OVER the last thirty years, Evan Wolfson has been everywhere fighting the good fight for GLBT equality. In 2000, he argued the Boy Scouts of America v. Dale case in front of the U.S. Supreme Court. In 2003, he founded Freedom to Marry, a national organization dedicated to winning marriage equality in all fifty states. His book Why Marriage Matters: America, Equality, and Gay People’s Right to Marry (2004) offered a passionate and deftly argued case for the expansion of civil marriage rights to include millions of lesbian and gay Americans. His commitment to this cause goes back to his 1983 (!) thesis at Harvard Law School, which laid out the case for fighting for the freedom to marry and how to win. In 2004, he was named to the “Time 100” list of the “most influential people in the world,” and, in 2011, Newsweek dubbed him “the godfather of gay marriage.”
I feel this struggle for our marriage rights keenly because Alistair McCartney, my Australian partner of almost twenty years, has been denied one of those crucial marriage rights that allowed only straight folks to sponsor their spouses for immigration. I first met Evan in 1997 in Bozeman, Montana, where Evan and I were the dog-and-pony show for Montana Pride—at a time when Alistair had just had his visa refused in Australia. I was in a crisis and Evan leapt into action to examine our very limited options. These kinds of difficulties persisted until the Defense of Marriage Act was overturned on June 26, 2013. Alistair and I were married in New York City that very afternoon; and Alistair received his Green Card in the mail in early November.
Evan clearly knows that the battle for marriage is very personal and impacts our emotional and practical well-being in the most profound ways. We met to talk at this tremendous moment of progress while sitting on cardboard cartons in the empty, soon-to-be-renovated West Village apartment that he shares with his husband Cheng He. This seemed the perfect place to engage in a conversation with Evan Wolfson about the extraordinary times we are living through as we bring the freedom to marry to all Americans.
— Tim Miller
Tim Miller: Evan, it’s great to be here in your apartment, ready to be renovated for your life with your husband Cheng at a giant, juicy, historical moment with the DOMA overturn on June 26 of 2013. And on this particular day in October, sitting here in the tri-state area where, at 12:01 tonight in New Jersey, gay people will begin to marry. And it’s happening at the ten-year anniversary of the Goodridge decision in Massachusetts. What was going on for you at that crucial moment in 2003 when the decision came down, and then when marriages began in May of 2004?
Evan Wolfson: Well, obviously, Goodridge was something we’d been working on for a very, very long time. I will never forget where I was when I got the Goodridge decision, because I actually had the honor of being on the phone with Mary Bonauto, who wasn’t at a computer, if I remember. I was able to pull it up on my screen, so I got to be the one to tell Mary that she had just won this enormous victory.
We were both very careful to get it right because, of course, in Vermont we had this decision that we had won together where, on the one hand we won more than we’d ever won, but the court stopped short of ordering marriage itself. So Mary, being the super-cautious, thorough, champion lawyer that we all know her to be, really was very, very careful. But I skimmed it through and was finally able to say, “This is it. We won.”
What happened in Goodridge is that the ruling gave the legislature essentially six months to prepare for marriage, which meant that marriages would begin on May 17, 2004, the fiftieth anniversary of Brown v. Board of Education, certainly a very karmically appropriate and beautiful day. In that six-month period, however, the legislature tried to block it, and basically did a request to the court to clarify whether civil union à la Vermont would be enough to satisfy the court’s command. So that required a further round of briefing and litigation, and another decision, which came out in early 2004, saying, “No, equal means equal. Marriage is marriage.”
Of course, it had been years and years—decades—in the making. The Hawaii case, which I co-counseled along with non-gay attorney Dan Foley, had resulted in the world’s first-ever ruling that gay people should have the freedom to marry. We won that at the end of the trial in December of 1996. But even that was not the first milestone. That came a couple of decades before, when gay couples had challenged our exclusion from marriage in the immediate aftermath of Stonewall. By 1971, there were at least three major cases making their way up through courts, all of which were rubber-stamped away.
