SINCE 1990, Mary Bonauto has been the Civil Rights Project Director at GLAD—Gay & Lesbian Advocates and Defenders, which serves the New England states—where she has crafted sophisticated impact litigation for the GLBT community and people with hiv/aids. As co-counsel in Baker v. State (1999), Bonauto persuaded the Supreme Court of Vermont that denying marriage benefits to same-sex couples violated that state’s constitution. Political realities at the time dictated a remedy that yielded the nation’s first civil union law but stopped short of granting gay couples the right to marry. Four years later, the Massachusetts Supreme Judicial Court (SJC) drew political fire from across the nation when, without seeking the legislature’s approval, it fashioned a purely legal remedy to Bonauto’s claims that denying marriage to same-sex couples violated the law.
Last November, in Goodridge et al. v. Department of Public Health, by a four-to-three vote the SJC gave the Commonwealth 180 days to begin issuing licenses to same-sex couples wanting to be married. The ruling took effect on May 17 of this year. At the same time, the state legislature took a step toward moving the issue from the courts to the ballot box when it voted in favor of a constitutional amendment that would reserve marriage to opposite-sex couples.
Jo Ann Citron, whose legal analysis of the marriage issue has occasionally appeared in these pages, interviewed Bonauto by telephone in early July.
Jo Ann Citron: You’ve been quoted as saying that the marriage issue was literally on your desk when you came to GLAD in 1990. That was the year in which the plaintiffs in the Hawaii marriage case applied for licenses, beginning the litigation now known as Baehr v. Lewin. You waited almost thirteen years before filing a similar case here in Massachusetts, with notably different results. What changed between 1990 and 2003 that made Goodridge possible?
Mary Bonauto: Internally to the gay community, what changed was the increased understanding about the legal vulnerability of our families. AIDS continued to ravage our community, and in 1990 people were still unprepared with health care proxies and powers of attorney that could have helped open the hospital doors where our partners were suffering. Many people still did not have wills, and for those that did, will contests were a fear and sometimes a reality. The Kowalski case finally concluded in the early 1990’s with the understanding that Sharon and Karen were a family of affinity and deserved respect. What was uppermost in people’s minds, though, was that for many painful years, they had been barred from seeing each other by Sharon’s family. On a happier note, the baby boom was underway and many more people were becoming parents by birth, adoption, or surrogacy. All of these things increased our visibility to the non-gay world. As closet doors flew open, people began to see us both as individuals and in the context of loving partnerships.
JAC: Were you surprised by anything the court said in the Goodridge opinion?
MB: I was surprised by the amount of heart in the decision. The court noted how the government’s denial of marriage rights imposes “a deep and scarring hardship.” It used raw and irrefutable logic to show the failure of the conventional reasons for denying marriage. It saw the plaintiffs and same-sex couples as real people. It was an example of a court living up to its best in our system of government. Justice Ginsburg said that the history of our constitution is the extension of constitutional rights and protections to those once ignored or excluded. Goodridge recognized the humanity of GLBT people and, by ending marriage discrimination, lived up to the principle that we don’t have two classes of citizens in this country. They repeatedly rejected the concept of second-class citizenship.
JAC: Do you think that Goodridge is going to have an impact on the presidential election later this year?
MB: There has never been a civil rights movement that’s been conveniently timed for elected officials. I think it remains to be seen what effect it will have on the presidential election. I think many people believe that President Bush has overplayed his hand. You can read stories from all over the country about how people who you’d expect to be animated about the amendment, are not. They don’t feel that this issue personally affects them. I really believe that this is a moving target, and that people are really struggling with the fairness issues. I know the polling about as well as anyone does, and I know that about a third of the people don’t want anything to do with gay people, and that’s sad. Another third really believe that part of the American covenant is fairness from the government and equality, which means that people shouldn’t be denied basic rights. Those people are struggling with this issue. We need them to come out on the fairness side, and I think that’s simply a question of time, and making sure we show them stories of real people who have made commitments to one another and are being denied rights by the government.
JAC: Do you think Goodridge will have an impact on what happens in Massachusetts legislative races in November?
MB: Absolutely, it’s going to play a role. Everybody’s trying to make it an issue. Governor Mitt Romney’s trying to make it an issue. And certainly people on our side are making it an issue. We are determined to re-elect our friends and defeat our opponents.
