton of skepticism, outside the community facing outright hostility. Yes, yes, for sure. Where I was in Boston, there was a lot of concern about the Catholic Church. Massachusetts is the second most Catholic state in the country, and people thought that the church would never allow it to take hold. They're like, are you sure? We really want to pick this fight with the church. Isn't there another way to do this? So that's where we were. And certainly in the public at large, you know, Republicans saw this as a great opportunity to pummel Democrats and Democrats, you know, by and large, we're running from this issue as quickly as they could. What? Did they start with Massachusetts, super Catholic, coming off a backlash in neighboring Vermont? The early 2000s were not a great time for LGBTQ rights. The 80s and 90s had seen anti-gay campaigns succeed in rolling back city and state equal rights ordinances. So when and where to bring cases was carefully considered. In advance of a case being brought in a state, there was. Always a grassroots group by design that was doing public education, public engagements, speaking at churches and ed boards and the like. And the litigators were very careful in picking which state to bring cases in. So Vermont was an early one. I mean, Hawaii was before that, but Vermont and then Massachusetts, which had a Supreme Court that we thought would be. amenable and most importantly, they had a lengthy constitutional amendment process. So we had two plus years to get the public into a place where they would ask their lawmakers to reject a constitutional amendment. You know, that all went into the thinking. It's so interesting that when you're planning which state to kind of launch this campaign in, you aren't looking at a state where you could easily amend the Constitution and like directly change constitutional meaning that way. You're actually looking for a state where it's hard to amend the words of the Constitution so that you could have a court embrace a constitutional principle and then kind of sit through the backlash without caving, weather it. And then by the time a constitutional amendment might actually be realistic, it would know longer be a huge threat because people would have sort of accepted, oh, this is what the Constitution means and it's what it should mean. That was the theory. In November 2003, the Massachusetts Supreme Judicial Court ruled four to three that the state constitution granted same-sex couples the right to marry. The first legal same-sex marriages began six months later on May 17, 2004. Good evening tonight. The first legal same-sex marriages in the country have taken place right here in Massachusetts. Rob, I commit to love you until death to us part.

David, I commit to love you until death do us part. And now, by the power vested in me by the Commonwealth of Massachusetts, I hereby pronounce you, partners for life, legally married. Amen. But the decision by the highest court in the Commonwealth of Massachusetts wasn't the end of the story. It was, in many ways, just the end of the beginning. We had a huge mountain to overcome in Massachusetts. Not only were President Bush and Governor Mitt Romney, like Dead Setapose, Bush announced federal constitutional amendments to undo the marriage ruling in Massachusetts. Mitt Romney wrote an op-ed in the Wall Street Journal comparing the ruling in Massachusetts to the Dred Scott decision. All the statewide Democrats that I can think of were opposed. John Kerry was running for president, was opposed to the ruling and wanted a constitutional amendment to undo it and replace it with civil unions. The attorney general was strongly opposed. The Senate presidents, the House Speaker, they were all opposed. So we were really out on our own. I think young people today may struggle to understand just how unpopular marriage equality was at this point in the dark, dark old days of 2004. Only about a third of Americans believed that same-sex couples should have the right to marry, a large majority overwhelmingly opposed it. So it's no surprise that Democratic politicians were running away from this issue as fast as they possibly could. The Massachusetts ruling was incredibly brave. Today, we know history vindicated the court, but that wasn't obvious or inevitable at the time at all, which is an important thing to keep in mind here. Like Larry Kramer said in our first episode, we're not simply talking about a popularity contest. Mapping popular will onto the Constitution isn't just about following the polling average. It's about charting a path through politics and litigation and organizing to a new understanding. of who and what the Constitution includes. And the win in Massachusetts meant that same-sex marriage was no longer a constitutional hypothetical. But the win needed defending. A two-year clock was now ticking for the Massachusetts legislature to put a constitutional amendment banning gay marriage on the ballot. So Mark Solomon and his fellow campaigners threw everything they had at turning a judicial ruling into a constitutional principle with widespread support. It's my proudest piece of work, probably the proudest piece of work I will ever do in my life. When the ruling came down, we had about 50 out of 200 lawmakers on our side, but we had to get to 150 out of 200. They only needed a quarter of the legislature to put it on the ballot. So we had a lot of persuasion to do. We knew that, you know, we were okay in Boston and in Northampton and in Cambridge, but there were so many parts of the state where there were very few out gay folks. What we did is we went to the Department of Vital Statistics in Massachusetts where they have copies of every marriage license.

