The Battle to Say “I Do.”

A civil rights lawyer on the right of gay couples to marry

Photo: Jeff Sheng

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For more than 20 years, attorney Evan Wolfson has been in the trenches of gay rights advocacy, leading the charge to end the exclusion of gay couples from marriage. When Hawaii’s landmark case Baehr v. Miike launched the current debate about gay marriage in the mid-1990s, Wolfson was there, serving as co-counsel for the plaintiffs. When gay Eagle Scout James Dale protested the membership rules of the Boy Scouts of America in 2000, Wolfson argued for his 19-year-old client all the way to the chambers of the United States Supreme Court. In the weeks before Massachusetts began issuing marriage licenses to same-sex couples on May 17, 2004, Time named him one of “the 100 most influential people in the world.”

As member of Lambda Legal, the nation’s leading GLBT legal advocacy group, for 12 years, Wolfson authored the group’s amicus briefs for the 1984 Oklahoma case that struck down a law that fired teachers who advocated gay rights and for the 1986 Georgia sodomy case Bowers v. Hardwick. At a time when 40 states have statutes explicitly defining marriage as between a man and a woman and only a handful of states offer any level of domestic partnership benefits, Wolfson’s litigation has supported equal health benefits for the partners of city employees in New York, adoption by gay parents, and the service of gay military personnel.

Wolfson is currently the executive director of Freedom to Marry, a group he launched in 2003 that works to achieve marriage equality nationwide. To accomplish this goal, he supports a two-pronged approach of public education and legal work. His book Why Marriage Matters: America, Equality, and Gay People’s Right to Marry, recently released in paperback, demonstrates this strategy by combining an easy to follow narrative about marriage in the United States with compelling legal and anecdotal accounts of what’s at stake. “All Americans—gay and non-gay—have a stake in the same struggle for liberty and equality that once again is being fought out in the arena of marriage,” says Wolfson. “And the government has not shown a good reason for continuing this discriminatory exclusion.”

Wolfson recently talked about his book and the continuing momentum of the marriage equality movement with Mother Jones.

Mother Jones: Word choice is very important in your book. You present the case for “ending same-sex couples’ exclusion from marriage” as opposed to “legalizing gay marriage.” Why do you avoid using the concept of gay marriage?

Evan Wolfson: Because we’re not fighting for gay marriage. We’re fighting for the same freedom to marry that other Americans have and treasure—with the same rules, the same responsibilities, the same commitment, and the same respect—not something new, different, and lesser. It’s important that people understand that this is not about creating something new and different called gay marriage. This is about allowing qualified committed couples who have made a personal commitment to one another in life and who are doing the hard work of marriage already—who are caring for one another, raising kids, worrying about their aging parents, paying taxes—to have the equal legal commitment to match. That equal legal commitment in our country is called marriage.

MJ: Who is the primary audience of Why Marriage Matters?

EW: The book is really intended as a tool for people to engage in this important civil rights conversation, and I wrote it for two audiences. The first was people who already support allowing gay people to marry but want to have in one place the best arguments—a little bit of law, a little bit of history, some really compelling stories, and even some of what the opposition is saying—so that they too can make the case for ending this discrimination. I also wrote it for the group of people that I think of as the reachable-but-not-yet-reached-middle. I don’t want to dismiss those people, nor do I want to dismiss their concerns. Instead, the book is organized with each chapter responding to a question that I know those decent, fair-minded, but not-yet-with-us people are asking. I believe we have good answers for those people, who have questions, who are uncomfortable, but who are capable of being persuaded, and I really wanted to lay it out for them in a conversational tone.

MJ: Could you outline the basic case for marriage equality that you describe in your book?

EW: To put it in a nutshell, the case for ending discrimination in marriage is twofold: Government should not be putting obstacles in the path of people seeking to care for one another, and gay people have the same mix of reasons for wanting the freedom to marry and needing the protections and responsibilities of marriage as non-gay people do. There is no good reason for denying these couples the rules, the responsibilities, and the respect of marriage. Allowing these families to be stronger is not going to take anything away from anybody else.

I also make the point that marriage has always been a battleground on which larger questions of what kind of country America is going to be have been contested. This struggle is really about what kind of country are we going to have: Are we going to have a country that respects personal freedom and the ability of individuals to pursue happiness? Or is it a country where the government dictates to people how they should live and whom they should be with? Is it a country that respects religious freedom and the proper separation of church and state when it comes to a legal institution such as marriage? Or is it a country where one group’s religious views are imposed on others through the weapon of the government?