JAC: Any thoughts about how the composition of the legislature will change, and how that will affect the vote at next year’s constitutional convention?
MB: I don’t think it’s just a question of what position they take. I think it’s a question of how hard both sides work in those districts. If we get out and highlight the records of these legislators in standing against discrimination and representing all the families in their constituency—again, tell those real stories, which is what the issue really boils down to, which is people and families who want their government to treat them equally and fairly, and here’s why—that all makes a difference. I don’t think in the abstract that this issue helps or hurts. It’s really going to depend on how people use it and explain it to the voters in those districts.
JAC: Any thoughts about how next year’s constitutional convention might differ from the one we had this year?
MB: We lost by five votes. They needed 101 votes; they obtained 105. If we had taken those five votes from them, we would not be facing even the threat of an amendment in 2006. Bear in mind that some people are still in the early stages of the learning curve on this issue. We’ve now had same-sex marriage in Massachusetts for a short period of time. The six-month period between the Goodridge decision and the implementation of that decision on May 17 gave a lot of people a chance to grow and to see what the real issue is all about: real families who have real problems in their day-to-day lives. I think that learning curve has really been accelerated by the fact that now gay people are married, and the doomsayers have egg on their faces. They have nothing they can point to in terms of how anyone has been harmed. Even Governor Romney has conceded that these marriages cause no harm to the Commonwealth. When he testified to the subcommittee on the constitution in late June, he speculated again about the impact on children and so on, but he couldn’t say how these marriages hurt the institution or hurt other people’s marriages. He conceded that they didn’t affect other people’s marriages at all.
In the end, I don’t know how excited voters are going to get about taking rights away from people. I feel, as Martin Luther King said in his letter from the Birmingham jail, that “time is not neutral.” Time can be used for good or it can be used for ill. As Dr. King feared, sometimes the opponents of equality are more effective at using time than we are. I think it’s a mistake to be complacent, and I think it’s appropriate to be hopeful. But that means we have to use our time effectively. It means doing the same kinds of things that we did when we were bringing votes over to our side on this issue and making our case to the public. It’s that same message I was talking about a moment ago. We’re talking about people who have made commitments to each other, who have taken responsibility for each other, and who have been denied marriage rights by the government. And that’s what that group in the middle needs to hear about. They need to understand that it’s the firefighter from Hanover, the teacher from Williamstown, who are hurt by discrimination.
JAC: Were you expecting that the now infamous 1913 Massachusetts law prohibiting certain out-of-state people from marrying here would be as important as it has become?
MB: We knew it was going to be an issue. We knew the law was on the books, and that it hadn’t been enforced in years. We assumed it could become a political football, and that’s precisely what happened. If we had had a different administration, it’s possible they would have said there’s no reason to revive this law simply for the purpose of discriminating against gay and lesbian couples. But we have the administration that we have.
JAC: When this law was originally proposed, its purpose was to create a certain uniformity in marriage laws from state to state, especially where interracial marriage was concerned. It did not achieve its purpose then, and it remains on the books in a very few states. What are the legal arguments you’re making against the 1913 law?
MB: There are several, but I think the easiest one is that this is part of Goodridge itself, because Goodridge said that denying marriage to same-sex couples is irrational and void; you can’t do it. And what is the effect of this law? In the Governor’s mind, it is to deny marriage across the board to gay and lesbian people from out of state. Yes, they’re nonresidents, but the answer to that is, So what? The constitution of Massachusetts doesn’t distinguish between residents and non-residents when it comes to constitutional protections. If you’re from Rhode Island and you get pulled over on a highway in Massachusetts for speeding, and you think you’ve been improperly searched by the state police, you can bring a claim under the Massachusetts constitution for a violation of your rights against unreasonable search and seizure. You don’t need to be a resident to claim those protections, and the same thing is true in the equality area.
JAC: What will their argument be?
MB: Their argument will be that the constitution is only for residents. Also, they’ll argue that Massachusetts law is really out of sync with other states’ laws, and Massachusetts has some interest in not offending other states, or respecting the laws of other states. I don’t know why Massachusetts really has that interest, frankly, especially when respecting that interest means ignoring our own constitution.
JAC: People are fond of saying that marriage confers over 1,000 benefits, but most of these are federal and are clearly precluded by DOMA [Defense of Marriage Act]. The harder cases will be those where DOMA conflicts with state law. What are some conflicts that GLAD has identified in this area?
