Marriage Equality and Some Lessons for the Scary Work of Winning

Evan Wolfson

September 30, 2004

One of the good things about my job is I have plenty of time on planes and trains in which to read.

Right now I’m reading the Library of America’s anthology Reporting Civil Rights. In two volumes, they’ve collected the journalism of the 1940s, ’50s, ’60s, and ’70s describing the blow-by-blow, the day-to-day, of what the struggles of those years felt and looked like . . . before those living through that moment knew how it was going to turn out.

Exhilarating, empowering, appalling, and scary.

That’s what a civil rights moment feels like, when you are living through it—when it is uncertain and not yet wrapped in mythology or triumphant inevitablism.

This year our nation celebrated the fiftieth anniversary of Brown v. Board of Education. But what followed Brown was not the sincere and insincere embrace it gets today, but—in the words of the time: legislators in a swath of states declaring “massive resistance”; billboards saying, Impeach Earl Warren; members of Congress signing resolutions denouncing “activist judges”; and, of course, the marches, Freedom Rides, organizing summers, engagement, hard work, violence, legislation, transformations . . . pretty much everything we today think of as the civil rights movement—all after Brown.

America is again in a civil rights moment, as same-sex couples, their loved ones, and non-gay allies struggle to end discrimination in marriage. A robust debate and numberless conversations are helping our nation (in Lincoln’s words) “think anew” about how we are treating a group of families and fellow citizens among us. Today it is gay people, same-sex couples, LGBT individuals, and their loved ones and non-gay allies—we—who are contesting second-class citizenship, fighting for our loved ones and our country, seeking inclusion and equality—and it is scary as well as thrilling to see the changes and feel the movement.

How can we get through this moment of peril and secure the promise?

There are lessons we can learn from those who went before us . . . for we are not the first to have to fight for equality and inclusion. In fact, we are not the first to have to challenge discrimination even in marriage.

You see, marriage has always been a human rights battleground on which our nation has grappled with larger questions about what kind of country we are going to be: questions about the proper boundary between the individual and the government; questions about the equality of men and women; questions about the separation of church and state; questions about who gets to make important personal choices of life, liberty, and the pursuit of happiness.

As a nation, we have made changes in the institution of marriage, and fought over these questions of whether America is committed to both equality and freedom—in at least four major struggles in the past few decades:

 

• We ended the rules whereby the government, not couples, decided whether they should remain together when their marriages had failed or become abusive. Divorce transformed the so-called “traditional” definition of marriage from a union based on compulsion to what most of us think of marriage today—a union based on love, commitment, and the choice to be together and care for one another.

• We ended race restrictions on who could marry whom, based on the traditional “definition” of marriage, defended as part of God’s plan, seemingly an intractable part of the social order of how things have to be.

• We ended the interference of the government in important personal decisions such as whether or not to procreate, whether or not to have sex without risking a pregnancy, whether or not to use contraceptives—even within marriage.

• And we ended the legal subordination of women in marriage—and thereby transforming the institution of marriage from a union based on domination and dynastic arrangement to what most of us think of it as today—a committed partnership of equals.

 

Yes, our nation has struggled with important questions on the human rights battlefield of marriage, and we are met on that battlefield once again . . .

As in any period of civil rights struggle, transformation will not come overnight. Rather, the classic American pattern of civil rights history is that our nation goes through a period of what I call in my book, Why Marriage Matters, “patchwork.”

During such patchwork periods, we see some states move toward equality faster, while others resist and even regress, stampeded by pressure groups and pandering politicians into adding additional layers of discrimination before—eventually—buyer’s remorse sets in and a national resolution comes.

So here we are in this civil rights patchwork. On the one hand, as the recent powerful and articulate rulings by courts in Washington and New York states demonstrated in the past few weeks, several states are advancing toward marriage equality, soon to join Massachusetts in ending discrimination and showing non-gay Americans the reality of families helped and no one hurt.

Meanwhile, on the other hand, as many as a dozen states targeted by opponents of equality as part of their own ideological campaign and for their political purposes could enact further discriminatory measures this year, compounding the second-class citizenship gay Americans already endure.

These opponents—anti-marriage-equality, yes, but also antigay, anti–women’s equality, anti–civil rights, antichoice, and anti–separation of church and state—are throwing everything they have into this attack campaign because they know that if fair-minded people had a chance to hear the stories of real families and think it through, they would move toward fairness, as young people already have in their overwhelming support for marriage equality. 

