By The People | Two Steps Forward, One Step Back

Summary

Amicus With Dahlia Lithwick | By The People: “Two Steps Forward, One Step Back”

Episode Date: August 1, 2026
Hosts: Dahlia Lithwick & Mark Joseph Stern
Guest: Mark Solomon (marriage equality organizer)

Episode Overview

This episode continues Slate’s “By the People” miniseries, focusing on how American constitutional meaning is shaped not only by the Supreme Court, but by social and political movements—using the marriage equality fight as a central case study. The conversation investigates how ordinary citizens, activists, and communities pressed their claims for constitutional inclusion, forced political and judicial change, and how court victories do not always mean finality. The episode also sets this in dialogue with less progressive examples of “popular constitutionalism,” like the expansion of gun rights.

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Key Discussion Points and Insights

1. The Forgotten History of Constitutional Activism

• Briefly revisiting last week’s story (Elizabeth Turner, an enslaved girl in antebellum Maryland), Dahlia Lithwick (03:00) explores how marginalized Americans have long claimed their constitutional rights, sometimes even before courts or governments recognized them.
• Quote (03:19—Dahlia Lithwick):

  “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.”

2. The Marriage Equality Movement: A Case of Popular Constitutionalism

Early Skepticism & Public Backlash

• Mark Solomon, key architect of the marriage equality movement, describes starting in Massachusetts after early setbacks in Vermont (06:20–08:00).
  • The early 2000s was a daunting era for LGBTQ rights, with hostile public opinion and political resistance, including from Democrats.
• Quote (07:54—Dahlia Lithwick):

  “Why did they start with Massachusetts? Super Catholic? Coming off a backlash in neighboring Vermont…”

Strategic State Selection and Grassroots Organizing

• Mark Joseph Stern (08:56) comments on litigation strategy:
  • Winning in a state where constitutional amendment would be difficult created space for public acceptance before backlash could overturn a win.
• Mark Solomon (09:39):
  • Describes how Massachusetts’ Supreme Judicial Court’s 2003 decision legalized same-sex marriage, setting off both celebration and a massive defensive campaign to protect the ruling.

Personal Outreach, Visibility, and Electoral Hardball

• Mark Solomon (12:49) details grueling ground work:

  • Collecting marriage license data, identifying couples, cold-calling to mobilize support, and canvasing to persuade lawmakers with evidence of local support.
  • Persuasion required explaining not just that gay people existed, but explaining the value of marriage, particularly in rural areas (14:00–15:00).

• Memorable moment (16:03–16:20):

  • Mark shares accidentally outing someone to their parents while attempting to mobilize marriage supporters.

• Quote (16:56—Mark Solomon):

  “It’s always about making the case that… we are part of what the Constitution is talking about… we belong, that we are part of this American story.”

3. The Backlash and Setbacks

• [20:47] Mark Joseph Stern: In the wake of the Massachusetts decision, fierce backlash led to ballot measures in 11 states and a “string of 30 losses in a row.”
• Mark Solomon (21:14) reflects:
  • Despite losses, smaller wins and persistence eventually built momentum.
  • Campaigners recognized that hearts and minds—not just lawsuits—would need to be won for national change.
  • Pressure both to slow down and to persist, but a majority of the movement resolved to keep pushing rather than pause.

4. “Two Steps Forward, One Step Back”: Persistence and Political Savvy

• Mark Solomon recounts (23:30) key victories in New England, followed by defeats (California’s Prop 8), but then comebacks via state legislatures and lawsuits.

• Hardball politics: In New York, the movement punished both Republicans and Democrats who voted against them—even punishing incumbents—and stuck by those who supported equality regardless of their other politics (26:47).

• Quote (26:47—Mark Solomon):

  “We gave politicians every opportunity to do the right thing… 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.”

5. The Interplay of Politics, Courts, and Public Opinion

• By 2012, public opinion was tipping toward support. President Obama finally “evolved” to explicit support in May 2012 (24:02–27:53).
• Advocates worked to win victories not just in courts but at the ballot box and in legislatures, disproving the idea that courts imposed marriage equality (28:53).

6. From Windsor to Obergefell: Litigation Accelerates

• The Supreme Court’s United States v. Windsor (2013) created a landslide of federal litigation—unexpectedly swift expansion (31:22).
• Mark Solomon:
  • “Windsor… was a big momentum boost. Scalia said, basically we've lost after Windsor and this is going to be applied to states. And he was right.”

