Evan Wolfson, the founder of the modern gay marriage movement, tells the waiter he would like an iced decaf and "the usual." Wolfson, one of Time Magazine's Most Influential People in the World, is a man who unflinchingly knows what he wants and stays his course, whether it be in his choice of restaurant or in his choice of battle. And others always know when they see Evan coming what it is that he wants.
Since his time at Harvard Law School when he wrote a paper on the topic, what Wolfson wants is the right for gay people to marry. The issue gained national prominence in 1993 when the Hawaii Supreme Court held in Baehr v. Lewin that the government had to show a reason for the denial of the freedom to marry, not just deny marriage licenses to the plaintiff gay couples. Wolfson was co-counsel in the historic 1996 Hawaii trial in which he argued that the government does not have a sufficient reason for excluding same-sex couples from marriage. In 1999, Wolfson contributed to Baker v. Vermont, the case that led to the creation of civil unions; advised the lead attorneys in Goodridge v. Department of Public Health, the case that led to same-sex marriage in Massachusetts; and since 2003, when he founded the primary umbrella organization coordinating the efforts to win marriage for gay people, Freedom to Marry, Wolfson has played a role in every marriage equality case in the United States. He is the movement's founder and leader, and his focus remains square on winning that right. "For years," said Matt Foreman, executive director of the National Gay and Lesbian Task Force, "many of us were saying to him, 'We're not ready. The country's not ready. And, by the way, you're crazy.'"
When I make a statement to him about his devoting his life to gay marriage, he corrects me: "I’ve played a part in cases that span the entire spectrum of eliminating gay people’s exclusions and limitations on who gay people are, and I’ve also written on immigration and economic justice, and I have worked on cases involving race discrimination in jury selection and women’s inequality. I don’t think one has to pick one of these things; they work together."
Indeed, he has. Wolfson was lead counsel before the Supreme Court in Boy Scouts of America v. Dale, the case arguing against the expulsion of gay scoutmasters. As an intrepid young assistant district attorney in Brooklyn, Wolfson worked on People v. Liberta to end the exemption that allowed women to be raped by their husbands legally, a right in New York State as early as 1984. And he helped end the practice of choosing jurors based upon their race.
Wolfson's entire career has been at the center of the most explosive legal and cultural issues of the last thirty years in the United States, and his influence has been profound. David Shankbone sat down with him to discuss some of the recent decisions affecting gay marriage, gender in marriage and reactions in the gay community to his fight for their rights.Wolfson and gay marriage
DS: You are one of the leaders, arguably the founder, of the modern gay marriage movement—
- EW: —marriage. Not gay marriage. Marriage. We’re not fighting for gay marriage, or same-sex marriage, or any phrase like that. We are fighting for an end to exclusion from marriage. We are fighting for the freedom to marry, the same freedom, rules, responsibilities and respect as our non-gay brothers and sisters have. It’s not just a question of wording.
DS: The argument is posed that it’s not the same given that marriage has traditionally been a heterosexual institution.
- EW: The defining tradition of marriage has been change. Throughout its thousands of years of history, across all societies, the most predominant tradition of marriage is that marriage has changed constantly from place to place, across time.
DS: How has marriage changed recently?
- EW: There are four profound battles just within my lifetime that have changed marriage. First, the battle to end the government’s role in limiting people’s ability to get out of a failed or abusive marriage. The choice by a couple of whether to marry or divorce, that it be made by the couple rather than be imposed from without was a legal and cultural battle that took decades, arguably centuries. We changed that tradition just in my lifetime, and marriage is stronger for it. Very few people today would turn the clock back, despite all the rhetoric of our opponents who use divorce as an excuse as to assault gay people on marriage. In fact, they are not seriously working to end divorce because they understand that most people believe rightly that is a decision that belongs to human beings and not one to be imposed from without.
- The second important change was ending government interference in personal choices, such as whether or not to engage in sex with a married partner and whether to use contraception [the Supreme Court's Griswold decision]. Many opponents of gay people’s right to marry have never accepted that fundamental principle as a matter of law, even though they exert it in their own life, often hypocritically, behind closed doors. They profess to want to roll back the clock on the Griswold decision and all the others that established the principle that those decisions rest with individuals.