MJ: What are some of the other examples of the battlefield of marriage?

EW: Today it’s about gay people, but in recent chapters of American history, these same large questions were fought over in at least four major battles—ending the government’s interference in couples’ ability to decide whether to divorce, ending the government’s interference in such personal decisions as whether to use contraception, ending race restrictions on who could marry whom, and ending subordination of women in marriage. Of course, those other struggles are not over. The same opponents of gay people’s equality and freedom to marry today are the opponents of choice, the opponents of separation of church and state, the opponents of women’s equality, the opponents of civil rights generally. And they are making many of the same arguments.

MJ: You mention in your book that each of those struggles had success in as much as people have been able to imagine a worldview to accompany the changing reality on the ground. What do we need to do to imagine the successes of gay marriages and gay families?

EW: First of all we have to point to the successes. Gay people now are getting legally married. It’s only been a year that we could actually say that in the United States. We now have thousands of legally married couples, and they’re doing great. They haven’t taken anything away from anyone else. The people in Massachusetts—the first state and only state so far in which gay people have been allowed to marry—according to every poll now, support marriage for gay people because they’ve seen it firsthand. The actual reality has proven to them that families are helped and no one is hurt.

We also need to help people calmly think through this and not be stampeded into hostile or discriminatory actions. Those of us who do support gay people’s equal inclusion in American life have to be talking about this and explaining why marriage matters, why it matters to each one of us that our coworkers, our friends, our family members, our politicians, care about this. We cannot just assume that people are either unreachable or that just because they’re mildly liberal, they totally get it.

MJ: How persuasive do you think the book is for people who haven’t made up their minds about marriage for gay people or who are outright against it?

EW: I talk in the book about how America is really divided in thirds. A third of the country already supports gay people’s equality and inclusion in public life, including the freedom to marry. A third of country adamantly opposes not just marriage for gay people but gay people. They’re against homosexuality. They think we’re ill. They think we’re immoral. They think we should have no place in public life, no legal protection, large or small—from marriage right through bereavement leave. But there’s also the middle third, the reachable-but-not-yet-reached, and those are the people that we really need to be talking about—without getting hung up on the fact that there may be as many as a third who are largely unreachable, in the short term at least. That middle third is reachable but has not yet been given the information or the time to absorb it so they can rise to fairness. There are answers to their concerns, and that’s what the book is intended to lay out.

MJ: Will the people who have that gut-level revulsion to not only accepting marriage equality but “homosexual lifestyles” ever be reached?

EW: Ever, of course, is a long time, but they will not be reached in the next several years, the timeframe that I think is most significant. That is why Why Marriage Matters is aimed at persuading not the die-hard anti-gay segment of the population, but the uncomfortable, the reachable-but-not-reached. I would not get hung up trying to persuade the most adamant of opponents. I would instead focus my energy and use the book as a tool to engage the fair-minded people who have some concerns but who are not blind with hatred or prejudice.

MJ: Your book notes that acceptance of the verdict in Brown v. Board of Education really took decades. Won’t the public’s acceptance of same-sex marriage take just as long?


EW: When the Supreme Court struck down race discrimination in marriage in 1967—in the best-named case ever, Loving v. Virginia—the polls showed 70 percent of the American people opposed interracial marriage. In fact it was not until 1992 that a majority of the American people expressed a majority acceptance for interracial marriage. From this, we learn that courts, leaders, and civil rights advances don’t wait for the polls in our system. We don’t have to have majority support for some states, some courts, some politicians to stand up and do the right thing. Full majority public acceptance of a major civil rights change—whether it be ending race discrimination or some of the other things I’ve talked about—may indeed come after the legal changes, and after by quite some time.

This movement to end discrimination in marriage is actually moving faster [than previous movements], and the poll numbers are better than they were in a comparable point in history. The public today, depending on the poll, depending on how the question is asked, shows support for ending discrimination in marriage between 30-some percent up to the high 40s.

