Creating a Climate of Receptivity
by Evan Wolfson
© January 2001, Evan Wolfson
Interviewer: I also wanted to talk about gay marriage, because this is another issue that you’ve been involved in for a long time, especially in the Hawaii case. What arguments are being made in places like Hawaii and Vermont, and is that a principle that can be extended to other states?
Wolfson: The most important thing to understand about what’s happened in the courts is that we’ve increasingly been winning our argument that the state has no good reason for denying gay people the commitment, the protections, and the responsibilities that come with civil marriage-only to see the political process deprive us of the full victories we’ve been on the verge of winning. In Hawaii, we had the freedom to marry shimmering within our reach, but the right wing mobilized a fierce attack on the constitution of Hawaii, and poured millions of dollars into that state to mount a campaign to prevent the courts from being able to do their job.
Interviewer: Is the constitution of Hawaii unique in such a way that the arguments used there could not be applied in other states?
Wolfson: The Hawaii constitution is unusually easy to amend, which is how they were able to do this. The court in Hawaii found that the denial of marriage licenses violates the constitutional guarantee against discrimination based on sex. But the same arguments about sex discrimination-as well as equal protection based on sexual orientation and the fundamental right to marry itself-could be made under every constitution in America. They just have to be made carefully and at the right time. But the larger point is that the legal victories were within our reach. It was our failure to mobilize sufficiently to withstand the political attack of our opponents and to lay the groundwork politically and in public education that prevented us from seizing that legal victory.
Interviewer: In Vermont, there was a more favorable outcome. Would you view it as an unqualified victory?
Wolfson: No, the court’s ruling that gave people all the rights and protections that come with marriage was an enormous step forward in Vermont, building on Hawaii, and one that we would not have achieved had we not been fighting for full equality through the freedom to marry. But the court stopped short of immediately ordering full equality through marriage, and as a result we now have a new legal status that’s separate and unequal. It’s no substitute for full equality-even though it is a terrific thing and something upon which we can build.
Interviewer: What’s missing in Vermont?
Wolfson: It is on its face a separate marital status. It is a non-marriage marital status that’s intended to provide the protections and benefits of marriage under state law, but it does not assure people the full respect and legal protections that marriage has traditionally received in this country, and it does not assure people who enter civil union that their legal relationship will be respected as they travel or move to other states. And it is inherently separate and therefore unequal. We’ve gone down the path of two lines at the clerk’s office, or two drinking fountains, before. We’ve done separate and unequal; it was a mistake and should not be repeated.
Interviewer: Meanwhile, many states have passed laws that expressly pre-empt the recognition of gay marriages consecrated in other states. Isn’t this a violation of the “full faith and credit” clause in the Constitution, not to mention a law that pre-empts a purely hypothetical situation?
Wolfson: You’ve raised a lot of important questions. These anti-marriage laws that the right wing has been pushing in their state-by-state campaign will be challenged once we win marriage somewhere. You can’t go into court and say, “My marriage is being discriminated against under this discriminatory anti-marriage law,” until you have one somewhere. Civil union is a marital status but not marriage, and therefore those laws ought not to be a barrier to the basic respect that every couple is entitled to for their legal commitment, and that every state owes to one another. We should fight to protect and build on civil unions as well as other family protections. Still, full marriage is the only gateway to a vast array of protections throughout our country. There is no easy way to replicate what comes with marriage. What’s more, marriage is an indispensable part of people’s vocabulary in talking about love, family, and commitment, and we ought to claim that vocabulary. It is a mistake to try to avoid talking about our lives in language that other people can understand. We need to seize and shape the discussion about our lives in the terms that people can relate to.
Interviewer: How does this translate into legislative efforts and strategies going forward?
Wolfson: I hope we’ll see legislators in many states introduce legislation [to recognize gay relationships]. When they do, they should pursue what I think of as a twin bill strategy: a bill to end discrimination in civil marriage and another bill to create full civil union, as in Vermont. They should not go below what Vermont did. Vermont has now provided a floor, a model for providing many of the protections and benefits that come with marriage. And we should be pursuing both those bills, including full equality in marriage itself, so that we can have a discussion with America that continues to pull everything toward equality rather than bargaining with ourselves. I’ve said before, I think in your pages, you don’t get half a loaf by asking for half a loaf. You get half a loaf by demanding the full loaf you’re entitled to, and when you get that, you continue fighting for the rest.
Let me sum up one more thing. Lambda’s vision of how we’re going to move this civil rights movement forward is that the work we do has to have three elements, and these all have to happen together. The first is that we really need to seize and shape the terms of the debate. We need to speak to non-gay people and tell our stories in powerful, resonant terms. We need to talk about marriage, we need to talk about the Boy Scouts. Second, we need to engage non-gay people. We really need to be out there asking for support, not just talking to ourselves. And third, we need to undertake careful legal and political action within the climate of receptivity that we are creating.
After all, it was only seven years ago that the Hawaii Supreme Court first put the question of gay people’s freedom to marry before the country. And now two-thirds of all Americans have come to believe that gay people will win the freedom to marry, according to the NBC News/Wall Street Journal poll. You have the two vice presidential candidates, including a very conservative Republican and a centrist Democrat, talking on national television about their personal “wrestling” with or their “openness” to gay people’s freedom to marry.
Remember, the question Bernard Shaw asked them didn’t even use the term “marriage,” yet both Lieberman and Cheney gave their answer in terms of marriage, because that’s the vocabulary in which non-gay people think of equality. Meanwhile, Gore’s current position is to oppose marriage itself but to take an “all but marriage” position. This is just one presidential election after all the candidates were falling over themselves to support and sign the federal anti-marriage law. Going to the heart of equality and inclusion by addressing marriage, the Boy Scouts, etc. moves people forward. If Cheney and Lieberman can talk about our freedom to marry on national TV, why won’t the gay rights organizations?
This interview is excerpted by permission from an article that originally appeared on the Web site for the Gay & Lesbian Review Worldwide. It was called “Why the Boy Scouts Case Went Down: An interview with the lawyer who argued the Supreme Court case: Evan Wolfson” We have reprinted the last half.
Evan Wolfson, went before the Supreme Court in 2000 to argue the case against the Boy Scouts of America in a discrimination lawsuit. The case involved James Dale, a scoutmaster, who was thrown out of scouting in 1990 for being openly gay. While the interview was ostensibly about the loss of the discrimination lawsuit (Dale vs. Boy Scouts of America), Wolfson focused on the positive effects and on creating attitude changes in America.