The Hawaii case was the first time a court had ever said to the government, “If you want to deny gay people the freedom to marry, you at least have to show a good reason.” We were able to show in trial, for the first time ever, that there was no good reason to deny marriage to gay couples—only to see that victory snatched away by a political attack, much as we saw ten years later in California.
So after Goodridge came through, to see the legislature try a political end-run, but to have a court stand firm and then see the marriage licenses actually issued—that was a real turning point. And that’s what we celebrate in this tenth anniversary of Goodridge. First, the actual breakthrough win that we had worked so hard to achieve, and second, our work to defend it and sustain it and build upon it.
TM: I guess it goes back to Tony Sullivan and his partner getting a marriage license in Boulder, Colorado, way back in 1975. Social change is built out of all these small increments that seemed insignificant at the time.
EW: In any movement, there are periods of creeping and periods of leaping. There are periods when people are doing good work, people have the vision, people are speaking out, people are laying the bricks in the edifice, but the time is not yet there and the critical mass hasn’t been reached. And it seems like it’s either hopeless or taking forever, or going backwards. And then there are periods of leaping, where it does come together and the spark ignites and the times are ready. It’s really important to have a vision and to stick with it and to know that we can achieve things. And that’s what the arc of the freedom to marry movement again demonstrates.
TM: Tell us about that. We’ve been in a leaping moment for a good two years now.
EW: And we still have some creeping to do.
TM: But we have some creeping to do. Tell me about Freedom to Marry’s “Roadmap to Victory” project.
EW: Everyone can now see and feel the irrefutable momentum that we have won, and we can count the progress almost now by the minute. It used to be by the decade, then by the year, then sometimes by the month. Now it seems like every day brings another victory. You and I are sitting here as we just learned that the New Jersey Supreme Court in a stunning unanimous ruling is going to refuse to hold up the issuance of marriage licenses. So the freedom to marry will begin in New Jersey tomorrow, something we’ve been working years to achieve.
The good news is that not only do we have the momentum, we have the winning strategy—the very same strategy that has brought us to this moment of progress and momentum. The same strategy that brought us here is the strategy that’s going to bring it home. It’s not a secret strategy; we have it on our freedomtomarry.org website; it’s called the “Roadmap to Victory.” The strategy says that we’re going to win the freedom to marry nationwide when the U.S. Supreme Court brings the country to national resolution. And so the strategy asks, “What do we need to do to make that happen?” The answer, drawing from the lessons of history and other social justice and civil rights movements, is that we have to build a critical mass of states and a critical mass of public support.
So the three-track strategy of work we’ve long laid out for the movement and pursued with success and now must keep doing is: first, to win more hearts and minds, creating the public opinion climate, including in the South; second, to win more states; and third, to finish the job of ending the federal discrimination that the Supreme Court did much to dismantle in the DOMA ruling. If we do these three things, we will be creating the climate that will say to the Supreme Court that the time is ready, the country is ready, and they can take the next freedom to marry case and do the right thing. It’s up to the Court whether it’s going to take a case and when. What we want to do is encourage the justices to take a case and make sure that when they rule, we get the full national victory that we are seeking.
There are thirty-some marriage cases now bubbling out there—all part of the momentum, the excitement. People want this. People are eager. Lawyers are jumping in. Couples are stepping up. We don’t know which case, if any of these current cases, is going to be the one that the Court takes. What we want to make sure, though, is when it does take a case, it does the right thing. And the way to do that is not by sitting and watching, and it’s not just by racing to the Supreme Court. It’s by creating the climate around the court, winning more states, winning more hearts and minds, continuing and finishing the federal work.
TM: Wow, it’s such an amazing moment. People are starting to take chances in places like New Mexico and in Pennsylvania, refusing to collaborate with this injustice—city clerks and district attorneys starting to issue marriage licenses when there’s a good chance that they may not be legal until a court steps in. It is chaotic, but they potentially create the conditions for those legal actions to move forward.