- Third was ending race restrictions on who could marry whom; that only came to a conclusion, legally speaking, forty years ago. Forty years ago there were people defending with the same ferocity as that with which they oppose gay people’s right to marry, the government’s right to restrict who can marry based upon their race, preaching who was the right kind of person to marry somebody else. Forty years ago people believed that was okay.
- The fourth was ending the legal subordination of women in marriage. The definition of marriage said it was okay for a husband to rape his wife because he is entitled to take what belongs to him. I worked on the case that ended what was called the marital rape exemption.
DS: That was here in New York?
- EW: That was here in New York when I worked for the Brooklyn D.A.’s office. This is not ancient history! This is not the Civil War…this was in our own country in our lifetime in New York State. Marriage has always been this battlefield upon which larger questions have been addressed, and there have been many, many changes in the institution that have made it stronger and more reflective of American values--love, choice, freedom, equality, commitment, dedication--and reflective of who Americans really are, including men, women and people of diverse religious opinions, and gay people. Values and exclusion: that’s what this struggle is about.
DS: How did you first become involved in the marriage issue and why was it something you decided to dedicate yourself to?
- EW: The short answer is that I don’t believe now, and I didn’t believe when I started this, that you can say you are for equality but acquiesce in exclusion from the central social and legal institution of this and virtually every other society. That’s not equality. You can’t say you are for equality if you accept exclusion from something so important legally and personally.
DS: But why marriage and not immigration, or adoption? There are many areas where gay people are excluded from participation. Why do you personally focus on marriage?
- EW: These are not either/ors. It’s not like you have to pick one thing. However, the reason I think it is so central to the discussion is because marriage is not just about getting married.
- Marriage is a vocabulary, it’s a vehicle, an engine for a larger discussion that moves people’s understanding of who gay people are, why sex discrimination is wrong, why exclusion is wrong in America, that brings up discussion the separation of church and state, that brings up discussion of whether there should be limitations or roles based on sex, or whether w:men and women should be treated equally. Whether two women should be considered whole when they form a committed and loving relationship, as opposed to saying they are unwhole and unequal because they don’t have a man in their life.
- These larger questions are engendered by marriage, are promoted by the discussion around marriage, because marriage is a vocabulary in which non-gay people talk about these things and think about these things. Marriage has always been a battleground on which questions like this, large defining questions about what kind of country we are going to have and society we are going to have and the proper boundaries between the individual and the government, have been contested throughout American history. Gay people are not the first people to tackle these questions on the battleground of marriage. By claiming the battleground and vocabulary, we are not only addressing our exclusion from an important legal institution, to which thousands and thousands of protections, responsibilities and opportunities are connected. It’s even bigger than that, because we are not just talking about that set of legal protections and responsibilities and the tangible and intangible consequences that flow from that, we are indeed engaging through that vocabulary in a discussion about central and important questions that in a way advances our cause, and a larger causes, more effectively than virtually any other single thing. That’s why for all the work I have done on many different things, I see the marriage work as important.
The gay community and marriage
DS: It does not appear many gay people are galvanized to fight for the marriage right.
- EW: For what do you see gay people more galvanized? I would say the opposite. I’ve seen gay people marching in the streets of California, on Freedom to Marry day all around the country. But marching in the streets is not the ONLY methodology of social change. Here in New York we passed a marriage bill this year. California passed a marriage bill through two consecutive legislatures after unseating anti-gay opponents and electing pro-gay legislators. That took action, that took planning.
DS: Larry Kramer, a very prominent gay critic of his own community, has taken it to task for its inaction and focusing on sex and having a good time instead of working to change their place in American society. But you are saying that there is no case of wider apathy amongst gays nor a relative disengagement with their issues?
- EW: Absolutely we need to have more people break their silence, find their voice, engage in this discussion with the nongay people around them about who gay people really are, why marriage matters, how the denial of marriage hurts them, their loved ones, their partners.... We need more gay people. We also need more non-gay people.
DS: Do you feel disappointment with the level of involvement of the gay community in the marriage issue?
