Gay marriage reporting: Mark Joseph Stern talks about covering marriage equality, from Windsor to Obergefell.

I Covered Marriage Equality for the Last Two Years. Here’s What It Was Like.

I Covered Marriage Equality for the Last Two Years. Here’s What It Was Like.

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Aug. 4 2015 11:26 AM
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“If We Launch a Gay Section, Will You Write for It?”

How I covered the battle for marriage equality, from Windsor to Obergefell.

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Photo illustration by Lisa Larson-Walker. Illustrated portrait by Charlie Powell, image by Saul Loeb/AFP/Getty Images.

Back in June 2013, I was doing a phone interview for a story when then-editor-in-chief David Plotz walked up and tapped me on the shoulder.

“If we launch a gay section,” he asked, “will you write for it?”

“Yes,” I said. Then I went back to my interview. Nobody brought up the subject for two months. I assumed the plan had fizzled. Then, one afternoon in August, Plotz asked me to stop by his office. He was typing furiously when I knocked on the door.

“We’re launching that gay section,” he said, looking up from his computer but keeping his hands on the keyboard. “You’re writing for it, right?”

A few weeks later, Plotz secured associate editor J. Bryan Lowder and culture critic June Thomas to write and edit Slate’s new LGBTQ blog. Outward was born.

At the time, I didn’t realize that the following two years would be perhaps the most important period in the battle for marriage equality. It was pure luck on my part that, in the summer of 2013, I was a (1) gay (2) Slate freelancer who (3) often hung around the office bothering editors with more important work to do. The combination of these factors meant I was in the office when the Supreme Court handed down United States v. Windsor, invalidating a federal ban on gay marriage. And it meant that I immediately started covering the fallout from the ruling—especially federal agencies’ rush to comply, at the order of the Obama administration.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

In the wake of Windsor, it was unclear which part of Justice Anthony Kennedy’s hazy majority opinion judges would weigh more heavily: the ode to states’ rights or the encomium to “equal dignity.” When the New Jersey Supreme Court struck down its state’s marriage ban that October, I covered it like blockbuster breaking news. I covered a similar ruling by the New Mexico Supreme Court just as feverishly. And when a federal judge invalidated Utah’s gay marriage ban, I highlighted the fact—which seemed stunningly gutsy at the time—that he cheerfully cited Scalia’s Windsor dissent.

These were heady times to be a gay journalist and, really, a gay American. For a decade, I’d watched as the movement struggled, one grueling battle at a time, to secure equality in several deep-blue states. Now, a federal judge in Utah—Utah!—was sending gay couples to the courthouse in droves. It all felt surreal and magical. Evan Wolfson, the mastermind of the marriage equality movement, had expected his campaign to take several more decades. By December of 2013, it appeared to be just a few years away from victory.

In retrospect, Utah was the turning point. Two months later, Virginia’s ban had fallen, and judges had issued pro-equality rulings in Kentucky, Oklahoma, West Virginia, Illinois, and Ohio. In February, my colleague Dahlia Lithwick co-authored a piece which declared: “It’s Over: Gay Marriage Can’t Lose in the Courts.” Suddenly, it was blindingly clear that the federal judiciary had chosen equality Kennedy over federalism Kennedy. The tone of the coverage underwent a subtle shift. For a while, the press covered each new pro-equality ruling in a tone of surprise and uncertainty. But by February of 2014, an air of inevitability was settling over the movement and its coverage. “Of course another federal judge slayed a gay marriage ban,” we might as well have written. After all, post-Windsor, no judge had yet dared to uphold one.

Two massive questions loomed over the next year. First, would marriage make its way back to the Supreme Court? Second, would Kennedy himself listen to his equality instincts? Or would he rule against marriage and send the gay rights cause back a decade? Like most court-watchers, I expected Kennedy to side with equality after a period of requisite brooding. His previous gay rights opinions are gauzy paeans to the love and commitment that same-sex couples share. But Kennedy’s jurisprudence can be a bit volatile, so I remained paranoid that the justice would swing the wrong way at the last minute.

The first question was answered pretty quickly. Marriage enjoyed a spring and summer of lower court victories. (It was on such a winning streak, in fact, that Outward editor June Thomas relieved me of the duty of covering each new ruling, unless a judge said something particularly spicy.) In October, the Supreme Court declined to review three circuit courts’ gay marriage decisions, effectively bringing marriage equality to 11 states. I wrote at the time that maybe, as Political Gabfest co-host Emily Bazelon had floated, every circuit court would rule in favor of equality, obviating the need for the Supreme Court to step in once again. That would have been a nice shortcut to equality—but secretly, I rooted against it. The gay marriage movement needed its Brown v. Board of Education: A thunderclap of a ruling declaring that gay people across the country have the liberty to marry.