7. Obergefell: Constitutionalizing Marriage Equality

• Supreme Court’s 2015 Obergefell ruling established nationwide marriage equality.

• Mark Joseph Stern asks whether Mark sees Obergefell as creating or simply recognizing a right (36:09).

• Mark Solomon (36:55) sees it as both:

  • “What I loved about [Kennedy’s] opinion so much is that he talked about the social movements that brought same sex couples to the fore. … through organizing, through telling our stories, that we made our case that we were part of the fabric of America.”

• Notable Kennedy quote (cited by Mark Solomon, 36:55):

  “The nature of injustice is that we may not always see it in our own times.”

8. The Limits and Dangers of Judicial Supremacy

• Comparison to the gun rights movement and D.C. v. Heller (2008) as another example where years of public activism and organizing helped reshape constitutional understanding (39:33–41:30).
• Danger: Once the Court rules, debate often leaves the public sphere, and democracy takes a back seat.
• Dahlia (43:45):

  “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…”

9. Current Fears, Enduring Challenges

• Mark Solomon (46:22) remains vigilant:
  • “I never think anything is set in stone. … We are preparing. We know that there's a different Supreme Court, it's a much more conservative court…”
  • Public support remains strong, and marriage has brought only positive effects, but the movement is still prepared for new threats.

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Notable Quotes & Memorable Moments

• Mark Solomon (05:10):

  “We’d be sitting down, we’d be selling pieces of wedding cake for three bucks to raise some money and engaging with people. … It was really thought of as pretty quixotic even back then.”

• Mark Solomon (12:49):

  “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…”

• Mark Joseph Stern (16:56):

  “It feels like such a perfect distillation of popular constitutionalism…”

• Mark Solomon (23:30):

  “Two steps forward, one step back, and sometimes one step forward, two steps back.”

• President Obama (27:53):

  “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.”

• Mark Joseph Stern (38:53):

  “To me, it's popular constitutionalism almost all the way down with a soft layer of judicial supremacy for padding at the bottom.”

• Dahlia Lithwick (45:32):

  “It feels like we're in this new place of only taking steps backward. And those steps are dictated by an anti democratic super majority at the Supreme Court.”

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Segment Timestamps

• [01:17] Series introduction; “By the People” explained.
• [03:29] Introduction to the marriage equality struggle as a case study.
• [05:10] Mark Solomon describes early organizing.
• [07:54] Why start in Massachusetts? The state’s unique challenges.
• [09:39] 2003 Massachusetts decision; first legal marriages.
• [12:49] Defending the court win: grassroots organizing to persuade lawmakers.
• [14:00–16:20] Visibility work, missteps, and the human cost (accidental outing of a supporter).
• [20:47–23:03] Post-Massachusetts backlash, ballot losses, and persistence.
• [23:30–27:41] How victories and losses shaped strategy: from New England to New York.
• [28:53–31:22] Hearts and minds, legislatures, courts, and the “Obergefell two-step.”
• [31:22–32:51] After Windsor: a wave of lawsuits and nationwide momentum.
• [34:59–36:55] The Obergefell ruling and its deeper meaning.
• [39:33–41:30] The gun rights movement and Heller: popular constitutionalism’s “dark mirror.”
• [43:45] Why rights aren’t “settled” by the Court; democracy after judicial wins.
• [46:22] Vigilance in defending gains; fears of rollback.
• [48:13–end] Preview of next episode; calls to action for listeners.

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Takeaways for Listeners

• Constitutional meaning is not imposed only by courts: grassroots organizing, storytelling, and electoral action can, over time, pressure courts to recognize new rights—if the public is also persuaded.
• Even landmark Supreme Court victories don’t end the struggle: rights can be rolled back, and real security comes from enduring public commitment.
• Political and legal change is a “two steps forward, one step back” process, often requiring engagement at all levels—personal, political, and judicial.
• Both progressive and regressive constitutional shifts (marriage equality and gun rights) have employed the same underlying strategies of popular constitutionalism.
• The perpetual task is to broaden, defend, and deepen constitutional inclusion—no victory is forever, and democracy requires ongoing vigilance.

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For more: Access the “By the People” series essays and past episodes at slate.com/bythepeople, and listen next week as the series explores how ordinary citizens might take back concrete ownership of the Constitution in daily American life.

Transcript

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this episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic who gets to make decisions about our bodies and our healthcare? That question isn't theoretical, it's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients care, especially from those with low incomes. Together we have the power to protect and expand affordable care. Visit plannedparenthood.org defend and make a gift today.