- EW: I always want more. My job is to want more, to help make more happen, and I believe if more people would break their silence, take action, write a check, get involved, talk to their mothers and roommates, we’d go there faster. What keeps me going is spending less time on disappointment and more time on possibility, and I always believe we can get more. That leads me to push harder for more. A few months ago people thought we would never live to see a marriage bill passed in New York, particularly after the cruel blow of the loss in court last year. Within less than a year we got the New York assembly to pass a marriage bill. Just a few years ago people didn’t think we would ever get a legislature to pass a marriage bill. California broke that impasse, now twice.
DS: In July of 2006 there was a proclamation that went out called Beyond Same-Sex Marriage. It was signed by a lot of well-known people: Cornel West, Armistead Maupin, Gloria Steinem, Terrence McNally. All friends of the gay movement—
- EW: —and all supporters of the freedom to marry—
DS: —That proclamation said too many resources are going toward gay marriage. In a similar vein, one Wikipedia editor asked, "Should we be fighting for the ultimate 'prize' of same-sex marriage when most states haven't even given the basic gay rights of non-discrimination in employment, non-discrimination in housing and non-discrimination in public places/accommodation?"
- EW: Well, first of all, the signers you mentioned who signed that Beyond Marriage statement also are strong supporters of the freedom to marry. The statement itself did not actually say what you just said. Some of the organizers of Beyond Marriage who have their own political agenda took that broad coalition of people who signed off on the generically good goals laid there and presented it as a focused attack on the marriage work. More than the statement or many of the individual signatories themselves believe in.
DS: Have any of the signatories rescinded their support of the Beyond Marriage statement?
- EW: I don’t know that anyone has been asked to do that. I think the reason why people sign statements like that is because they are in agreement with the general goals. They are not necessarily responsible for or paying attention to what some of the people with a more focused or stronger agenda have to say.
DS: What was the motivation behind the letter? People such as Richard Kim, associate editor of The Nation and one of the organizers, said it supported the notion that too many resources were going toward marriage fights.
- EW: I think some of the organizers had an agenda. Richard Kim clearly has an agenda that is very different from what Gloria Steinem or Armistead Maupin have. I think if Terrence McNally, Steinem and the others were actually shown some of Richard Kim’s articles as opposed to the broad, conciliatory and coalition-building goals found in that statement, they would not endorse his articles nor his views.
DS: Why not?
- EW: Kim’s articles are dismissive of the importance of marriage and the aspiration to marry that millions of people have, and that people like Gloria Steinem and Terrence McNally support. What I said to the Beyond Marriage organizers is that 90% of what is in that document we agree with and, in fact, I have worked for. In their schema I am supposedly the antithesis of everything they stand for, yet I would argue I have done more to attain their goals than they have.
DS: Are too many resources going toward marriage fights?
- EW: That’s completely untrue. To the contrary, the work to win the freedom to marry, particularly in some of states that are primary battlegrounds right now, is under-funded. We need more resources to go to winning public opinion. I also don’t believe that money goes to one fight done right takes away from other fights we care about. I think when we do one fight right our movement’s work rises collectively. Gay people should not have to choose which is more important to them: their love or their job. That’s a false choice.
DS: Some argue that marriage fights are "too much, too soon" and that it hurts the other fights; that it causes a backlash.
- EW: If you look at the successes of this year, we have won more non-discrimination measures, we have won more protections for transgender people, we have won more—or at least as many—gains for youth protection this year than any other year in our movement. All of it fueled by and accelerated by the marriage work and the discussions it engenders about gay people and our common humanity. That helps move the benchmarks about what is fair. Richard Kim and some of the others--not all--but some of the others have a false choice framing that continually undermines the common effort. Many of the goals that they support I also support. That said, I don’t think they speak for everybody that signed that statement, and the proof is that it went out there and went nowhere. Meanwhile, those of us who feel differently continue to move forward and rack gains for the movement, including, for example, the win in Iowa just a few weeks ago.
The Iowa and Maryland decisions
DS: Was it a win in Iowa, or was it a brief respite?
- EW: It was a judge in Iowa finding that the denial of couples and families in Iowa of the freedom to marry has to change and end, and that same-sex couples should have the same freedom to marry as different sexed couples. That’s a win. It’s not a final win, because the case is being appealed. But just a few years ago if people were asked if we could get a judge in Iowa to strike down the exclusion from marriage, right there in the heartland, I think most people would have said we couldn’t.
