Marriage Equality Advocacy from the Trenches

Abstract

James Esseks [JE]: Hi everybody. Mary and thought that since we work together all the time, we would go back and forth to talk about the evolution of the marriage equality movement. We're going to try and cover a lot, and it's going to be a bit of a mad dash, but we will do our best to make it comprehensible. We've both been doing this for a long time but Mary has really been doing this for a long time. Mary, you've been gay for pay for how many years? Mary Bonauto [MB|: Twenty-four later this month. JE: And I'm only at thirteen, so I'm a youngster here. Mary actually is one of the people who created the modern Freedom to Marry movement. And so, in our tour through the marriage equality movement, we will begin with the early days and talk about how this got started. What's the plan, is there a plan, was there a plan? We'll then turn to the Defense of Marriage Act, (1) why it's a problem, what the plan was for getting rid of it, and then the Windsor (2) decision and a little bit about Windsor implementation. Then we're going to talk about the current kind of crazy landscape that we're in at the moment. And how we may get to the Freedom to Marry in all fifty states. And then, if there is time, a little bit on the religious liberty, religious exemptions, license to discriminate aspect of the issue as it is showing up in the LGBT rights space. MB: Although we were asked to focus on litigation, it's hard to focus exclusively on litigation because ideally you will first create a climate of receptivity for litigation. Both the public and the courts need a problem to be defined in both head and heart terms so they can understand the litigation is responding to and resolving real problems. So litigation works with public education, and whatever else may be happening in the culture and legislative branch. So in this movement--like there was Roe (3) in the abortion rights context--there is Hawaii in the marriage context as a cultural turning point. Everyone was extremely surprised in 1993 when the Hawaii Supreme Court suggested that the state's marriage restriction was discriminatory based on sex and remanded to the trial court for the state to try to demonstrate its compelling interest in discriminating based on sex. (4) But even as Congress passed the Defense of Marriage Act shortly after the decision, so, so many good things came out of the case. In particular, the Hawaii case sparked a national conversation about the freedom to marry, government discrimination against gay people's families, and why marriage matters. But will just say that guess, as you know, the old person in the room-- JE: The experienced person. MB: One overlooked point of Hawaii is that it was driven by the grassroots. Constituent pressure, if you will, has been important in advancing marriage all along. Even on my first week on the job at GLAD in March of 1990, was approached by a couple from western Massachusetts who had been together ten years and wanted to get married. And said, I really understand, and of course you're totally right, but no. Not now. And had those conversations many times with many people, because being right is not enough to get to a win, or to sustain a win. Timing matters. On marriage, there was so much to do in order to move the culture and the law to a place where people could even meaningfully engage with the issues. Long before Hawaii, couples inspired by the Supreme Court's 1967 ruling in Loving v. Virginia filed marriage cases as well. (5) Nancy Polikoff and David Chambers have described the incredulous tone of the judicial opinions in those 1970s cases--each upholding the exclusion--as though a man was seeking the right to get pregnant. (6) Twenty years later, when Hawaii was the focus, marriage for same-sex couples was still an oxymoron, considered absurd, and most mainstream newspapers referred to marriage in quotes. We might have been claiming the language of marriage, but to most it was just impossible and unimaginable. …