by Evan Wolfson
September 11, 2001
Originally published in The Advocate (via Google Books archive)
Just as the far right is launching another attack against the freedom to marry — this time in the form of a proposed constitutional amendment — marriage-rights expert Evan Wolfson outlines the blueprint for a new campaign to secure equal marriage rights for all lesbians and gay men.
Why marriage and why now?
We can win the freedom to marry. Possibly within five years. This bold declaration, which I hope becomes a rallying cry, raises many questions – not the least of which are: Why marriage and why now? Who’s “we”? How do we do it? And, five years?
Before I tackle those questions, though, let’s savor the possibilities: We can seize the terms of the debate, tell our diverse stories, engage the nongay persuadable public, enlist allies, work the courts and the legislatures in several states, and achieve a legal breakthrough within five years. I’m talking about not just any legal breakthrough but an actual change in the law of at least one state, ending discrimination in civil marriage and permitting same-sex couples to lawfully wed. This won’t just be a change in the law either; it will be a change in society. For if we do it right, the struggle to win the freedom to marry will bring much more along the way. It is not just the attainment but the engagement that will move us furthest and fastest.
But first, let me tackle those questions.
Why marriage and why now?
Marriage is many things in our society. It is an important choice that belongs to couples in love. In fact, many people consider their choice of partner the most important choice they ever make. Civil marriage is also a legal gateway to a vast array of protections, responsibilities, and benefits (most of which cannot be replicated in any other way). These include access to health care and medical decision making for your partner and your children; parenting and immigration rights; inheritance, taxation, Social Security, and other government benefits; rules for ending a relationship while protecting both parties; and the simple ability to pool resources to buy or transfer property without adverse tax treatment.
After passing the federal antimarriage law marketed as the “Defense of Marriage Act” in 1996, the government cataloged more than 1,049 ways in which married people are accorded special status under law. Add in the state-level protections and the intangible and tangible privileges marriage brings in private life, and that makes more than 1,049 ways in which lesbians and gay couples are ripped off.
Marriage is a known commodity, permitting couples to travel without playing “now you’re legally next of kin; now you’re legally not.” It is a social statement, describing and defining one’s relationships and place in society. It is also a personal statement of commitment that receives public support and can help achieve common aspirations for stability and structure in life. It has spiritual significance for many of us and familial significance for nearly all of us.
Finally, marriage is the vocabulary in which nongay people talk of love, family, dedication, self-sacrifice, and stages of life. It is the vocabulary of love, equality, and inclusion. While recognizing that marriage should not be the sole criterion for benefits and support, nor the only family form worthy of respect, the vast majority of lesbians and gay men want the freedom to marry for the same mix of reasons as nongay people.
In the past several years we have turned an idea virtually no one talked about into a reality waiting to happen. A 1999 NBC News/Wall Street Journal poll reported that two thirds of all Americans have come to believe that gay people will win the freedom to marry. And we know that if they believe it will happen, on some level they are learning to live with it – the positive precondition to our achieving it. This extraordinary new receptivity comes only eight years after the Hawaii supreme court first launched this national discussion.
We can call the first chapter of our ongoing freedom to marry movement the “Hawaii/Vermont” chapter. Its successes were enormous. Through court cases in both states we showed that there is no good reason for sex discrimination in civil marriage, just as there was no good reason for race discrimination in civil marriage a generation ago.
We also redefined the national debate over lesbian and gay inclusion, fostering recognition that marriage is central to any discussion about lesbian and gay equality. This was dramatically demonstrated by last year’s vice presidential debate between Dick Cheney and Joe Lieberman, both of whom answered a question about gay love by talking about their evolving (and increasingly supportive) positions on marriage.
The Hawaii/Vermont chapter moved the center of our country to the “all but marriage” position. Whereas before the marriage debate, the nongay majority did not support any kind of partner recognition for same-sex couples, now we see majority support for health benefits, inheritance, and other kinds of recognition of our family relationships. That is a product of talking about our lives in the vocabulary of full equality and a happy consequence of asking nongay people to hear our stories.
In June 2000 an Associated Press poll put opposition to our freedom to marry at only 51% ; the latest Gallup Poll puts it at 52%. A recent survey shows college freshmen strongly supporting our freedom to marry as well. My latest favorite poll, however, came in New York magazine early this year. It reported that 58% of nongay New Yorkers support civil marriage for gay people, and that 92% (!) of gay people agree.
All of this is occurring, of course, against a backdrop of international advances. It has been only 12 years since Denmark became the first country to create “gay marriage” (not marriage itself but a parallel marital status for same-sex couples). This year the Netherlands became the first to dispense with separate and unequal formulas and allow same-sex couples to lawfully wed. Other European nations, and possibly the European Union as a whole, will certainly follow suit in the years to come. Meanwhile, Canada — which already has recognized same-sex couples’ legal entitlement to “all but marriage” — is also in the midst of a campaign aimed at securing the freedom to marry.