DS: Last week, Maryland's Court of Appeals became the latest high court, after New York, Washington and New Jersey, to refuse to grant marriage rights to gay couples. What’s your reaction to the decision? There haven’t been many gay marriage gains recently.
- EW: I don’t see it that way. I see very clearly we are in fact winning. The number of people who are wrestling with this question, their desire to be fair but who are also struggling with their conflict and discomfort about gay people. Many don’t understand yet how the denial of marriage really effects real life people who they are increasingly coming to know. They are having to think about how marriage is something precious and important to same-sex couples and their kids, as well as to them. They are wrestling with all this. I have no doubt and I see every day that more people are moving in our direction.
DS: Why is momentum in your movement seemingly stalled?
- EW: What hasn’t happened yet is that the decision-makers at a given moment, whether it be judges on a court or the right combination of legislators and a governor, have gotten to the place where they have brought the second state [In 2004 Massachusetts became the first state to pass gay marriage]. What hasn’t happened is all those things coming into alignment to get the second state...to get the fifth state. So you are absolutely right that the victory of the next state has remained a teeny bit beyond our grasp so far, although we continue to come closer and closer. 4-3 in Maryland is not something people thought was going to happen even that close just a few years ago. On the other hand, 4-3 is not good enough. It needs to be four to three in our favor, or five to two. We are this close to getting the second state, and Maryland was very disappointing because we hoped that it might be the next one.
DS: The decision was quite strong.
- EW: No, the decision was quite mediocre.
DS: But the court ruled against even domestic partnerships.
- EW: Correct, although the reason the court gave for that is that the plaintiff’s didn’t ask for it. They could have written more; they encouraged the legislature to move forward; they didn’t preclude a case challenging the denial of the incidence of marriage and unequal treatment generally; they simply ruled on the question before them. That said, it was a disappointing decision. It was very mediocre and the reasoning was shallow and inadequate. They never explained how if procreation is somehow central to marriage--which legally it clearly is not--how denying gay people the right to marry promotes procreation.
DS: What role does Freedom to Marry play in these cases?
- EW: We provide a role as adviser and consultant when asked.
DS: Were you an adviser and consultant to the plaintiffs in the Maryland case?
- EW: Yes.
DS: Does Freedom to Marry play more of a coordinating function?
- EW: That’s one role Freedom to Marry plays. The lawyers in our movement know how to handle these cases; in Maryland it was the ACLU, and Ken Choe did a brilliant job at argument. My role is as an adviser and consultant, but is almost as much about being a friend and colleague as it is about the need for one more opinion. The more important role Freedom to Marry plays is to remind all of us in this movement that winning a lawsuit, winning a legislative battle, winning a ballot measure and winning the hearts and minds of the public are not things to be done in an isolated fashion. we need to integrate all the work of what Martin Luther King called the methodologies of social change. To make sure they are all being done in concert, so that when the lawyers are doing a brilliant job in court, the rest of us are doing a serious, persistent engagement of the public and opinion leaders. The way a lawsuit turns out is at least as much effected by the work that is done in the food court as it is by what is done in the law court. The conversations we have around the court are important as the briefs we file in the court. So Freedom to Marry's more important role in cases like Maryland is to support the leaders on the ground and to have the engagement that creates the climate for the court to rule in our favor.
DS: How do you handle losses such as the one in Maryland?
- EW: What eased the pain of Maryland was the truly striking and compelling video of the Mayor of San Diego signing a measure in support of gay marriage, even though literally just hours before the press conference he said he would veto it. He’s a Republican ex-police chief, but when he looked his gay staffers and his gay daughter in the face and talked with them, he realized he couldn’t do it, and came out for the freedom to marry. He talked about how civil unions--the position he had hours before--was not good enough. He provided a moral witness, a living testimony, of a person thinking deep and the power that gay people have to change minds when they speak to people like him and get them to look deep in their heart. That moment last week is an indication of how more gay people and more non-gay people can play more of a role in moving this momentum toward marriage equality even faster.