In November, the odds of a big ruling spiked when the 6th U.S. Circuit Court of Appeals upheld four states’ marriage bans. (I had warned of that possibility in August, when Judge Jeffrey Sutton lectured a gay rights attorney that the community should “change hearts and minds through the democratic process.” What argle-bargle.) Even though I expected Sutton to rule the wrong way, his opinion irked me more than I’d like to admit. His casual dismissal of gay Americans’ dignity was hard to swallow, as was his insistence that we must use the democratic process to secure what, for everybody else, is a fundamental right. Sutton took pains to focus his opinion on states’ rights and democracy, not the unworthiness of gay couple. Still, its bottom line sent a blindingly clear message to the LGBTQ community: You do not deserve what everybody else gets.

Irritating as Sutton’s opinion was, it set into motion the final smack down between gay couples and the states that forbade their marriages. Almost immediately after the decision, the marriage equality coalition decided to appeal the ruling as quickly as possible, in hopes of a June 2015 ruling. I prewrote most of a piece and spent every day on which SCOTUS released orders latched to my computer, waiting to hit publish. The court sat on the question for two weeks longer than it really needed to, leading to some agonizing days of brutal bathos. But June and I agreed that Slate readers should know as soon as the justices made their decision, so I was stuck watching, waiting, and fretting.

In January, the big moment arrived: The Supreme Court announced that it would soon decide whether states could ban gay marriage and refuse to recognize lawful same-sex marriages performed elsewhere. I was nervous for a few weeks—until the Supreme Court refused to stay a federal judge’s decision striking down Alabama’s ban. That decision, I wrote, signaled that a majority of the justices were prepared to rule for equality. Were they not, they almost certainly would have stepped in to put the Alabama decision on hold. (Not to brag, but I’m pretty sure recent events bear me out on this one.)

When argument day rolled around, Dahlia and I decided that she should sit in the courtroom and I should wait by my computer in my office, updating a live blog as soon as the court released audio. Kennedy’s disembodied voice made me unexpectedly nervous; his wavering tone convinced me that his vote was truly up for grabs. Dahlia calmed me down, though, with her description of Kennedy nearly bursting a pipe when Michigan’s attorney tells him marriage isn’t dignity-bestowing. Kennedy, she thought, was ready to go all the way.

Still, you have to be healthily skeptical about these things. As the term drew to a close, I spent every decision day in my office with the door closed and nothing but SCOTUSblog open on my computer. (SCOTUSblog provides frontline coverage of the court; if you aren’t there on decision days, you might as well be on Pluto.) I prewrote two pieces in anticipation of the ruling, “Supreme Court Upholds Gay Marriage Bans, Stunning Gay Rights Advocates” and “Supreme Court Rules Gay Marriage Bans Are Unconstitutional.” On June 26, the ruling came down—and I hit “publish” on the second post. (I still have nightmares that I accidentally published the first one.) Then came the rest of the work—feverishly poring over the opinion, updating the post with the court’s reasoning and key quotations, and spending the rest of the day mining the opinions for their most gorgeous, quirky, bizarre features. Once I had carved out all the best slabs, I pulled a chair up to the Breakfast Table and began discussing the decision with greater legal minds than mine.

Many of my colleagues were thrilled by the ruling—but on the day of the decision, I never really felt any joy. What I experienced instead was an overwhelming sense of relief. Had the Supreme Court ruled against marriage equality, I would have been crushed. I have a ridiculously romantic view of the Constitution as a deeply humane, enlightened document which guarantees, in Akhil Reed Amar’s words, that we are all born equal. An anti-gay ruling would have betrayed the Constitution’s promise of equal liberty in favor of animus and intolerance.

Covering marriage equality from Windsor to Obergefell was alternately thrilling, depressing, exhilarating, and infuriating. I don’t think I could stand to relive the anxieties and shocks those two years, and I’m very happy to have my Friday afternoons back. Still, on the whole, the experience was probably the greatest one of my life so far. For two years, I watched the judiciary vindicate a minority’s fundamental rights, sitting on the front row of history and shouting each new development through Slate’s megaphone. I had a blast. And I never want to do it again.