This was back before there were iPhones with cameras and everything, and we would type into laptops the names of people who seemed like they were same-sex couples. And we mailed everybody and got on the phone and called and begged, cajoled, encouraged people to share their stories, especially in rural parts of the state and in, you know, older ethnic working class parts. Lawmakers were afraid. They thought that everybody was against and or a lot of people were against. And we had to show that. their community, their neighborhood was fine with this ruling. So what we did is we sent canvassers out to go collect signatures on postcards in support of the ruling. And we would go like literally right around lawmakers' homes, like within a half mile and then within a mile radius. And then the lawmakers would go through the postcode and say, oh my gosh, I never thought this 80-year-old woman who goes to church every day would support. I never thought this guy. And so that was part one to show the quantity of support. And then we had to show what... quality of support. We had to explain to lawmakers what our relationships were all about, why they really mattered, why we wanted to marry. I mean, truly people of good spirit did not understand why gay couples wanted to get married. A lot of people are like, is this just a political statement? I'd never really met a gay person in a longstanding relationship. You know, I don't know any. And it's true that in lots of parts of the state, you know, there were always gay people and same-sex couples, but they were living very quiet, closeted lives in many cases, getting them to step out of their privacy and sit down with their lawmaker and explain to them why their relationship, their marriage was so vital. And then the other thing we had to do was we had to make sure that they won elections. If you're trying to convince a politician to do something that could... mean that they're no longer a politician, you're going to lose. So we went all out and got involved in dozens and dozens of state. legislative campaigns. And, you know, we had real success. We reelected everybody who voted our way and we defeated a handful of people who were opposed to us. And that really shifted the balance of power. It feels like such a perfect distillation of popular constitutionalism to imagine you and your colleagues going to the Bureau of Vital Records in Massachusetts and pouring over marriage licenses to see who seemed gay and then cold calling them and saying, will you please Help us protect your marriages and show people why this is, in fact, the right that the courts have deemed it to be. Yeah, I remember we did that once with the guy. And his official address was... at his parents. And, you know, it turned out that he hadn't told his parents that he had gotten married or that he was gay. And so we, I remember, we outed him in the process. So, you know, it was all sorts of. Oh, my God. There were not many of those. That was the only one of those. But he was really pissed at us. Yeah. I understand. But all for the greater cause, right? Yes.

Oh, that must have been awful for them. Yes, unfortunate collateral damage, but the larger point is the one to take away. The profound importance of this really local, grueling effort to pound the pavement and work the phones and defend the win by changing hearts and minds, sometimes one at a time. It's political, but it's also constitutional interpretation in action. It's always about making the case that for groups of LGBT people, black people, women, that we are part of it. We are part of what the Constitution is talking about when we're talking about equal protection under the law. It's up to the group to make the case that we belong. We are part of this. We are part of marriage. Here's why we're part of marriage. And to make the case that we deserve equal protection. What we did as a movement, what we did as a community, make our case that we belong, that we are part of this American story. We're going to take a short break. When we come back, brace for the backlash, that first victory in Massachusetts sets off a wave of opposition and a string of losses. This episode is brought to you by BetterHelp. You've heard me talking about the benefits of therapy and about BetterHelp for a while now, and you might be considering online therapy, but maybe you're also wondering, what do people think of the service? Well, you can find out for yourself by going to BetterHelp.com slash reviews to read customer reviews in real time. These reviews are updated every single day with hundreds of people dropping by to say how much they love BetterHelp and how helpful it's been to them. More than 6 million people have used BetterHelp globally, and the consistent feedback from real users makes it easy to see why so many people continue to choose better help as their online therapy service. And finally, it's really easy to get started. Answer a few questions, get matched with a therapist based on your needs, and switch therapists at any time if it's not the right fit. See the reviews, see what stands out, and see if BetterHelp is right for you. Visit betterhelp.com slash amicus. That's betterhelp.com slash amicus. This episode is brought to you by Ground News. Here at Amicus, we read a lot about the Supreme Court, but it's not the only news we consume. And like you, we seek out different sources on the same subject to get the full story. Ground news is a great way to get down to the facts. It's an app and website that makes it easy to compare news sources break free from algorithms and think critically about where you're getting your news. Recently, I went to Ground News to learn more about the resignation of British Prime Minister Keir Starmer. Ground News had rounded up coverage from 40 different sources. According to the platform, 46% of the coverage is center or nonpartisan. But if you click right, you can see right-leaning coverage that claims, quote,