Domestic partnerships and civil unions
- EW: Civil unions, domestic partnerships, and other legal mechanisms can serve a value in helping end discrimination and helping achieve protections and some degree of security for families. But they are no substitute for the tangible and intangible security, protection, responsibility and respect that come with the freedom to marry. I’m all for partnerships, civil unions and other mechanisms that help families meet their needs and do better. But not as a substitute for ending discrimination in marriage. Gay people should not have to go in the back door and settle for less; they should not have to take a legal mechanism that is separate and lesser, when we already have one system in our country that fully provides protections and responsibilities and respect. That’s called marriage. Most non-gay people would not trade their marriage for a civil union, and gay people shouldn’t have to, either. Especially when there is no good reason for the government sending some families around the back while others come in the front.
DS: People like Alan Dershowitz have raised an argument that the word 'marriage' should be reserved for religious contexts, and in civil and legal contexts we should use a uniform concept of civil unions.
- EW: Is Alan Dershowitz married? [he is] For those same reasons he found it important to be legally married, and entitled to respect for that, so should gay people be married. If it’s good enough for Professor Dershowitz, it’s good enough for us.
DS: He’s not arguing against marriage, but against marriage as a civil institution.
- EW: Why do we suddenly have to throw out the entire system, invent some whole new thing, just because gay people want to get married? I don’t actually see Alan Dershowitz doing anything about this, other than writing an article, because he probably rightly understand it would be an immense project to go around the country and convince 200 million plus people to trade in their marriage for something new and explain why we are doing this when we actually have a legal system that already clearly distinguishes between civil and religious marriage. Government doesn’t issue bar mitzvah licenses or communion licenses, but it issues marriage licenses because marriage is a legal institution that is distinct from whatever ceremonies or important meaning people find when they celebrate their religious marriage in church, synagogue, temple or mosque.
- Marriage in the United States is a civil union; but a civil union, as it has come to be called, is not marriage. It is a proposed hypothetical legal mechanism, since it doesn’t exist in most places, to give some of the protections but also withhold something precious from gay people. There’s no good reason to do that. We don’t need to invent a whole new system because we already have a distinction between civil and religious.
DS: People argue that system is already broke. Half of marriages end in divorce. If that system isn’t working for straights, why should we introduce it for gay people?
- EW: I don’t accept that at all. The system works for individuals who seek the freedom to marry, enter into marriages, and find enrichment and love and support and public affirmation and a vast array of legal and economic consequences. Many marriages may fail individually, but as an institution it works and many individual marriages work. Most people who divorce also remarry. That every marriage doesn’t work does not mean that marriage as an institution isn’t serving very important functions for people. What Alan Dershowitz proposes is something people say when they don’t bite the bullet of simply saying we should end the exclusion of gay people from marriage. Instead, they go off into some whole other academic abstraction that sounds good, but that they themselves don’t follow. They give no political plan for achieving it, and they can’t even articulate a reason for why we need to do it. That proposal to create something brand new out of cloth called civil union, there’s no reason why that would actually work better or worse to affect the current divorce rate. Why would that be any different than it is for marriage?
Transgender people and marriage
DS: Transgender people face specific issues in marriage since what constitutes a man or a woman is often legally defined. How does the marriage movement address this issue?
- EW: Our understanding of how you define a man and a woman should absolutely be true to people’s lived experience and should not be laced with archaic gender roles and discriminatory attitudes about men and women or about people who are transgender. Second, we all have an interest in ending sex discrimination in marriage. How you come to be a same-sex couple, whether by transition as a transgender person, or simply by falling in love with a person of the same sex, really shouldn’t affect your ability to get a marriage license. It should not matter to the government because there is no good reason for the government to impose a different sex restriction on a couple who wants to marry. That’s true whether it be a couple that includes a person who is transgender or a couple who happened to get there by falling in love.
- EW: I think ending the different sex restriction on who can marry and ending sex discrimination in marriage would significantly help people who are transgender, people who are gay and people who fall in love with somebody of the same sex. Let’s remember: we don’t fall in love with categories, or an entire sex. A man doesn’t marry women, he marries a particular woman he loves. You marry the man you love, and that’s true of transgender people, straight people and gay people. So ending discrimination in marriage would help all of us, but of course ending discrimination in marriage doesn’t solve every problem for everybody. It’s not like ending discrimination in marriage is the only thing that matters.