Most important, as Americans see the faces and hear the voices of couples in San Francisco; as they witness the families helped and no one hurt in Massachusetts and digest the reassuring way in which marriage equality is already finding acceptance there after just a few months; as they engage in conversations in every state and with many families, chats with people like us and non-gay allies—hearts and minds are opening and people are getting ready to accept, if not necessarily yet fully support, an end to discrimination in marriage . . .

In past chapters of civil rights history unfolding on the battlefield of marriage, this conversation and this patchwork of legal and political struggles would have proceeded in the first instance—and over quite some time—in the states, without federal interference or immediate national resolution.

That’s because historically, domestic relations, including legal marriage, have under the American system of federalism been understood as principally (and almost entirely) the domain of the states⁶.

States worked out their discrepancies in who could marry whom under the general legal principles of comity, reflecting the value of national unity. The common-sense reality that it makes more sense to honor marriages than to destabilize them was embodied in the relevant specific legal principle, generally followed in all states—indeed, almost all jurisdictions around the world—that a marriage valid where celebrated will be respected elsewhere, even in places that would not themselves have performed that marriage.

States got to this logical result not primarily through legal compulsion, but through common sense—addressing the needs of the families and institutions (banks, businesses, employers, schools, etc.) before them. Eventually a national resolution came, grounded, again, in common sense, actual lived experience, and the nation’s commitment to equality, constitutional guarantees, and expanding the circle of those included in the American dream.

But when it comes to constitutional principles such as equal protection—and, it now appears, even basic American safeguards such as checks-and-balances, the courts, and even federalism—antigay forces believe there should be a “gay exception” to the constitutions, to fairness, and to respect for families. Inserting the federal government into marriage for the first time in US history, our opponents federalized the question of marriage, prompting the passage of the so-called Defense of Marriage Act (DOMA) in 1996.

This federal antimarriage law creates an un-American caste system of first- and second-class marriages. If the federal government likes whom you marry, you get a vast array of legal and economic protections and recognition—ranging from Social Security and access to health care, to veterans benefits and immigration rights, to taxation and inheritance, and a myriad of others. (In a 2004 report, the Government Accountability Office, charged with auditing use of federal funds, identified 1,138 ways in which marriage implicates federal law.) Under so-called DOMA, if the federal government doesn’t like whom you married, this typically automatic federal recognition and protection are withdrawn in all circumstances, no matter what the need.

The federal antimarriage law also purported to authorize states not to honor the lawful marriages from other states (provided those marriages were of same-sex couples)—in defiance of more than two hundred years of history in which, as I said, the states had largely worked out discrepancies in marriage laws among themselves under principles of comity and common sense, as well as the constitutional commitment to “full faith and credit.”

When this radical law was first proposed, some of us spoke up immediately, saying it was unconstitutional—a violation of equal protection, the fundamental right to marry, federalist guarantees such as the “full faith and credit” clause, and limits on Congress’s power. Ignoring our objections, our opponents pressed forward with their election-year attack.

Now they concede the unconstitutionality of the law they stampeded through just eight years ago, and are seeking an even more radical means of assuring gay people’s second-class citizenship, this time through an assault on the US Constitution itself, as well as the constitutions of the states.

Because they do not trust the next generation, because they know they have no good arguments, no good reason for the harsh exclusion of same-sex couples from marriage, our opponents are desperate to tie the hands of all future generations, and as many states as possible, now.

This patchwork—and especially the next few weeks and months—will be difficult, painful, even ugly, and we will take hits. Indeed, we stand to take several hits in the states where our opponents have thrown antigay measures at us in their effort to deprive our fellow citizens of the information, the stories of gay couples to dispel stereotypes and refute right-wing lies, and the lived experience of the reality of marriage equality. While it is especially outrageous that the opponents of equality are using constitutions as the vehicles for this division and wave of attacks on American families, in the longer arc, their discrimination will not stand.

Here are a few basic lessons we can cling to in the difficult moments ahead, to help us keep our eye on the prize of the freedom to marry and full equality nationwide, a prize that shimmers within reach.