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You're listening to Episode 3 of By the People on Amicus. Two steps forward, one step back. The backlash to the Massachusetts decision was swift and fierce. Mark Solomon mentioned Mitt Romney and John Kerry's opposition, but it went beyond that. Yes. In the 2004 November election, voters in 11 states were presented with ballot proposals to ban marriage equality. We lost 30 in a row. So. Literally, 30 in a row. It was, you know, over multiple cycles. What did those defeats teach you about the limits of asking courts to recognize a principle before enough of the voting public understood and accepted it? I loved the way we were going about this. This is a super diverse country, and we knew that if we waited to have majority support in... Alabama or even Wisconsin before we tried to win marriage in Massachusetts or Vermont or New Hampshire, we'd be waiting forever. These things are not linear and they are stormy. So it's a push-pull. In 2004, you're right, there was a tremendous amount of backlash to the Massachusetts ruling. I mean, we had a huge decision to make as a movement. There were many... partners in the movement and plenty of leaders in the Democratic Party who really wanted us to stop. They're like, just stop. We didn't stop, but we gathered together and came up with a roadmap to victory. One of the things that was really important in our work was that we understood what it would take to get to where we wanted to go, to a national victory. We knew we needed to win a critical mass of states and build a critical mass of public support. We weren't sure it was going to work, and we knew there would be lost along the way, but we had sort of a roadmap to victory, and so we stuck to it. We needed to change people's perception of who gay and lesbian people are, and then we needed to explain why we wanted to marry, because we weren't just asking to be left alone. We were asking to join what most people viewed as the most important institution in our society. So we had to explain why we wanted to get married. So our job was to... figure out how to do that as speedily as possible. So it was telling our stories, opening up our homes to people to share who we were and introduce them to our children and explain why we wanted to have kids and why marriage would protect our families. So Mark and the people campaigning with him were figuring out how to make the change as speedily as possible, but at the same time, they were facing pressure to take their foot off the gas. And out of that tension, a pattern of surprising results was emerging. What had been a string of unbroken losses starting back in 2004 began to reflect a different reality over the next few years, putting the movement for marriage equality on the cusp of a major victory in 2011. We had won in...

Several of the New England states, by then in Vermont, in New Hampshire, in Maine, where we won, and then it was taken away in a ballot initiative, and then we had to win it back. So Connecticut was a win. Iowa, in the heartland, was a court win that we were holding onto. On the flip side, we won in court in California, and that was undone at the ballot in 2008. So two steps forward, one step back, and sometimes one step forward, two steps back. President Barack Obama was part of that equal marriage two step. He, that he backed civil unions and he was evolving. He evolved for a very long time on the issue. With respect to the issue of whether gays and lesbians should be able to get married, I've spoken about this recently. As I've said, you know, my feelings about this are constantly evolving. I struggle with this. President Obama only ultimately came out with a full-throated support for equal marriage in May 2012. What changed? In part, hearts and minds were changed by the sustained work to make same-sex couples' lives real and visible in American life. But that wasn't all. As Mark explains, the next big win for equal marriage came in 2011 when New York State passed its landmark Marriage Equality Act. The lesson of New York was that you have to do all the hearts and mind stuff and the litigation, but you also have to play hardball politics. And in 2009, our community raised a significant amount of money for Democrats in the state senate, and they had promised that they were going to bring up a marriage vote and get it done. They didn't. So some of my colleagues formed something called Fight Back New York, and we knocked out several states. senators, Democrats and Republicans who voted against us. You know, we showed them that we were serious. We also did some pretty significant engagement with Newark Republican donors. They made the case that this was something really important to them and that they would be remembering how they voted, what they did, and all of that. To give credit words, do we had a masterful politician who was governor, Andrew Cuomo, then, who really put this on his back and said, I want to get this done. You know, a lot of the Democrats really liked having this as an issue because they were able to raise money off of it as an issue. And they knew that once the bill passed, it would be much harder to raise money off of this as an issue. Andrew Cuomo actually held them accountable and said, look, you can't play games with this one. He's made a lot of mistakes since then, but that was one that he was super masterful on. I love that after all the Ghazi hearts and minds talk, it still here comes down to hardball politics, including taking out your alleged allies who don't tow the line and teaming up with perhaps unseemly politicians to get certain legislation where it needs to be. That's something you just see. over and over again in every single movement that's ever achieved any good for this country, right? And I'm sure at the time in the trenches, it feels maybe a little weird or a little gross or mean. But like that's how politics works. And I don't think that anyone has ever changed constitutional meaning without making compromises that they look back on later and think, you know, it was necessary at the time, but I didn't love doing it. Yeah. I mean, honestly, we gave.

