It wasn’t a likely first step to becoming a vanguard in the fight for marriage equality for gays and lesbians. But when Evan Wolfson wrote his third year law school paper on same-sex marriage in 1983, that’s exactly the path he was taking. It was a bit ahead of its time.
“The paper argued that you can’t say you’re for equality and then acquiesce in our exclusion from the central legal and social institution of this and virtually every other society,” says Wolfson, 47. “At that point, of course, no state had marriage, no country had marriage, nobody by and large was talking about it in a sustained way.”
But things have changed a lot in two decades. This week marked an historic turn as Massachusetts began issuing marriage licenses to gay and lesbian couples. It was a culmination of legal and political efforts that have been pursued by many over the past ten years. Wolfson has been one of the most prominent of the advocates for marriage equality, both in his years as the executive director of the Lambda Legal Defense Fund, and now in his current work as executive director of Freedom to Marry.
For the former Peace Corps volunteer who once helped build the second largest library in the West Africa’s Togo, a commitment to social justice and equality under law seem to be an inherent part of his person. It’s that commitment that informed his work not only on marriage, but also his work on the Supreme Court case Boy Scouts of America v. James Dale. He was recently named by Time magazine one of the “100 most influential people in the world.”
In the days leading up to the historic moment in Massachusetts, Wolfson spoke about how marriage equality got to where it is today and why it is vital for the community to fight harder than ever to make sure the gains we’ve won are never taken away.
METRO WEEKLY: What is it about marriage as an issue that has kept you on the forefront of it for so long?
EVAN WOLFSON: There are several answers to that, one being that I haven’t only worked on marriage. While at Lambda, I did work on the range of lesbian and gay rights and HIV/AIDS. Even at the height of my doing the marriage work, I had another case that I had kept since I had begun it, and which had demanding time requirements — that was the Boy Scouts case.
But having said that, right from the start when I came to Lambda I really felt like we needed to be talking about marriage, and at least laying the groundwork to claim what is rightfully ours: full equality. There was a lot of division within Lambda and all the movement groups as to whether to pursue this. And then Hawaii happened. I believed right away that on May 5, 1993, the world changed with the decision of the Hawaii Supreme Court that marriage discrimination is unconstitutional and unless the state can show a reason for it, the government has to stop discriminating. It was the first time we’d gotten a court to take seriously our claim for how this denial [of marriage rights] hurt families and helped no one. I immediately realized that this was a new era. With Lambda’s assent I started going around the country and spreading the word that we need to get involved, that we have the opportunity to make the case and we need to make the case [for marriage].
MW: Back around 1994 I covered a community meeting that you spoke at, and you said something to the effect that marriage would be a tsunami across the country compared to the military issue. Have things gone as quickly as you expected they would at the time?
WOLFSON: I’ve been saying to friends and colleagues for quite some time that I’ve been pretty good at predicting what’s going to happen, and I’ve generally been wrong about the timing of it. Overall, it’s gone very fast, although it doesn’t feel like that on a day-to-day basis. In historical terms we have come very, very far, very quickly. I don’t have the feeling of “Hey, what took so long?” I don’t look at it that way at all — I look at it as I can see that eleven year frame as a very clear understandable historical period.
Though these things don’t happen overnight, that’s a good thing because I don’t expect something as important as this to be answered in one battle or one state or one year. To the contrary, it’s our job to engage non-gay people, particularly the movable middle, and give them the information so that their hearts and minds can open and, as Lincoln said, they can think anew. That’s not something that gets done overnight. It just doesn’t work that way. So I feel like this has been a very reasonable, indeed quick, period of time and we’ve made tremendous gains. We have achieved the world of marriage. Now we have to build on it and secure it.
MW: Politically is the gay and lesbian community sometimes surprised by or unprepared for how quickly things do move when we have more success more quickly than expected?
WOLFSON: Sometimes our legal victories, for example, are not matched by our political organizing and public education to be able to defend the breakthroughs we achieve. But the other aspect of that question is that sometimes our own imagination as to what we can achieve and our own faith in our fellow Americans’ ability to be fair is less than they should be.
We’re sometimes surprised by how receptive the public can be or how many others will speak up on our behalf if we would only ask them to. So we sometimes under-reach compared to what is possible. At the same time, it’s never going to be linear. There will always be resistance as well as advances, and you can’t be surprised by resistance. I think part of our challenge as a movement is to truly believe that we can enlist non-gay allies and non-gay support if we would talk to our neighbors, family members and friends. It’s almost a clichÃ© but that’s how social change happens, and we have the opportunity to do it. We’re in a period of tremendous organic change right now. We’ve hit the tipping point and, again, it’s not going to come without attacks, but we can make it happen if we engage ourselves and don’t under-reach.
MW: We’ve seen state “defense of marriage acts” that prohibit civil unions as well as marriage for gays and lesbians. Now we have Virginia going even further by outlawing private contracts the cement marriage-like responsibilities between same-sex partners. Are we going to see more states taking those sorts of extreme measures?