EW: They’re certainly part of the ferment of activity that you see in a movement where people try to do something. What I would encourage is that we do the things that we know are the ones that really work. This is a movement, not the military. Things happen; there’s energy, there’s excitement. But there are some things we know are the things that have worked and that will work and we don’t have to cast about trying to find a new flavor-of-the-month. We need to keep doing the things that we know work. And the Number One thing that works is something you’ve done so profoundly over the years, Tim, and that you’ve celebrated in others, which is telling our stories. It’s talking about who we are, our love, our commitment, and our aspirations to our neighbors, our friends, our coworkers, and our lawmakers.
It’s that work of telling our personal stories and helping people understand who gay people are and why marriage matters, connecting the dots to marriage. That’s how we have won. It’s not just because a lawyer filed a case. Look, I’m a lawyer. If it were as simple as having smart lawyers writing good briefs and filing cases, we would have been done forty years ago. But it takes much more. It takes each of us doing our part to talk to people in our lives in ever increasing concentric circles, growing outward, and making sure that happens not just in New York but also in Alabama, thereby creating the climate for decision-makers, including judges and justices, to do the right thing.
I think the main point to focus on as an activist—this is something I’ve brought to my years of work on this—is that there are things you can’t control, and you shouldn’t spend a lot of time worrying about them. What we need to worry about is the things we can control. We can try to persuade people to use strategy and judgment, but ultimately cannot control whether some lawyer is going to want to bring a case or not. What we can control is that, when a case gets to the Supreme Court, we’ve built the climate that maximizes the chances of winning. And that’s what people should focus on now.
TM: Get people to tell their story, to engage the subject with families over Thanksgiving dinner, allowing ourselves to imagine our own value of our love, our humanity.
EW: Exactly right. Look, as a lawyer who’s had the honor of arguing before the Supreme Court, one of the main things I’ve been saying for twenty years is this is too important to be left to the lawyers. We are not going to win this just because some lawyer—or, at this point, thirty-some lawyers—file cases. Important as that is as part of the work, victory will come when all of us do our part on Freedom to Marry’s three-track strategy of winning more states, persuading more people to support us, and bringing in new and surprising and diverse messengers.
TM: For example, there is this amazing project in North Carolina and in the whole Southeast to get people to tell their stories.
EW: Yes, there’s the Campaign for Southern Equality that Freedom to Marry is working with, and with whom we’re going to be launching Southerners for the Freedom to Marry to have a sustained campaign of people telling their stories, just as we launched Mayors for the Freedom to Marry and Young Conservatives for the Freedom to Marry and Familia es Familia. All of these programs are about helping to enlist more diverse and compelling voices into this discussion to talk about American values and love and commitment—and the Golden Rule of treating others as you would want to be treated—in personal, emotional, and authentic ways.
Everyone can reach different groups of people, and we want to bring them in to expand our majority. When we did the Hawaii case, and when Congress was passing the anti-gay, so-called Defense of Marriage Act, seventeen years ago, public opinion was at 27 percent in favor of the freedom to marry. We’ve more than doubled that to about 55 percent now. And that’s not only because we’ve had the generational momentum of young people coming of age in this conversation, though that’s been an important driver. It’s also because we’ve changed people’s minds. For example, just a few weeks ago, I saw a poll in Georgia showing that for the first time we have a plurality in favor of the freedom to marry, 48 percent to 43 percent (with sixteen percent saying they’ve changed their minds in the past several years of our campaign).
TM: I’ve encountered, as I know you have—and not only in privileged academic environments—a kind of old-school critique of marriage equality with jargon around “heteronormativity” and the question, “Why are we focusing so much energy on marriage?” How do you respond when that kind of critique is brought forward?
EW: I do think that people who make that critique now, without heeding everything that’s happened over the last twenty years—and not just in the U.S. but now in eighteen countries on five continents—are really not addressing the reality of what marriage brings to real people’s lives and what it means as an engine of larger change. I mean, we have won more nondiscrimination laws, more gender identity protections, more safe schools, more visibility and attention to seniors in our movement during the “marriage chapter” than we did in the decades before, when we were running away from marriage or trying to avoid it. Marriage is an engine. It’s a vocabulary in which we have a larger conversation that transforms people’s understanding of who we are. No one is saying, of course, that any one thing, even as big as marriage is, is all we want. We want it all. But marriage has been an extraordinarily effective engine of advancement, much more so than anything else, with the possible exception of AIDS and HIV, which shattered the silence about our lives and exposed our vulnerability, and need, and courage, and determination.