politicians every opportunity to do the right thing. And I did not have any compunction about defeating someone. The place actually where I had more misgivings was that we made a vow that we would work to reelect every person who voted our way. And, you know, that involved people who were some really shady characters. But we stuck by them no matter what, even if someone who we like better. was running against them, like in a Democratic primary. And, you know, we got a lot of crap for that. But we wanted the narrative to be that if you vote with us, we, meaning the marriage equality advocates, are with you. And if you vote against us, we're against you and make it super clear. So we stuck by pro-life Democrats who voted our way on marriage, corrupt Democrats who voted our way on marriage, et cetera, et cetera. Let's fast forward one year, 2012. Voters are finally approving marriage equality by ballot initiative. Obama has completed his evolution, his long evolution, as you called it, to full support. I have to tell you, as I said, I've been going through an evolution on this issue. At a certain point, I've just concluded that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married. The movement is now winning across a bunch of institutions, including a lot of religious institutions that have become friendly and allied. How important was it to demonstrate at this point that marriage equality could command democratic support rather than simply prevail through judicial rulings when you were still very much pursuing the judicial track vigorously? at this stage. Like, was there any tension there? Or did it seem like these are the two tracks that run alongside each other? We secure these Democratic victories so that the courts see that when they rule for us, they will be in line with where the public is. It was courts, it was legislatures, and then it was at the ballot. We knocked off the court wins. earliest state court wins. A lot of our wins around the time of New York were state legislative victories where governors would sign bills into law. I remember we had a number of them in a row. We had like Rhode Island and Delaware and then Illinois and Hawaii and, you know, New York ultimately. We also knew that there were some places where we would need to win at the ballot where we couldn't simply legislate. Our opponents would have a chance to undo the legislation at the ballot. And so we had to be ready for that. So we knew two things. We'd hit the number of states that we thought we could at the moment. And the next states we needed to win would be at the ballots if we wanted to keep adding, you know, adding to our momentum and growing support. And we knew that it would help our cause because our opponents. would always say that whenever the people voted on this, they voted against it, it would really help our cause to be able to show that that wasn't the case anymore.

So 2013 then brings us to the Supreme Court's decisions in Windsor and Hollingsworth. Windsor strikes down the federal ban on same-sex marriage. That defense of marriage act, which for federal law defined marriage as the union of one man, one woman only denied all federal benefits to gay couples that has been ruled unconstitutional. Hollingsworth clears the way for marriage equality to resume in California. By virtue of the power and authority vested in me by the state of California, I now declare you spouses for life. At that point with this new reality, you have more marriages on the ground. Prop 8 is gone. Finally, couples in states that allow marriage equality have full marriages under federal law. Did that change anything about your strategy? Did this feel like, okay, we've gotten a huge leg up and now it's time for the final push? Or was it sort of just full steam ahead on what had been going on before? And I'm asking because, you know, one of the points you keep bringing up is that the more people who are given rights here, the more people who are folded into this, the stronger the movement becomes. And in retrospect... I kind of see 2013 as the turning point that leads straight to 2015. But of course, it didn't necessarily feel like that at the time. You still had many, many states with bans on the books that were being enforced. So what was the feeling after those twin victories? So we didn't expect necessarily all of the lawsuits that came after the Windsor win. There were, you know, a huge number of federal lawsuits questioning state. bans using the logic of Windsor. And initially, we were a little nervous about it because, you know, we didn't know the federal courts were immediately going to start applying the logic of Windsor to undoing state bans on marriage. As you said, Windsor just said that states that have marriage, the federal government can't restrict all the benefits and protections that come along with marriage. It did not say that a state has to allow. same to couples to marry, but there was a whole rash of federal suits, and we were winning. I remember early on some of the Tenth Circuit, say, like Utah and Oklahoma, and, you know, just places that were super conservative. And, you know, we had this long winning streak for a long time in federal court. And so in retrospect, I think the Windsor decision was a big momentum boost. Scalia, you know, said basically, We've lost after Windsor, and this is going to be applied to states. And he was right. It was applied at the state level. And so as a movement, we were getting ready to go to the ballot in other places, organizing huge, expensive campaigns in places like Ohio and Michigan to undo their constitutional bounds. But the lawsuits just swept the country. We're going to pause to hear from some of our sponsors. When we come back, June 2015, the biggest civil rights ruling of our generation.