MB: It’s important just to remember that federal DOMA, as extensive as it is, still only regulates the definition of “marriage” and “spouse.” I’ve heard some people suggest that it affects any sort of system in Massachusetts, but I think that’s flat wrong. DOMA is bad, but it doesn’t touch every single area of federal law or every area where state law somehow piggybacks on federal law.
Some things can be managed. Take the area of taxes, for example. Massachusetts is going to have to do what Vermont did. In fact, the Department of Revenue issued a technical information report suggesting this procedure: You’re going to fill out your state return as married, you’re going to fill out your federal return as single, but your state return requires you to put in certain numbers from your federal return. You’ll fill out a shadow federal return as though you’re married, use those married numbers from your federal return to put on your married state return. You’ll never file the married federal return, but you’ll use the numbers from it on your state return. So there are ways to manage this.
My basic take on federal DOMA is that we don’t have these rights right now, and we should have them. DOMA should be repealed—or taken down one way or another. But I hope people are thinking strategically about this. It’s an incredibly political environment in which we’re operating. We really need to go one step at a time here.
JAC: Let’s stick with DOMA for just another moment. ERISA [Employee Retirement Income Security Act] is the mammoth federal law that regulates pensions and other employment benefits. Some of these benefits are creatures of federal law, and so will be ruled by DOMA, but others are creatures of state law. Do you think that employers will have to sue the federal government to get guidance on how DOMA interacts with ERISA and the requirements imposed by Goodridge?
MB: I think the really huge thing that’s on the horizon right now is that there are a number of areas in the law that are sort of fuzzy, where people are really confused. Employers and institutions are confused about what to do, and what must they do. So, for example, in the area of employee benefits, a number of the largest firms in this state have put out advice oriented toward management saying essentially, You make the decision as to what you want to do and then just announce it, and that’s that. And sometimes that’s right, they do have that discretion, but sometimes they don’t. I think it’s incumbent upon us to explain to employers why it’s in their interest to extend these benefits and not to create two classes of marriage. That’s just one example. There are other areas where people are really confused about what to do. In some cases they don’t need to be confused. It’s just a question of trying to wrap their minds around the fact that now you have to treat gay and lesbian married couples just like other married couples.
But there are other areas where it’s confusing because of the overlay of federal DOMA. Some people look at federal DOMA as essentially preempting state law. But I think it’s very rare that federal DOMA is going to preempt state law. People get confused because they think federal law always reigns supreme. There are a lot of what we’re calling implementation issues right now, making sure that things get off on the right foot. Outside Massachusetts I know there will be a certain amount of disrespect of same-sex marriages, but also a great deal of respect. My favorite story so far is—you know, I live in Maine, which is also a DOMA state that makes marriages of same-sex couples void. There’s a woman from Maine who went to Massachusetts to marry her partner, and when she came back she got honeymoon leave, she got her spouse on insurance, and she got other benefits. So here we are in a state with a DOMA, and what’s the reaction? A very human one. That’s what I think people overlook. They think, what’s going to be litigated, where are the lawsuits coming from? From my perspective, when people get married, they get married because they love each other. They need protection; they’re not looking for a lawsuit. And the reaction very often of businesses and other institutions is the common sense one of respecting the marriage. I’m finding that encouraging.
There was an article in the Boston Herald recently about a national survey of 200 corporations (conducted by AON Corporation). Only a third said they would respect marriages from Massachusetts, forty percent say they would not, and the rest were undecided. On the one hand, that’s discouraging because the number respecting them should be 100 percent. On the other hand, my perspective is that this is a good start. This is such a dynamic situation. It’s important not to get overly optimistic or overly discouraged at any juncture.
The Governor’s whole pitch is chaos. He wants chaos. He’s trying to portray this as chaos. And the more he says that, the more he can help create it on his own. It’s part of our job to make this process as smooth as it can be, as clear and understandable as it can be. But I agree that it’s a little confusing for Massachusetts to have one set of rules and the federal government saying we’re going to ignore that.
JAC: You must be aware of the critique from the Left: that marriage is a regressive and coercive institution, one that relies upon gender stereotypes, that has disadvantaged women, and that creates a class of insiders and outsiders. How do you respond to that portion of the gay community that views gay marriage as a conservative solution to inequality and a domestication of the spirit of Stonewall?