While we stand to lose several battles this year, we must remember that wins trump losses. Wins trump losses because each state that ends marriage discrimination allows fair-minded Americans to see and absorb the reality of families helped and no one hurt when the exclusion of same-sex couples from marriage ends. Nothing is more transformative, nothing moves the middle more than making it real, making it personal—and seeing other states join Canada and Massachusetts will be the engine of our victory.

Even where we cannot win a given battle, we can still engage and fight so as to at least lose forward, putting us in a better place for the inevitable next battle.

Now let me say a little more about this idea of “losing forward.” After all, as someone most famous for the cases I lost, I’ve built an entire career on it.

Losing forward is a way that all of us can be part of this national campaign, no matter what our state. Even the more challenged states, the states with the greater uphill climb, the states where we are most outgunned and under attack—even those of us in the so-called “red states” still have a pivotal part in this national movement and can make a vital contribution.

In every state—even those where we cannot win the present battle, but fight so as to lose forward—we have the opportunity to enlist more support, build more coalitions, and make it possible for more candidates and non-gay opinion leaders to move toward fairness. All this contributes to the creation of the national climate of receptivity in which some states may cross the finish line before others, but everyone can be better positioned to catch the wave that will come back to every state in this national campaign. 

Work on the ground in Georgia, for example, can get us a Bob Barr [the congressman who originally introduced the DOMA law] speaking out against the constitutional amendment, or make districts safe for African American leaders, or “surprising” voices to speak out in support of marriage equality. Work in Michigan—while perhaps not enough to win this round—can still help enlist prominent labor or corporate leaders to our cause. And working together, this national chorus will indeed swell, with some states further along and all participating, until all are free.

Wins trump losses. As long as we repel a federal constitutional amendment and continue to see some states move toward equality, beating back as many attacks as possible and enlisting more diverse voices in this conversation, we will win.

Now, the principal reason we are going to take hits this year and lose many, if not all, of the state attacks in November is because our opponents are cherry-picking their best targets and depriving the reachable middle of the chance to be reached. They have more of a head start, more money and more infrastructure through their megachurches and right-wing partners . . . and fear-mongering at a time of anxiety is easy to do. And, of course, historically, it is difficult to win civil rights votes at the early stage of a struggle.

But, to be honest, there is another reason, too, that we will not do well in most of these votes this year. Quite simply, our engagement, our campaigns in almost all of these states, are “too little, too late.” We are starting too late to have enough time to sway people to fairness . . . and we are giving them too little to think about to guide them there. We have to avoid that error in the next wave of battles we face next year, which means, from California to Minnesota, from Wisconsin to Maine, starting not too late, but now, and by saying the word truly on people’s minds, doing it right.

Put another way, the country right now is divided roughly in thirds. One-third supports equality for gay people, including the freedom to marry. Another third is not just adamantly against marriage for same-sex couples, but, indeed, opposes gay people and homosexuality, period. This group is against any measure of protection or recognition for lesbians and gay men, whether it be marriage or anything else.

And then there is the “middle” third—the reachable-but-not-yet-reached middle. These Americans are genuinely wrestling with this civil rights question and have divided impulses and feelings to sort through. How they frame the question for themselves brings them to different outcomes; their thinking is evolving as they grapple with the need for change to end discrimination in America.

What moves that middle?

To appeal to the better angels of their nature, we owe it to these friends, neighbors, and fellow citizens to help them understand the question of marriage equality through two truths:

Truth 1: Ending marriage discrimination is, first and foremost, about couples in love who have made a personal commitment to each other, who are doing the hard work of marriage in their lives, caring for one another and their kids, if any. (Think couples like Del Martin and Phyllis Lyon who’ve been together more than fifty years.) Now these people, having in truth made a personal commitment to each other, want and deserve a legal commitment.

Once the discussion has a human story, face, and voice, fair-minded people are ready to see through a second frame.

Truth 2: The exclusion of same-sex couples from marriage is discrimination; it is wrong, it is unfair to deny these couples and families marriage and its important tangible and intangible protections and responsibilities. America has had to make changes before to end discrimination and unfair treatment, and government should not be denying any American equality under the law.

When we see lopsided margins in these votes, it means that under the gun in the first wave of electoral attacks, we have not as yet reached this middle. We can’t be surprised not to win when in so many campaigns, and over so many opportunities to date (electoral campaigns and just month-to-month conversations), we have failed to give this middle third what they need to come out right.