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Hi, this is Debbie Millman from the Design Matters podcast, and today's episode is sponsored by Lexus. Design isn't just about function. It is about feeling. At Lexus, every detail is intentionally designed. Master artisans don't just focus on what you can see. They obsess over what you can feel. The way the door closes, the precise click of a switch, the acoustic feedback of every control. Because a car that doesn't make you feel something is a car that stops short of amazing. Experience amazing at your Lexus dealer. Welcome back to Amicus and episode three of By the People. Two steps forward, one step back. That takes us straight to Obergefell. 2015, the Supreme Court strikes down all remaining bans on same-sex marriage. This morning, the Supreme Court recognized that the Constitution guarantees marriage equality. And it's profound. The five-to-four vote in many ways reflecting the huge societal shift of the last 20 years. Progress on this journey often comes in small increments. Sometimes two steps forward, one step back, propelled by... The persistent effort of dedicated citizens. And then sometimes there are days like this, when that slow, steady effort is rewarded with justice that arrives... like a thunderbolt. A historic day here at the Supreme Court, Jake. You can probably hear gay rights advocates to my right cheering by this decision, authored by Justice Robert F. Kennedy Jr., saying that the right to marriage is a fundamental right, and gays and lesbians cannot be excluded from that right. In doing so, they've reaffirmed that all Americans are entitled to the equal protection of the law. At this point, did you feel more like the Supreme Court was creating a constitutional right? Or did you feel that it was acknowledging that there was already a right in existence that had been embraced by so much of the country in about a million other ways and that it was time for the court to recognize it? And I know that this is kind of like a 30,000 foot question. But it feels important to me, especially, you know, more than a decade later, when you still have opponents of gay rights saying the court summoned this freedom, this liberty out of whole cloth, you know, fabricated this new conception of liberty. But if you go back and actually read Justice Robert F. Kennedy Jr.'s opinion, it's almost written more like, this exists and it's time for us to acknowledge it. Yeah, I think he was so smart in the way he phrased it. I mean, This quote that I love, the nature of injustice is that we may not always see it in our own times is exactly what he was talking about. He's like, you know, these were folks who were around for a long time. And, you know, he said in Obergefell, and I'm quoting, you know, may long have seen natural and just to keep gay people out of the institution of marriage. Then what happened by the time of Obergefell is that that was inconsistent with the central meaning of the fundamental right to marry. That's also a quote. So.

I guess what I loved about his opinion so much is that he talked about the social movement that brought same-sex couples to the four. Another quote, he said, through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process. So it's through organizing, through telling our stories, that we made our case that we were part of the fabric of America. We were not outcasts who should be arrested for our existence or kicked out of federal. employment. We were actually part of the fabric of our communities. That was sort of A, and B, we wanted to marry for basically the same reason anyone else wanted to get married. to look after our partner, to take responsibility for our partners and our relationships, and to best look after our kids. You know, it's like this dialectic thing where you have these rights in the Constitution and it's up to groups, you know, and allies to make the case that, you know, hey, we belong as well. We're part of this as well. They're talking about us, too. So Mark Solomon is essentially saying this is a case of yes and, yes, the court was responding to a shift in public opinion, and yes, it was a judicial opinion that constitutionalized equal marriage, or is it a binary? Obergefell is either a crowning triumph of popular constitutionalism or it's another progressive high watermark for judicial supremacy. To me, it's popular constitutionalism almost all the way down with a soft layer of judicial supremacy for padding at the bottom. Normal people fought like hell to put the pieces in place for this ruling. If they hadn't, Obergefell never would have happened. I don't think there's anything wrong with people setting up the board so that the Supreme Court can make the final move. That is, after all, the paradigm we were living in at the time. Yeah, and in a way. it's a paradigm we are still trapped in, which leads us to the darker side of popular constitutionalism, which you, Mark, have written about for this project. Yes, so it turns out that progressives aren't the only ones who can create constitutional meaning by mobilizing the citizenry and changing public opinion because DCV Heller is... also a sterling example of popular constitutionalism in action. That's the 2008 Supreme Court decision that reinterpreted the Second Amendment to create an individual right to bear arms rather than preserving a collective right of state militias. And As I wrote in my piece, Heller is kind of like a dark mirror that reflects back all the dangers of pressing the courts to remove an issue from the democratic process. Well, let's just state up front that same-sex marriage and gun rights are in no way equivalent. I have never heard of a same-sex marriage that killed or injured a single person, whereas firearms kill tens of thousands of Americans every single year.