Finally, the Hawaii/Vermont chapter brought us “gay marriage” — though not yet marriage itself — here at home. With the passage of the civil union law, Vermont created a parallel nonmarriage marital status for same-sex couples, upon which we can build.
It is worth remembering that we didn’t get civil unions by asking for civil unions. We got this separate and unequal status by pressing for the freedom to marry. In Vermont local activists, New England’s Gay and Lesbian Advocates and Defenders, and our allies mounted a campaign of public outreach, enlisting clergy, speaking at county fairs, and then folding in litigation — groundwork that led to victory through sustained engagement. With these successes as our new starting point, it’s time for us to open the next chapter in our movement.
What about asking for less?
Civil unions are a tremendous step forward, but they are not good enough. They do not provide equal benefits and they leave couples and those who deal with them exposed to legal uncertainty. What we want is not separate and unequal “gay marriage” but marriage itself, the full range of choice and protections available to our nongay sisters and brothers. We do ourselves no favor when we enter this civil rights discussion bargaining against ourselves.
The attempt not to talk about marriage, to have a discussion without using the m word, increasingly fails. The fierce (and ongoing) right-wing backlash against civil unions in Vermont (and the right wing’s use of marriage and civil unions as a club against us in campaigns in other states) shows that we do not gain much ground by calling it something else or running away from the debate. Our opponents are against us no matter what we seek. When we fight merely not to be beaten up in the streets, they are against us. If we were asking for oxygen, they would be against us. Our opponents will redefine everything we seek as “a slippery slope to gay marriage” and attack us with equal ferocity, no matter what.
If we are going to have to face opposition and work to engage the middle no matter what we strive for, why not ask for all we deserve? Remember, it is no coincidence that the two states in which we have the most expansive protections and recognition for gay people are the two in which we framed the discussion in terms of full equality.
Who’s “we,” and what is the new approach?
It is time for a peacetime campaign to win the freedom to marry. We cannot win equality by focusing just on one court case or the next legislative battle — or by lurching from crisis to crisis.
Rather, like every other successful civil rights movement, we must see our struggle as long-term and must set affirmative goals, marshal sustained strategies and concerted efforts, and enlist new allies and new resources.
More than ever, then, “we” means key organizations in key battleground states working in partnership; a national resource center doing what is best done centrally; talented and dedicated individuals who bring new resources and new focus to the table; existing and new national groups prioritizing real work on marriage; and most critically, nongay allies.
Clearly we can — and must — motivate nongay allies to become vocal advocates. Fortunately, we have good models for doing so. For instance, we can examine and replicate how the parents of students creating gay-straight alliances — or the parents, funders, and others who have taken action against Boy Scouts discrimination — have defined their relation to our civil rights and created a public responsibility and role for themselves.
Since there is no marriage without engagement, we must make enhanced efforts to have our allies speak out in a variety of forums — everything from advertorials to interfaith dialogues to TV talk shows such as Oprah and Larry King Live — describing to other nongay Americans why it’s important for them to support the freedom to marry for gay and lesbian couples.
We also can enlist diverse allies among other constituencies (religious, labor, child welfare, youth, seniors, business, etc.) and seek ways to work together with overlapping communities such as women and people of color. For example, we can find common ground through joint projects to deal with problems we all face with immigration discrimination or access to health care.
Imagine, for example, a collaboration between the National Center for Lesbian Rights and La Raza or the Japanese American Citizens League, in which each group agreed to send collective information on immigration concerns to its mailing lists and then cohost a program that included gay concerns, spokespeople, and stories.
The good news here is that nongay people live in the world of marriage, and in many cases they will be more responsive to our call to join this work. As the growing list of signatories on the Marriage Resolution (www.lambdalegal.org) attests, many of them have already. We must give nongay opinion leaders at the national level as well as local clergy or organizations the impetus and framework for engaging the public on our freedom to marry.
How do we do it?
Our opponents have announced yet another antigay campaign – an effort to promote a federal constitutional amendment to permanently exclude lesbians and gay men from all family protections, including marriage. Outrageous as this latest assault is, there are lessons we can learn from them: the power of a campaign over time, the importance of framing the terms of the debate, the need to present diverse and compelling stories and allies, the ability to make attainable what at one time seemed radical. The good news here is that their attack offers us an occasion to take our case to the people. We should not shy away.
I envision a sustained effort to win the freedom to marry, centering on focused work to attain a legal breakthrough in one or more states, together with sophisticated national work to create a climate of receptivity. The elements of this sustained effort would be serious multimethodology, multiyear freedom-to-marry efforts under way in the most promising breakthrough states. The partners in these efforts would strategically mount litigation or legislative measures to end discrimination in civil marriage, but the specific vehicles would take place within the context of our undertaking enhanced public education and outreach work.
development of a clear and sophisticated understanding of what demographics we need to reach in order to firm up our 30%-35% base and soften up and move the 15%-20% of the public who are movable.
deployment of resources, trainings, messages, messengers, and vehicles to help nongay and gay partners in different states and constituencies communicate transformative information and enlist additional nongay support.
