Was there any point at which a genuine political opportunity existed to build a coalition to support a pro-liberty gay-rights policy? Maybe there was, and maybe there wasn’t. But from the very outset of the same-sex marriage debate, LGBT activists chose to pursue a maximalist litigation strategy deliberately modeled on the civil rights movement’s drive to destroy Jim Crow. This strategy by its nature de-emphasized liberty and mutual tolerance in favor of a winner-take-all battle for control of the law.

Adoption of this model necessarily required suppressing any distinction between identity and behavior: while a pro-liberty argument creates space for differences in behavior, a pro-equality argument requires that the discussion focus solely on immutable characteristics. The “Jim Crow” strategy focused on litigation far more than persuasion, with activists using equal-protection arguments to gain judicial recognition of same-sex marriages beginning in Hawaii and Vermont in the 1990s, while shunning approaches to legislatures, bitterly opposing any effort to have the issue settled by popular referenda, and seeking to have any contrary legislation or referenda nullified by the courts.

Given the political terrain from the early 1990s through the mid-2000s, this was a coldly rational calculation, but also a risky one. Rational, because public opinion at large strongly opposed recognizing same-sex marriages, while the legal profession and thus the courts was mostly in favor, so the best results were likely to come from appealing to lawyers while freezing out voters. Risky, because voter backlashes against the legal system tend to be a blunt instrument on those rare occasions when the sleeping giant of the electorate is aroused, and an inherently confrontational litigation strategy could provoke that.