MJ: Yet the governor of Massachusetts says he supports a constitutional amendment against marriage equality, and in the 2004 elections 11 states passed constitutional amendments banning same-sex marriage—

EW: No, no, no. Most of those 11 states were not just banning marriage, they passed sweeping anti-gay measures. They deny any level of protection to gay families, large or small. Virtually all of those states are solidly Republican, have never led the country in any civil rights struggle, and would have passed pretty much any anti-gay measure that had been put on the ballot. In this case, it happened to be marriage and family relationships. This was a right-wing wave of attacks.

In this stampede against gay people wrapped in the hot button of marriage, the right wing was smuggling in their sweeping anti-gay, anti-unmarried heterosexual agenda. In Ohio, for example, two courts have now ruled that the sweeping discriminatory measure there block the issuance of domestic violence orders of protection to anybody other than a married couple. So women living with abusive men that they’re not married to can’t get an order of protection because of this measure. Again, that was part of the right-wing agenda because they’re agenda is not just anti-gay and anti-marriage, it’s anti-choice, anti-civil rights, anti-separation of church and state, and in fact antediluvian.

MJ: In light of all this, where do you see examples of hope?

EW: Despite these cruel attacks, we won marriage in 2004. Couples are now legally married, and fair-minded non-gay people are now getting a chance to see that. That is the key to undoing this discrimination. If we as a society believe that in general having couples marry and giving them the opportunities to strengthen their relationships and provide better for their kids is a good thing for non-gay people, why wouldn’t it be good for gay people? 2004 was a year of strong success for gay people and for our movement, although as in any civil rights movement, it’s never going to be smooth, easy, and linear.

Ultimately, it’s going to turn on people having a chance to see it for themselves that the sky doesn’t fall and having more young people, who overwhelmingly support ending this discrimination, come into their own voice. It’s because the right wing does not trust the next generation that they are running around the country trying to cement discrimination into the state and federal constitutions. They wouldn’t need a constitutional amendment if they believed they were winning the discussions. It’s because they know they are actually losing and have no good arguments that they’re resorting to raw power and trying to tie the hands of every state and all future generations now, rather than allowing the next generation to think it through.

MJ: How do you convince someone that the sky is not going to fall? What does it take to convince them that it won’t?

EW: For some people it takes talking it through, common sense, and the kinds of information and reasoning that I have in the book. For other people it’s going to take time and reality. They’re going to look at Massachusetts, and they’re going to say, “Hey, wait a minute, the state that allows gay marriage has the lowest divorce rate in the country, and kids are doing great.” The more people that have a chance to see that, talk about it, and witness that, the more they’re going to move in our direction. And again, it’s the right wing’s desire not to allow people to see that. That is why they’re trying to stampede these discriminatory measures through now before people have had a chance to think it through and see it with their own eyes.

MJ: What states do you see moving forward right now?

EW: Just since the election, two states have added nondiscrimination statutes to their books, prohibiting discrimination on the basis of sexual orientation. Connecticut has passed a major step toward marriage equality through creation of a civil union status. We have other states that hopefully this year will either move in the direction of marriage or partnership recognition. The civil rights movement is moving forward, even in the face of a ferocious right-wing attack and against the assault led by the most deliberately divisive president in America’s history. By the way I have to add that even that president, even as he speaks out of one side of his mouth supporting an unprecedented discriminatory amendment against some American citizens, also said that he could live with civil union.

MJ: When?

EW: He said that last year. It’s on our website. Despite his trying to take it away with one hand, he felt compelled to say, whether sincere or insincere, that he could live with civil union—a legal status itself that did not even exist five years ago and that came into being as a product of our fight for the freedom to marry. So he and his pollsters clearly can read where the country is headed, whether or not they like it.

MJ: Where do you see the United States on this issue in 10 years?

EW: I think there’s no question that the United States will have moved further in the direction of marriage equality. We will see the patchwork continuing in which some states have ended discrimination in marriage and gay couples are getting married, and we will see many states with discriminatory measures. Meanwhile, the United States will be falling further and further behind most of the other industrialized democracies in the world. You do a tour of the globe, and you see countries that have ended discrimination in marriage or are moving in the direction of ending discrimination in marriage, have created partnership, have created nondiscrimination laws, and have ended restrictions on service in the military. And the United States, which holds itself out to be a beacon of freedom in the world is actually lagging far behind most of the countries whose values we like to think we share.

Michael Beckel is an editorial intern at Mother Jones.


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