[Dahlia Lithwick]

This is Amicus, Slate's podcast about the courts, the law, and the Supreme Court. I'm Dahlia Lithwaite.

[Mark Joseph Stern]

And I'm Mark Joseph Stern. Welcome to episode three of by the People, a project from Slate about the true deciders of of what the Constitution means, the American people, and how they might reclaim that power from an out of control Supreme Court.

[Dahlia Lithwick]

You can be part of the conversation by following the series here on Amicus and by going to slate.com bythepeople to read a remarkable collection of essays outlining both our predicament and some possible solutions

[Mark Joseph Stern]

on this week's show. Two steps forward, one step back.

[Mark Solomon]

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 mattered, why we wanted to marry.

[Mark Joseph Stern]

I hereby pronounce you partners for life, legally married.

[Supreme Court Announcer / Narrator]

This morning, the Supreme Court recognized that the Constitution guarantees marriage equality.

[Dahlia Lithwick]

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 indentured to the man who likely raped her mother. Henry Turner is a vital piece of constitutional memory that, like so many of the stories of the Second, 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.

[Mark Joseph Stern]

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 West. Justice Anthony Kennedy wrote the 5 to 4 ruling, joined by the court's liberals.

[Dahlia Lithwick]

Eleven short years ago, a decade long campaign for marriage equality came to fruition in the Supreme Court's decision in Obergefell.

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

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.

[Mark Joseph Stern]

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 hour of self delusion.

[Dahlia Lithwick]

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.

[Mark Joseph Stern]

The story about to hear is about a group of dedicated citizens who knew the Constitution specifically its guarantees of liberty and equality, had to include them. And they started out on this journey with some pretty small steps.

[Mark Solomon]

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 Joseph Stern]

Mark Solomon was one of the key architects of the marriage equality movement.

[Mark Solomon]

I first got involved in 2001 in Massachusetts, which was right when Glad and Mary Bonauto filed the marriage lawsuit in Massachusetts to enable same sex couples to marry.

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

Mark Solomon's book Winning the Inside Story of how same sex couples took on the politicians and Pundits in One was named a best book of 2014 by Slate, which called it, quote, the definitive political history of marriage equality. Who wrote that?

[Mark Joseph Stern]

I wrote that. I covered this story closely. And Mark's work was so, so central to it. As national campaign director, Freedom to Marry, Mark really drove the equal marriage movement's political strategy for years. But back in 2001, things were not looking great.

[Mark Solomon]

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. So, 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.

[Mark Joseph Stern]

So within your own community facing a ton of skepticism, outside the community facing outright hostility?

[Mark Solomon]

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, were running from this issue as quickly as they could.

[Dahlia Lithwick]

Why did they start with Massachusetts? Super Catholic? Coming off a backlash in neighboring Vermont,

[Mark Joseph Stern]

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

[Mark Solomon]

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.

[Mark Joseph Stern]

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 no 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.

[Mark Solomon]

That was the theory.

[Mark Joseph Stern]

In November 2003, the Massachusetts Supreme Judicial Court ruled 4 to 3 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.

[Supreme Court Announcer / Narrator]

Good evening.

[Mark Solomon]

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 do us part. David, I commit to love you until death do us part.

[Mark Joseph Stern]

And now, by the power vested in

[Officiant / Monica Reinagle]

me by the Commonwealth of Massachusetts, I

[Mark Joseph Stern]

hereby pronounce you partners for life, legally married.

[Officiant / Monica Reinagle]

Amen.

[Mark Joseph Stern]

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.

[Mark Solomon]

We had a huge mountain to overcome in Massachusetts. Not only were President Bush and Governor Romney, like dead set, opposed, Bush announced federal constitutional amendments to undo the marriage ruling in Massachusetts. 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, who 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 President, the House speaker, they were all opposed. So we were really out on our own.

[Dahlia Lithwick]

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.

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

And the win in Massachusetts meant that same sex marriage was no longer a constitutional hypothetical.

[Mark Joseph Stern]

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.

[Mark Solomon]

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 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. And 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 postcards and say, oh my gosh, I never thought this 80 year old woman who goes to church every day with 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 were like, is this just a political statement? I'd Never really met a gay person in a longstanding relationship. 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. Shifted the balance of power.

[Mark Joseph Stern]

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.

[Mark Solomon]

Yeah, I remember we did that once with. With. With a guy, and we. His. 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. In the process. So, you know, it was all sorts of.

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Oh, my God.

[Mark Solomon]

There were. That was the only one of those. But he was really pissed at us.