So that is true, but there really is some shared DNA here. Riva Siegel, a professor at Yale Law School and an intellectual godmother of this series, pointed out just months after Heller that it was actually popular constitutionalism dressed up to look like originalism. She walked through the gun lobby's decades-long strategy to rewrite the Second Amendment, and the outlines of that tale do sometimes kind of echo the story that Mark Solomon just told us. committed activists convincing a growing portion of the public that they had a constitutional right to own firearms. These activists formed an alliance with the Republican Party to enshrine that view into legislation that weakened gun safety laws. And they convinced Republican presidents and senators to pick judges who would read the Second Amendment as an individual right. Eventually, they got five votes at the Supreme Court to do just that. And by that point, a supermajority of the public had already concluded that the Constitution really did grant an individual right to bear arms. Right. And I think this points back to the paradigm we're trapped in. If we're saying that it is popular constitutionalism, but only up until the point at which the Supreme Court decides what is constitutional, then we've just landed in the judicial supremacy trap. It's the trap we've been in for at least the past 40 years since, as we've discussed in episode one, the switch gets flipped, and the American public come to believe that the Supreme Court is the only venue for deciding what the Constitution means. The Supreme Court didn't cite to the changing current popular understanding of the Second Amendment in Heller. It purported to be an originalist decision, right? But in reality, it was leaning... heavily unpopular understanding to shore up its legitimacy. So all the polling in 2008, when Heller comes out, shows that a supermajority of Americans support a law-abiding citizens right to keep a handgun in their home. What happened then, though, once the Supreme Court enshrined that right, is that it took the whole issue largely out of the democratic process. Which brings us to the real lesson, I think, and it's not popular constitutionalism good or popular constitutionalism bad. It's that once the Supreme Court constitutionalizes something, it takes the issue. out of the hands of the people who are supposed to keep making that case. After Heller, you don't get an ordinary legislative debate about assault weapons bans anymore. You get judges insulated from any election deciding whether your state's law even survives. After Obergefell, marriage equality is theoretically settled, but LGBTQ people are still fighting in state legislatures and school boards every single day because the myth that it's settled, the court said so, doesn't actually protect you from the backlash. Yes, we spent 50 years training ourselves to believe that if you can just get five votes at the Supreme Court, you've won permanently and unconditionally.

Heller and Obergefell both prove that's true only until the court's composition, or the country, moves again. Heller is currently being used to strike down waiting periods, age limits, and assault weapons bans that have overwhelming public support. So the real test of popular constitutionalism isn't whether you can get five votes once. It's whether you can keep making the argument to the public after the ruling. So that even if the court's composition shifts, the country itself won't go along with rolling it back. I'm remembering something Mark Solomon said. We knew that to win marriage nationwide, which is always our goal, we needed to win a critical mass of states and a critical mass of public support in order for one of the national actors, in our case the Supreme Court, to rule our way. They were working... all the angles. And in this case, it was the Supreme Court. We have a system that now says the only national actor is the Supreme Court, a system that has created this conservative supermajority that employs a purely ends-based theory to reach its decisions, a theory that sometimes represents the will of the people, but often doesn't. And in reality, at this stage, it doesn't have to because the court has placed itself above and beyond accountability. Marriage equality advocates are still waging the battle for hearts and minds today. After all the progress that we saw with Obergefell, LGBTQ people are now facing damaging, damaging backlash. Two steps forward, one step back. And it feels like we're in this new place of only taking steps backward, and those steps are dictated by an anti-democratic supermajority at the Supreme Court that has crowned itself the law king. Continuing to go along with the notion of the court. as the sole decider of what the Constitution means is its own kind of madness. We have got to dance to a different tune, and at the same time, we have to defend the legal wins that expand constitutional freedoms for those people who need them most. I asked Mark Solomon about that very tension between having relied on the courts for constitutional interpretation as the sole venue where rights are vindicated for the past 50 years or so. And the reality of dealing with a court now that is more interested in taking us backward and claiming the absolute power to do so.