WOLFSON: I think for a period of time, as in every other civil rights chapter, we will see a patchwork in which some states move toward equality, while others resist and pile on layers of discrimination. It will be a house divided that our opponents will have created. I talked earlier about our under-reaching at points — one of the things that will help us is our enemies overreaching. By enemy I don’t mean the middle of the public that’s struggling with this issue and is not yet with us. Those are the people whom we have to reach out to in good faith and give the time and information and stories to think anew and to move to the right place. But we have organized opponents, and they will overreach.
They tend to only support or tolerate civil unions and other alternatives when confronted with the imminent reality of marriage equality. But our opponents are truly against any measure of protection. They go to court to try to block partnership registries, they boycott employers who are offer health benefits, they stand up and pass constitutional amendments or laws that are aimed at precluding any other measure of protection. We’re going to have fierce opposition regardless of whether we ask for marriage or we ask for something less. And from my point of view, if we’re going to have the opposition anyway, we might as well ask for all that we deserve.
MW: As a lawyer, how likely do you think it is that Virginia’s legislation will stand a court test?
WOLFSON: I think it’s vastly unconstitutional. For that matter, I think all the discriminatory measures that are being piled on as part of these right wing campaign efforts to discriminate against gay families are ultimately unconstitutional. But the constitution and the courts that enforce it are not some machine that sits there for you put the quarter in and get the right answer out. You have to create the climate of receptivity in which judges and ultimately politicians feel emboldened to do the right thing. But Virginia has clearly overreached, and to cement gay people out of every measure of legal protection to assure security for our families, no matter what the need, no matter what the issue, is clearly blatantly unconstitutional and un-American.
MW: What was the impetus behind forming Freedom to Marry?
WOLFSON: I left Lambda in May 2001 to embark on a planning phase to figure out how do we build on Hawaii, Vermont and the great successes we had made, as well as look at the things that hadn’t worked. How do we reach the next chapter and achieve marriage equality? I was given a grant to brainstorm with colleagues, talk to experts, and think afresh about what new mechanisms, resources, and models might help us as a movement get to the next stage. That led to the creation of Freedom to Marry in January 2003.
Our goal is to secure full marriage equality nationwide. I’ve always believed that no one organization can do it all — it’s just too big. It has to be fought state by state, as well as nationally. It requires litigation, legislation, public education, direct outreach, direct action, mobilization of allies, new fundraising — no one organization is an expert in all of those things and can handle every state and every piece. The goal was to find a mechanism that would enable all the groups to work together to solve the “ownership problem,” that made it difficult for one group to work on something else that another organization was perceived as “owning,” but instead allowing everybody to own it. Freedom to Marry was intended to be a mechanism to enable all that kind of collaboration and non-duplication.
From my perspective the movement has never been working together better than it is now. We’re seeing a high degree of communication and efforts to cooperate and share resources, and an understanding that we’re all at this critical and exciting moment together. There’s never been more collaboration and coordination.
MW: Gays in the military was an explosive issue in the 1990s — are there similarities from that experience that can or have been applied to the fight for marriage?
WOLFSON: There are some similarities to that moment in history, and there are some significant differences. One difference is that, although we had been fighting against military discrimination for more than a decade, for most organizations and for most of the public, the issue truly did come to a boil in a matter of months. It was almost out of nowhere from most people’s perspective. That just isn’t true of the marriage discussion. The country has been intensely debating marriage equality from at the latest 1993 with Hawaii. It just didn’t come out of nowhere.
Number two, marriage is first and foremost a state-governed entity. States decide who can get married, although they must be consistent with the U.S. Constitution. As a result, this is never going to be decided in one up-or-down vote in Congress, unlike the military battle. Of course, the right wing is trying to change that by mounting this federal constitutional amendment attack, and we must defeat it. But the battle to win marriage equality and the opportunities presented by the marriage discussion are much bigger than one vote and one defensive strategy in Congress.
Third, service in the military is very important, and being able to serve openly in the military is a defining element of citizenship. Therefore it is a tremendously resonant and important cause, both for the people who want to serve in the military and because it is a hallmark of citizenship that shapes people’s understanding of who gay people are. The stakes are very high, whether or not you want to serve in the military or not. But, having said that, most people don’t want to serve in the military. By contrast, most people do want to get married. And most people, if not everybody, have experience with marriage. So marriage, even more than the military, is a deeply resonant vocabulary and access point to questions of citizenship, and defining who we are as people. By fighting for marriage we get a chance to reach out to non-gay people and thereby truly transform how they think of us.
MW: Over the years, some segments of the gay community have argued that we shouldn’t be fighting for marriage rights because marriage is inherently a bad system. Is that still a significant portion of the gay community politically?
WOLFSON: Gay people are at least as diverse as non-gay people, and not all gay people are going to agree on everything. I respect that. Not all non-gay people want to get married, but they all have the choice to get married. And as the name of my organization suggests, what we’re fighting for here is the freedom to marry, not mandatory marriage. I don’t think you can say you’re fully equal until you have the choice, even if your choice is then to reject something.