Another point I would make is that I think many people who were dead-set against the freedom to marry or doing marriage work have now attended their loved ones’ or friends’ weddings, or have gotten married themselves, and they have all been struck and transformed by the power and resonance of marriage, its vocabulary, its ability to bring us together with non-gay people who, after all, are voting and judging and deciding our legal fate.
The final point is that all prejudice, all discrimination, is wrong, and we all should fight it on all fronts, not just on any one of them. But the worst discrimination is that practiced by the government against a group of people. When the government does it, as in the denial of the freedom to marry, it’s a formal, official stigma directed against a group of people, and that’s intolerable.
TM: Since we’re talking about our personal stories, and our stories are important, I should mention that you and I are sitting here in your soon-to-be-renovated apartment.
EW: Well, “soon”—God willing. Hopefully, by the time we’re reading this in print, it will have been renovated. This is the apartment I moved into seventeen years ago in August of 1996 on the eve of the Hawaii trial. I literally dumped my stuff in here, flew to Hawaii, not having the time to renovate or deal with anything in order to argue the trial that ultimately resulted in this first-ever ruling in favor of the freedom to marry, launching this ongoing global movement. Meanwhile, Congress was enacting the so-called Defense of Marriage Act, to which this year we dealt a mortal blow. And now I’m finally back in the apartment and—yet another big change since 1996—happily not alone, now with a husband, having won the freedom to marry in New York. And so we’re finally able to contemplate the marriage-testing (!) challenge of redoing the apartment, now our home.
TM: Meanwhile, my husband Alistair and I are currently experiencing a dramatic change with the overturn of DOMA, and we were able to begin the process of getting a Green Card for Alistair, which is certainly the horse I’ve had in the race for a long time. Is there anything else that you’d like to touch upon?
EW: You and I are recording this in October of 2013. By the time of the Goodridge anniversary in May 2014, I hope we’ll be winning still more states, on top of the four we’ve recently won, and those, like Illinois and Hawaii, we are still hoping to win in 2013. By 2014, we’ll be turning to states that are going to be an even heavier lift, including those we need to win at the ballot box—
TM: Like Oregon.
EW: Like Oregon in 2014, hopefully. And like a mix of states that Freedom to Marry has pointed to on our website as states we hope to win by the end of 2016: Ohio, Michigan, Colorado, Nevada, and Arizona, and others—states where we’re really looking to lay the groundwork now in order to win later.
TM: What kind of timetable do you actually imagine to create those conditions?
EW: First of all, I believe we can achieve Freedom to Marry’s goal of marriage nationwide within a matter of years, not decades. But I always hate the word inevitability because that implies that it just waltzed in by itself.
TM: It doesn’t just happen by itself in Texas.
EW: Exactly. We have to do it. We don’t have to win within the four corners of every state. We have to win enough states, a critical mass, so we get the Supreme Court to finish the job. And that we can really do within a matter of just a few years, if we stick with the strategy and do (and fund!) the work. On our website, we have the Roadmap to Victory laying out targets for what that critical mass is. What we’ve said is that by the end of 2016 we want to make sure that we have a majority of Americans living in a freedom-to-marry state, up from the one-third that we have now. We want to make sure that we have sixty-plus percent support nationwide for the freedom to marry, up from the 55 percent that we have now. And we want to finish the job of bringing federal protections even to people who live in states that discriminate, so that we give people that safety net of marriage, that respect for their marriages, at least at the federal level. By doing that, we will create more room for improvement at the local level. And meanwhile, people in every state will also be contributing to the national climate and momentum that will enable the engine states and the court cases to get there and bring this victory to everyone across the country. Full victory nationwide is attainable within a matter of years if we keep doing the work, follow the strategy, and keep our eyes on the prize. We want it all, and this is how to get it.
Tim Miller’s solo performances have been presented all over the world. He is the author of the books Shirts & Skin, Body Blows, and 1001 Beds.