[Mark Joseph Stern]

Yeah, I understand. But all for the greater cause, right?

[Mark Solomon]

Yes.

[Dahlia Lithwick]

Oh, that must have been awful for them.

[Mark Joseph Stern]

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.

[Mark Solomon]

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 was make our case that we belong, that we are part of this American story.

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

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, keir Starmer offered Britain nothing. And if you click left, you'll see headlines lamenting that Keir Starmer is, quote, the latest casualty of the Downing street meat grinder. The Nobel Peace center called Ground News an excellent way to stay informed, avoid echo chambers and expand your worldview. Here's how to get started. Go to groundnews.comac to get 40% off their Unlimited Access Vantage subscription. That's groundnews.comac and you'll get 40% off the Vantage subscription. Whether you subscribe yourself or send it as a gift. Make sure to use our link so that they know that we sent you. That's groundnews.com ac

[Planned Parenthood Sponsor]

this episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic who gets to make decisions about our bodies and our health care? That question isn't theoretical. It's playing out. Right now, the Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients care, especially from those with low incomes. Together we have the power to protect and expand affordable care. Visit plannedparenthood.org defend and make a gift today.

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[Dahlia Lithwick]

Prices and participation may vary. You're listening to episode three 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.

[Mark Joseph Stern]

Yes. In the 2004 November election, voters in 11 states were presented with ballot proposals to ban marriage equality.

[Mark Solomon]

We lost 30 in a row. So literally 30 in a row. It was, you know, over. Over multiple cycles.

[Mark Joseph Stern]

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?

[Mark Solomon]

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, 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 loss 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.

[Dahlia Lithwick]

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 foot off the gas.

[Mark Joseph Stern]

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.

[Mark Solomon]

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, 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.

[Mark Joseph Stern]

President Barack Obama was part of that equal marriage two step.

[Mark Solomon]

He said he backed civil unions and he was evolving, he evolved for a very long time on the issue.

[Supreme Court Announcer / Narrator]

Now, 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, my feelings about this are constantly evolving. I struggle with this.

[Dahlia Lithwick]

President Obama only ultimately came out with a full throated support for equal marriage in May 2012. What changed?

[Mark Joseph Stern]

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.

[Mark Solomon]

The lesson of New York was that you have to do all the hearts and minds 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 gonna 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 state 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 New York 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 where it's due. 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. And 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.

[Mark Joseph Stern]

I love that. After all the gauzy hearts and minds, it still here comes down to hardball politics, including taking out your alleged allies who don't toe 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.

[Mark Solomon]

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.

[Mark Joseph Stern]

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.

[Supreme Court Announcer / Narrator]

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.

[Mark Joseph Stern]

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.

[Mark Solomon]

It was courts, it was legislatures, and then it was at the ballot. It 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. You know, 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, you know, 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.

[Mark Joseph Stern]

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.

[Mark Solomon]

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.

[Mark Joseph Stern]

That has been ruled unconstitutional. Hollingsworth clears the way for marriage equality to resume in California. By virtue of the power and authority

[Dahlia Lithwick]

vested in me by the state of California, I now declare you spouses for life.

[Mark Joseph Stern]

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?

[Mark Solomon]

So we didn't expect necessarily all of the lawsuits that came after the Windsor. 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 sex couples to marry. But there was a whole rash of federal suits and we were winning. I remember early on, some of the 10th 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 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 and other places, organizing huge, expensive campaigns in places like Ohio and Michigan to undo their constitutional bans. But the lawsuits just swept the country.

[Mark Joseph Stern]

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.

[Planned Parenthood Sponsor]

This episode is presented by Planned Parenthood Federation of America. Many of the most important legal fights in this country come down to a basic who gets to make decisions about our bodies and our healthcare? That question isn't theoretical. It's playing out right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients care, especially from those with low incomes. Together we have the power to protect and expand affordable care. Visit plannedparenthood.org defend and make a gift today.

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[Dahlia Lithwick]

welcome back to Amicus and episode three of by the People. Two steps forward, one step back.

[Mark Joseph Stern]

That takes us straight to Obergefell. 2015. The Supreme Court strikes down all remaining bans on same sex marriage.

[Supreme Court Announcer / Narrator]

This morning, the Supreme Court recognized that the Constitution guarantees marriage equality. And it's profound.

[Mark Solomon]

The 5 to 4 vote in many

[Supreme Court Announcer / Narrator]

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.