So we're 11 years out from Obergefell. There are still a lot of anti-gay politicians and some anti-gay Supreme Court justices who are trying to hang a question mark over it at a minimum. Does that make you nervous? Or do you feel like at this point with so many people reliant on the rights that it acknowledged that it's very much set in stone? I never think anything is set in stone, so I don't like that Clarence Thomas invited a challenge. And we are, you know, I'm still at it, working with my close colleagues like Mary Bonato at Gladlaw, who litigated Obergefell and litigated the Massachusetts case and others. We feel good about where we are right now, you know, the fact that. a super majority of Americans are in support that, you know, we've commissioned a lot of qualitative and quantitative research. Rand did a giant study of 20 years of marriage that showed that it only helped and hasn't hurt anybody, that our opponent's main arguments that this would lead to the degradation of marriages. Fewer people marrying actually is false and that where gay couples could get married as they got married, more straight people would actually get married. We don't know why, probably because they were inspired and reminded of the importance of marriage. So we are preparing. We know that this is a different Supreme Court. It's a much more conservative court. They wouldn't have, I believe, decided Obergefell in the way that the Robert F. Kennedy Jr.-led decision came out. But I also believe that the courts reflect society and they don't want to have this fight. They know that 65% of Americans or 70% somewhere in that range supports that a much higher percentage doesn't want to undo the ruling. and that gay couples and communities and businesses and governments have just come to rely on merit. So vigilant and confident simultaneously. Mark, thank you so much. Happy to do it. Thanks for covering it so well. You've done an amazing job over the last long, long time covering this story.

Next week in the final installment of By the People on amicus. The public saying, for example, with the No King's rallies, we do not think that unaccountable executive power is part of our political system. Jamel Bowie joins us to help map out what taking back ownership of the Constitution might look like for you and me today and tomorrow. I think it's important for ordinary people to recognize that this bottom-up process works for all kinds of issues, all kinds of stuff. That's all for this episode, but Amicus Plus members, please do join us in the smokeless cigar bar for this week's jam-pack bonus episode. This week, we're keeping an eye on the Trump administration's latest attempt to get the Supreme Court to lend them a hand in skewing the midterms. If you thought the mail ballot question was settled at the end of the Supreme Court term, think again. We're also talking about the bumps in the road to Todd Blanche's confirmation as Attorney General. Maybe just maybe a couple of lame duck senators seem to be kind of belatedly finding their spines. And we are sharing a really stirring piece of reporting from our colleagues. Shirin Ali, that is a reminder of the very real stakes in this conversation we're having through our By the People series. Yeah, in the wake of the Supreme Court's assault on voting rights, Shirin's piece is a reminder of what restoring ownership of the Constitution to the American people really means. Visit slate.com slash amicus plus to hear that conversation and to become a beloved plusketeer. By joining you support our work, work like this by the people series. The time and the resource. we have devoted to this project is all thanks to our plus subscribers. Members can also read all the pieces in the series like Marx on Obergefell and Shirins on the civil rights martyrs in the VRA without ever hitting a paywall. Again, go to slate.com slash amicusplus to join. You can also subscribe to Slate Plus directly from the Amicus show page on Apple Podcasts and Spotify to listen to Amicus ad-free and to access our bonus episode, which is available for you to listen to right now. We'll see you there. Thank you so much for listening and thank you so much for your letters and your questions. Keep them coming. You have two days to get us your questions for a special Dear Jurisprudence Mailbag edition of the show. Email us at amicus.setslate.com. You can also find us at Facebook.com slash amicus podcast. And you can leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. Sarah Burningham is Amicus's supervising producer. Our producer is Sophie Summergrad. We had invaluable life-saving help again this week from senior supervising producer, Joel Meyer. Hillary Fry is Slate's editor-in-chief. Susan Matthews is executive editor. Mia Lobel is executive producer of Slate. podcasts and Ben Richmond is our senior director of operations. We will be back with episode four of By the People on Amicus next week. Until then, do take good care.

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