The vast majority of gay people do want the freedom to marry, and I believe the majority of gay people will exercise it when we have it. Certainly some of the claims made by community opponents of fighting for marriage have proven to be untrue. It was sometimes said that marriage was a patriarchal institution and the only people who care about this are men, but what we’ve seen is that the majority of couples that get married are women. I actually think the majority of gay people, wherever they might have been five, ten or twenty years ago on this, do understand the stakes and are very much involved in this struggle right now.
I have to say that there’s been a period of time in which we as a community had not really done the work we needed to do to really educate our fellow members of our community about what the stakes really are, about the ways in which being denied marriage affect your life. And I don’t only mean the tangible ways like being denied Social Security that you earned, being denied fair tax treatment on the money you earn, being denied the ability to pool resources and build the best life for the two of you that you deserve. I’m also talking about the intangible ways that being denied marriage has marginalized us, has said that our love is not worthy of respect, has said that gay people need not be taken seriously because we are just not quite as good. Those things matter. We’ve managed to push past that and gotten much more of that information out to our fellow gay people. People have a much better understanding of what the stakes are and are rightly believing they deserve this and need to do something about it.
MW: What do you see as the big tasks this year for the marriage movement?
WOLFSON: We have to actually secure marriage licenses, and to see couples legally married. With Massachusetts issuing marriage licenses the country will again get a chance to see the faces and hear the voices of the real families who are helped. They’ll see that the sky doesn’t fall, there’s no plague of locusts, gays are not using up all the marriages licenses, and the world moves forward. That is the single most important piece of work in ending discrimination — once fair-minded people see this move from a hypothetical to a reality, and realize that families are helped and no one is hurt, they will accept it. The right wing is scared to death of that, which is why they’re mounting this ferocious last-ditch attack. But on some level they know they’ve already lost, because once marriage is a reality they’re not going to be able to scare people as easily. And the majority of people will move to fairness, if we do our work. So task number one is to make sure it happens, and make sure it sticks.
And we have to beat back as many of these attacks as possible, at the state level certainly, but most important the federal constitutional amendment. It is truly shocking to see elected officials countenance using the constitution to try to impose for all time a resolution on a question of social justice that’s here right now.
MW: Doesn’t the very fact that we’re having a rational debate about marriage signify that they’ve lost in the long term?
WOLFSON: Sure, because they can’t win that discussion. One of the things you learn in law school is if the facts are not with you, argue the law. If the law is not with you, argue the facts. And if neither the law nor the facts is with you, pound the table. Well, they don’t have the facts, they don’t have the law, and right now they’re doing the constitutional equivalent of pounding the table.
MW: Are we taking the amendment effort seriously enough? Initially there were a lot of comments that it will never pass because it’s difficult to get amendments through, but stranger things have happened.
WOLFSON: I feel like we are taking it seriously. Each of us has an obligation to demand from our representatives that they not use the constitution as a political football. If we’re not complacent about it, and don’t leave it to someone else to do, we can beat back this attack. We need to be engaging the public in this discussion by enlisting diverse messengers and putting forward compelling stories from the real people who are affected by this discrimination. We need to ask others for their support, we need to ask others to speak out. We need to ask non-gay people to make their voices heard. We need to make sure that the people of color within our own community are seen and that their voices are heard. We need to make sure that people of faith are heard.
There are two important truths that we have to get out — not just saying them once, but reinforcing them in every conversation we have with as many different messengers as possible. First, this is about real people who have made a personal commitments to each other, who are doing the hard work of caring for one another, dealing with the ups and downs of life, being there for each other — sharing the responsibilities as well as sharing the joy, for all practical purposes as married people. We need people to hear that and see that.
The second is that it is discrimination, it is wrong, it is unfair, to deny these people the legal commitment to match their personal commitment. It is wrong to deny them the comfort of knowing that Social Security that they’ve earned and paid for will be there when they need it. It is wrong to say to couples who are doing the work of marriage that they are not entitled to equal treatment under the law when it comes to marriage. And even though it makes some people uncomfortable, fair people will understand that our country has come to other similar points before when we’ve had to make changes because we’ve come to understand that the way we’re treating some within our midst is wrong. They will be ready to hear that when they understand who this is about.
MW: How was it to be included in the Time Magazine‘s list of the world’s 100 most influential people?
WOLFSON: I know it sounds like a clichÃ©, but it’s actually pretty humbling to be put on a list like that. I can’t help feeling that it’s kind of overstated, but it’s obviously very impressive and nice. But what really pleases me about it is that it’s a powerful acknowledgement that marriage equality is a civil rights cause whose time has come. To see marriage for gay people put up there as a civil rights question and listed alongside champions and human rights heroes such as Nelson Mandela is just a tremendously important reminder that our cause is just. This does really matter and it’s part of a larger struggle for human rights that we can play a part in. It’s not just about gay people, it’s not even just about marriage — it’s part of standing up for a vision of human rights that says that everyone has a right to be both equal and different, and no one has to give up her or his difference in order to be treated equally. And “all people” includes us — we’re entitled to stand up for ourselves too.
For more information about Freedom to Marry, marriage resources for the lesbian and gay community, and ways to get involved, visit www.freedomtomarry.org.