MB: I guess what I would just say is that our position at GLAD is that it’s not an either-or choice. What we do is try to ensure formal equality under the law. And right now, as the SJC put it, marriage is a mass of social and legal institutions, and the benefits it provides affect every area of life and death. I don’t think we’re in a position to ignore that. We should focus on formal equality, making sure that gay people have the exact same choices available to them as non-gay people. In addition, it’s certainly important for us to focus on the fact that not all people are going to choose marriage, and that some people cannot choose marriage. That’s why we continue to have a docket that focuses on ways to protect families that aren’t bound together by birth or by marriage or by adoption.
We have a case before the SJC [Supreme Judicial Court] here in Massachusetts in which we’re trying to hold a lesbian responsible for child support when she essentially bailed during her partner’s pregnancy. What connection is there as a legal matter between these two women? None. What connection is there between the woman who bailed and the child? None, not even a personal relationship. What we’re trying to do is to think about function and commitment in all kinds of ways that don’t necessarily match up with the big three legal categories of birth, marriage, and adoption. We continue to work on domestic partnership; we always will. We continue to pose the right questions to policymakers about the diversity of families that exist and how the government can support those families in all of their diversity. Why do all benefits need to be tied to marriage, for example? I just don’t think it’s either-or. This massive denial of rights just has to be addressed head-on.
JAC: Well, here’s a head-on question then. One response to the inequality of the traditional marriage system is to allow couples to be married regardless of their sexual orientation, which is what Goodridge accomplished. Another would be to divorce marital status from material benefits altogether and make marriage a plain contract between two people that doesn’t confer any special, government-sanctioned status. Why hasn’t the gay community pursued the latter approach?
MB: That’s a great question. I know for a fact that it’s not attainable right now. I think we have to go through a period where gay people ask the government to stop denying them marriage rights. It’s because of that effort that people are even now raising questions about why there are so many protections tied exclusively to marriage. I’m not sitting around trying to dismantle marriage, but I feel that there are lots of legitimate policy questions to raise. There was a proposal in Massachusetts from a rep from Holliston. He was proposing that we abolish marriage from this point forward. It would then be a religious institution only, and everyone else would be in a civil union. Virginia Buckingham wrote a letter to the Boston Herald saying, “Well, excuse me, I don’t happen to be of the same religious faith as my husband. We can’t get a religious solemnization of our wedding, and I don’t want to have a civil union.” And the reason is that right now, quite appropriately, she views it as a second-class status. If you got to a point where there really was no distinction between marriage and civil union, it didn’t convey stigma or disrespect, it was an institution that was recognized across the country and across the world, so that you didn’t jeopardize your family’s protection when you crossed a state border or an international border, then that would be fine. But that’s not where we are. Right now it’s a fair question to pose, but it’s not a practical solution at this time.
Again, I don’t think it’s either-or, and I don’t think this is about changing who gay people are. I think it’s about making more choices available to gay people and ending discrimination by the government. I recognize that some of the rhetoric around marriage and families can be offensive, because, for example, I know lots of single parents who do a great job. A lot of the rhetoric of necessity in this struggle focuses on how important it is to have two parents regardless of the sexual orientation of the parents. I recognize that a lot of the way that this issue is playing out can sound offensive. But at least we’re trying to get to the place where we have formal equality, and people can raise questions from there.
JAC: Studies show that some fifty percent of marriages end in divorce. Do you have any reason to think that the statistics will be any different for gay couples?
MB: This is speculative. My wild guess is that at least for a lot of the marriages that are happening in the near future, there will be a lower divorce rate because so many of the people who are marrying now have already been together for decades and have weathered many struggles over time. So it’s essentially solemnizing something that’s been a fact for a very long time. My suspicion is that, at least for the near future, there’s enormous pent-up demand that’s being addressed.
JAC: Do you have a long-term vision of how long it will take and how the process might play out on a national scale?
MB: I’ve been trying to get to that point. I can’t say it’s going to be five or fifteen years. I actually feel that right now we’re sort of at a tipping point. If we all use our time effectively and well, then we really can be at a point, sooner than we imagine, where the government will no longer deny these rights, and that this is a choice and a commitment that’s equally available to gay and non-gay people. I think we can do it, but it’s really up to us.
Jo Ann Citron practices law with the firm Altman & Citron and is a member of the Women’s Studies Department at Wellesley College.