[Dahlia Lithwick]

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 Kennedy, saying that the right to marriage is a fundamental and gays and lesbians cannot be excluded from that right.

[Supreme Court Announcer / Narrator]

In doing so, they've reaffirmed that all Americans are entitled to the equal protection of the law.

[Mark Joseph Stern]

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. 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 Kennedy's opinion. It's almost written more like this exists and it's time for us to acknowledge it.

[Mark Solomon]

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, you know, Obergefell, and I'm quoting, you know, may long have seemed 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 movements that brought same sex couples to the fore. 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.

[Dahlia Lithwick]

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 water mark for judicial supremacy.

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

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.

[Mark Joseph Stern]

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 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.

[Dahlia Lithwick]

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.

[Mark Joseph Stern]

So that is true, but there really is some shared DNA here. Reeva 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. You know, 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 super majority of the public had already concluded that the Constitution really did grant an individual right to bear arms.

[Dahlia Lithwick]

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 trust trap. It's the trap we've been in for at least the past 40 years since, as we 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 on popular understanding to shore up its legitimacy.

[Mark Joseph Stern]

So all the polling in 2008 when Heller comes out shows that a super majority of Americans support a law abiding citizen's 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.

[Dahlia Lithwick]

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, settled, the Court said so, doesn't actually protect you from the backlash.

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

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.

[Mark Joseph Stern]

I'm remembering something Mark Solomon said.

[Mark Solomon]

We knew that to win marriage nationwide, which was always our goal, we needed to win a critical mass of states and a critical mass of public support in order to for one of the national actors, in our case the Supreme Court, to rule our way.

[Mark Joseph Stern]

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

[Dahlia Lithwick]

it feels like we're in this new place of only taking steps backward. And those steps are dictated by an anti democratic super majority at the Supreme Court that has crowned itself. The law can 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.

[Mark Joseph Stern]

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?

[Mark Solomon]

I never think anything is set in stone. So I don't like that Justice Thomas invited a challenge. And we are, you know, I'm still at it, working with my close colleagues like Mary Bonado 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 opponents main argument 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 there's a different Supreme Court, it's a much more conservative court. They wouldn't have, I believe, decided Obergefell in the way that the Kennedy led decision came out. But I also believe that the courts reflect society and they don't want 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 Joseph Stern]

Mark, thank you so much.

[Mark Solomon]

Happy to do it. Thanks for covering it so well. You've done an amazing job over the last long, long time covering the story.

[Dahlia Lithwick]

Next week in the final installment of by the People on Amicus, the public

[Mark Solomon]

saying, for example, with the no Kings rallies, we do not think that unaccountable executive power is part of our political system.

[Mark Joseph Stern]

Jamelle Bouie joins us to help map out what taking back ownership of the Constitution might look like for you and me today and tomorrow.

[Mark Solomon]

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.

[Dahlia Lithwick]

That's all for this episode, but Amicus plus members, please do join us in the smokeless cigar bar for this week's jam packed bonus episode.

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

We're also talking about the bumps in the rain 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.

[Mark Joseph Stern]

And we are sharing a really stirring piece of reporting from our colleague Shirin Ali that is a reminder of the very real stakes in this conversation we're having through our by the People series.

[Dahlia Lithwick]

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.

[Mark Joseph Stern]

Visit slate.comamicusplus to hear that conversation and to become a beloved plusketeer by joining you. Support our Work Work like this by the People series.

[Dahlia Lithwick]

The time and the resources we have devoted to this project is all thanks to our plus subscribers. Members can also read all the pieces in the series like like Marks on Obergefell and Shirin's on the Civil Rights martyrs and the bra without ever hitting a paywall again. Go to slate.comamicus plus to join.

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

Thank you so much for listening and you thank 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 [e-mail] youm can also find [e-mail]

[Mark Joseph Stern]

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.

[Dahlia Lithwick]

Sara Burningham is Amicus Supervising Producer. Our producer is Sophie Sommer. We had invaluable life saving help again this week from Senior Supervising Producer Joel Meyer. Hilary 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.

[Planned Parenthood Sponsor]

This episode is presented by Planned Parenthood Federation of America America. Many of the most important legal fights in this country come down to a basic who gets to make decisions about our bodies and our healthcare? That question isn't theoretical, it's playing out. Right now. The Trump administration's backers in Congress are trying to permanently defund Planned Parenthood, an effort to shut down health centers and block patients care, especially from those with low incomes. Together we have the power to protect and expand affordable care care. Visit plannedparenthood.org defend and make a Gift today

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