For example, we need to communicate resonant portrayals that show how the exclusion of gay people from marriage has a real and detrimental impact on children, families, and society; how withholding marriage does injustice and cruel harm to lesbian and gay seniors; how the United States is lagging behind other countries; how separate and unequal treatment is wrong; and why the government should not interfere with same-sex couples who choose to marry and share fully and equally in the rights, responsibilities, and commitment of civil marriage.
Let’s relate the stories of seniors and how they are denied the social safety net that comes with marriage. Let’s talk about the California schoolteacher who died after 30 wonderful years teaching kids, leaving her partner unable to share her pension or Social Security death benefits — or even remain in the home they shared. Or we can discuss how, if the teacher had survived and sought to move with her partner into an assisted-living facility, they might have found themselves forbidden to live together.
Marriage discrimination wreaks real harms — kids teased because they don’t have a “real family,” a nonbiological parent told he or she cannot pick up an ailing child at the school because of not being legally related, couples unable to transfer income or property between them.
Let’s trace the experiences — good and bad — of the 2,000-plus couples that have joined in civil union in Vermont. Let’s pick up on reports such as the 1999 Stanford University study that showed how denying marriage to same-sex couples hurts kids. Let’s describe the cruel sundering of binational couples, the partners turned away at hospitals, the callous dismissal of a lifetime of love in cases such as Sharon Smith’s claim for wrongful death when her partner was killed in a horrible dog mauling. Let’s also convey the strengths and vibrancy of many gay and lesbian couples such as my former clients Richard and Ron, who just celebrated their 31st anniversary, or my friends Jamie and Mark, who gathered friends and family from around the country to celebrate their wedding in a lovely church ceremony. Let’s make sure that America hears the voice of Jamie’s father, describing his growth in acceptance and wish that society could now do the same. Our job is to develop and deploy a strategic mix of messages that tell the diverse and real stories of our lives and love in a vocabulary of equality that reaches the middle.
Why five years?
Obviously no one can promise this breakthrough on any specific timetable, so of course I mean that this is doable within five years, but the victory may happen later … or sooner. We had victory within our reach in Hawaii years ago, only to see it blocked there because of our failure to act swiftly and strongly enough. But our opponents know the importance of sticking with the fight, and so must we. We must be prepared to ride the ups and downs. Our leaders and national organizations need to understand the lessons of the previous marriage battles as well as the lessons we should have learned from the battles over the military, federal civil rights legislation, and the Boy Scouts. Among those lessons: We cannot expect to win equality in one short burst of attention or one wartime campaign alone. Rather, we must lay the groundwork and not just try to cherry-pick the easy wins or “flavor of the month” issues.
Another lesson is that it is a mistake to define our cultural engagement and the work of our civil rights movement by what seems currently realistic or attainable in the legislatures (or the courts). For one thing, our ability to predict is often limited. I have seen us win battle after battle in state legislatures, even when our lobbyists and some of our groups said it couldn’t be done; likewise, courts sometimes surprise us. More broadly, the larger work we must do (the multimethodology peacetime campaign) should not be reduced to the bills. We do the groundwork in order to build up ammo and allies for eventual legislative battles, and in order to create the climate of receptivity to prepare and embolden the courts. Our job, of course, is not to make it easy for politicians or judges (even friendly ones) to do what they want; rather, it is to make it easier for politicians to do what we want – to do justice. We should not dumb-down our demand for equality, for possibilities open up not in some linear, tidy way but in spurts of creeping and leaping. Through our work and by aiming high, we make room for luck.
What do we want to build now?
Last year marked the end of an extraordinarily successful chapter in the history of our civil rights movement, from the attainment of “gay marriage” to the nongay response against the Boy Scouts’ discrimination. Now, in this next chapter, each of us must ask what we want to create for the young gay and nongay people watching our work and finding their voice.
To me the answer is clear: Let us build not a building or a halfway house or a better ghetto but rather a movement unafraid to seek what we and all others deserve, unafraid to reach beyond itself to talk with our nongay fellow Americans. Shimmering within our reach is a legal structure of respect, inclusion, equality, and enlarged possibilities, including the freedom to marry. Let us build the new approach, partnership, tools, and entities that can reach the middle and bring it all home.
Evan Wolfson is Executive Director of Freedom to Marry, a gay and non-gay partnership working to win marriage equality nationwide. Before founding Freedom to Marry, Mr. Wolfson served as marriage project director for Lambda Legal Defense & Education Fund, was co-counsel in the historic Hawaii marriage case, Baehr v. Miike, and participated in numerous gay rights and HIV/AIDS cases. Citing his national leadership on marriage equality and his appearance before the U.S. Supreme Court in Boy Scouts of America v. James Dale, the National Law Journal named Mr. Wolfson one of the 100 most influential lawyers in America.