Award-winning article digs up the radical roots of same-sex marriage

In the years following New York City’s Stonewall riots in 1969, three distinct legal cases pushed for what would become, decades later, a nationwide reality: the right of same-sex couples to marry.

The early-1970s cases — in Minnesota, Kentucky and Washington State — set legal precedents supporting a heterosexual definition of marriage. But they were significant, argues Michael Boucai, associate professor in the UB School of Law, because they brought unprecedented attention to the existence and ideals of gay liberation.

The cases also were the first to frame the question of who should be allowed to marry “not defensively but offensively, in constitutional terms.” That approach — seeking in the Constitution a right to marry regardless of gender —ultimately would lead to the U.S. Supreme Court’s historic 2015 decision in Obergefell v. Hodges.

Boucai published a major article last year in the Yale Journal of Law & Humanities, “Glorious Precedents: When Gay Marriage Was Radical,” that told the story of these three groundbreaking cases. Now, he has been awarded the prestigious Michael Cunningham Prize, recognizing his article as one of the three best law review articles in 2015 that addressed sexual orientation and gender identity.

The honor is awarded by the Williams Institute at UCLA School of Law, a think tank that conducts research on sexual orientation and gender identity law and public policy. Boucai’s article will be republished in Volume 15 of the institute’s Dukeminier Awards Journal, along with those of his fellow honorees: James M. Oleske Jr. of Lewis & Clark Law School and Suzanne B. Goldberg of Columbia Law School.

“One obvious distinction,” Boucai writes, “is that these first cases stood no chance of winning. Except in moments of extraordinary bombast or naïveté, neither the litigating couples nor their attorneys expected the lawsuits to succeed in any conventional sense. To claim a right to marry a same-sex partner in the early 1970s was necessarily to seek something other than a favorable judgment in court and a license from city hall. What was that something? Where, if not to the altar, were the first gay marriage cases supposed to lead?”

He answers his own question by saying that “marriage litigation in the wake of Stonewall had much more to do with gay liberation generally than with gay marriage specifically,” and that the three cases “deployed the symbolism of marriage to proclaim homosexuality’s equality, legal and moral, in a society that almost ubiquitously criminalized its practice.”

Boucai, who joined the UB Law faculty in 2012, has degrees from Yale, the Georgetown University Law Center and the University of Cambridge. He teaches courses in criminal law and family law, and his scholarship focuses on the legal, political, moral and social norms that regulate sexuality, reproduction and various forms of intimate association.