When, in the name of “practicality” or advice from pollsters or political operatives, we fail to put forward compelling stories and explain the realities of what marriage equality does and does not mean, it costs us the one chance we have to do the heavy lifting that moves people. We wind up not just not winning, but not even losing forward.

By contrast, consider how we lost forward in California. In 2000, we took a hit, when the right-wing pushed the so-called Knight initiative and forced an early vote on marriage. We lost the vote, but because there had been some, though not enough, education about our families and the wrongs and costs of discrimination, polls showed that support for marriage equality actually rose after the election. And the very next year, activists pressed the legislature to enact a partnership law far broader than had been on the table in California before then. Our engagement over marriage continued, and within a couple years, legislators voted again, this time in support of an “all but marriage” bill, which takes effect this coming January. And California organizations and the national legal groups continue to engage for what we fully deserve—pursuing litigation in the California courts and legislation that would end marriage discrimination.

If we do our work right, making room for luck, we may see marriage in California, our largest state, as soon as next year. To go from a defeat in 2000 to partnership and “all but marriage” in 2004, with the possibility of marriage itself in 2005—that’s called winning.

Remember, we have a secret weapon: death.

Or to put it more positively, we on the side of justice have generational momentum. Younger people overwhelmingly support ending this discrimination.

Americans are seeing more and more families like the Cheneys, and realizing, with increasing comfort, that we are part of the American family. The power of the marriage debate moves the center toward us, and as young people come into ascendancy, even the voting will change.

This is our opponents’ last-ditch chance to pile up as many barricades as possible, but again, as long as we build that critical mass for equality and move the middle, we win.

Why is it so important that we now all redouble our outreach, our voices, our conversations in the vocabulary of marriage equality? In part because victory is within reach. In part because we can and must move that middle now to make room for that generational momentum and rise to fairness. In part because America is listening and allies are increasing. In part because this is our moment of greatest peril. And in part because the stakes are so great.

What is at stake in this civil rights and human rights moment?

If this struggle for same-sex couples’ freedom to marry were “just” about gay people, it would be important—for gay men and lesbians, bisexuals, transgendered people, and our non-gay brothers and sisters are human beings, who share the aspirations for love, companionship, participation, equality, mutual caring and responsibility, protections for loved ones, and choice.

Yes, if this struggle were “just” about gay people, it would be important—but it is not “just” about gay people.

If this struggle were “just” about marriage, it would be important—for marriage is the gateway to a vast and otherwise largely inaccessible array of tangible and intangible protections and responsibilities, the vocabulary in which non-gay people talk about love, clarity, security, respect, family, intimacy, dedication, self-sacrifice, and equality. And the debate over marriage is the engine of other advances and the inescapable context in which we will be addressing all LGBT needs, the inescapable context in which we will be claiming our birthright of equality and enlarging possibilities for ourselves and others.

Yes, if this struggle were “just” about marriage, it would be important, but it is not “just” about marriage.

What is at stake in this struggle is what kind of country we are going to be.

Is America indeed to be a nation where we all, minorities as well as majorities, popular as well as unpopular, get to make important choices in our lives, not the government—or a land of liberty and justice only for some?

Is America indeed to be a nation that respects the separation of church and state, where government does not take sides on religious differences, but rather respects religious freedom while assuring equality under the law—or a land governed by one religious ideology imposed on all?

Is America to be a nation where two women who build a life together, maybe raise kids or tend to elderly parents, pay taxes, contribute to the community, care for one another, and even fight over who takes out the garbage, are free and equal—or a land where they can be told by their government that they are somehow lesser or incomplete or not whole because they do not have a man in their lives?

All of us, gay and non-gay, who share the vision of America as a nation that believes that all people have the right to be both different and equal, and that without real and sufficient justification, government may not compel people to give up their difference in order to be treated equally—all of us committed to holding America to that promise have a stake in this civil rights/human rights struggle for the freedom to marry.

And if we see every state, every methodology, every battle, every victory, and even every defeat as part of a campaign—and if we continue to enlist non-gay allies and voices in this campaign, transforming it into a truly organic movement for equality in the grand American tradition, we will move the middle; we will lose forward where necessary; we will empower the supportive; and we will win.

We are winning.

There is no marriage without engagement.