James Esseks [JE]: Hi everybody. Mary and I thought that since we work together all the time, we would go back and forth to talk about the evolution of the marriage equality movement. We're going to try and cover a lot, and it's going to be a bit of a mad dash, but we will do our best to make it comprehensible. We've both been doing this for a long time but Mary has really been doing this for a long time. Mary, you've been gay for pay for how many years?
Mary Bonauto [MB|: Twenty-four later this month.
JE: And I'm only at thirteen, so I'm a youngster here. Mary actually is one of the people who created the modern Freedom to Marry movement. And so, in our tour through the marriage equality movement, we will begin with the early days and talk about how this got started. What's the plan, is there a plan, was there a plan? We'll then turn to the Defense of Marriage Act, (1) why it's a problem, what the plan was for getting rid of it, and then the Windsor (2) decision and a little bit about Windsor implementation.
Then we're going to talk about the current kind of crazy landscape that we're in at the moment. And how we may get to the Freedom to Marry in all fifty states. And then, if there is time, a little bit on the religious liberty, religious exemptions, license to discriminate aspect of the issue as it is showing up in the LGBT rights space.
MB: Although we were asked to focus on litigation, it's hard to focus exclusively on litigation because ideally you will first create a climate of receptivity for litigation. Both the public and the courts need a problem to be defined in both head and heart terms so they can understand the litigation is responding to and resolving real problems. So litigation works with public education, and whatever else may be happening in the culture and legislative branch.
So in this movement--like there was Roe (3) in the abortion rights context--there is Hawaii in the marriage context as a cultural turning point. Everyone was extremely surprised in 1993 when the Hawaii Supreme Court suggested that the state's marriage restriction was discriminatory based on sex and remanded to the trial court for the state to try to demonstrate its compelling interest in discriminating based on sex. (4) But even as Congress passed the Defense of Marriage Act shortly after the decision, so, so many good things came out of the case. In particular, the Hawaii case sparked a national conversation about the freedom to marry, government discrimination against gay people's families, and why marriage matters. But I will just say that I guess, as you know, the old person in the room--
JE: The experienced person.
MB: One overlooked point of Hawaii is that it was driven by the grassroots. Constituent pressure, if you will, has been important in advancing marriage all along. Even on my first week on the job at GLAD in March of 1990, I was approached by a couple from western Massachusetts who had been together ten years and wanted to get married. And I said, "I really understand, and of course you're totally right, but no. Not now." And I had those conversations many times with many people, because being right is not enough to get to a win, or to sustain a win. Timing matters. On marriage, there was so much to do in order to move the culture and the law to a place where people could even meaningfully engage with the issues.
Long before Hawaii, couples inspired by the Supreme Court's 1967 ruling in Loving v. Virginia filed marriage cases as well. (5) Nancy Polikoff and David Chambers have described the incredulous tone of the judicial opinions in those 1970s cases--each upholding the exclusion--as though a man was seeking the right to get pregnant. (6) Twenty years later, when Hawaii was the focus, marriage for same-sex couples was still an oxymoron, considered absurd, and most mainstream newspapers referred to marriage in quotes. We might have been claiming the language of marriage, but to most it was just impossible and unimaginable. So Hawaii was essential in terms of re-launching the conversation, because you have to start somewhere, and also because there were definite accomplishments in that litigation, too.
When Hawaii was marooned by events there, GLAD and two local attorneys--now Vermont Supreme Court Justice Beth Robinson and attorney Susan Murray--teamed up to bring a marriage case in Vermont in July of 1997 that we had been discussing and planning for several years. This was before any state had any legal status for same-sex couples, and certainly before we had any kind of comprehensive status for our families. (7) The "reciprocal beneficiaries" status came into effect in Hawaii July of '97, (8) after we had filed in Vermont. That, too, was significant because it showed how marriage could leverage our opponents to relent on their previous hard line stance of conceding nothing that would legally acknowledge our relationships. My recollection of Hawaii is that some of our opponents wanted to say they were reasonable by giving gay people something, but not something that was akin to marriage or something only for same-sex couples. So we would hear from them, "We are humane, and we don't want to discriminate," but all the while they maintained the discriminatory system and provided a tiny little package.
So ultimately GLAD filed marriage litigation in Vermont in 1997, and Massachusetts in 2001, and Connecticut in 2004. (9) These were each state constitutional cases because we wanted the focus to be on the State's decisions about how to treat people. In other words, "This is about Vermont. This is about Massachusetts. This is about how we treat people fairly in our state." We also did not want to federalize the issue at that time but instead to break through the historic barriers, get to a win and hold it, and show everyone what it looked like when same-sex couples married. Our hope was that judicial wins would lead to other wins, including legislative victories. Over time, we would develop a patchwork where some states allowed marriage, even as others didn't, and get to a point where we could ask for a national resolution. As the final arbiter in our national system, that most likely means the Supreme Court, because people should be treated equally by their government, and have this freedom of choice nationwide, no matter where they live.
So rather than go to federal court, where a ruling can affect multiple states or even the whole nation, we started litigation under state constitutions, some of which are more rights-protective than the U.S. Constitution, and where state courts would not have to worry about whether they were in or out of step with the Supreme Court. And for GLAD, it's always been extremely important to make sure that all three branches of government and the all-important "court of public opinion" participated in the discussion. Not just when the case was filed, but beforehand.
In each of those states, we worked in advance to ensure that people understood the realities of gay people and same-sex couples, who were their neighbors and in their communities, and the harms coming to same-sex couples from official disrespect of their relationships. Ironically, losing cases could sometimes be helpful, such as when courts ruled that cities were barred from extending family health insuance policies to the families of their LGBT employees and the state legislature wouldn't fix the underlying law. It wasn't great, but those cases could be used to say, "See! You think we can just enter into some private agreements and we'll be all set. We can't even get health insurance for our families!!" JE: And it happened a lot.
MB: And it happened a lot. The one other predicate I want to mention is the plaintiffs, who are the heart and soul of a case. They are the ambassadors to the public, helping people connect the dots as to why the laws must change. We can never thank them enough for courageously stepping up and then being so vulnerable and honest. When we filed in Vermont, we had three couples who were distinctly different from each other, but all from the same geographic area around Burlington. Stan Baker and Peter Harrigan, Lois Farnham and Holly Puterbaugh, and Stacy Jolles and Nina Beck--so beautifully conveyed the love and commitment infusing their desire to marry.
Thirteen months after oral argument, the court ruled in December 1999, and surprised us by saying in effect, "You didn't really ask for marriage, you asked for all the protections and obligations of marriage," and so the legislature can decide how to extend those to same-sex couples. (10) Happy as I was that we had a path forward, I was stunned by the court's assertion that the plaintiffs had not sought marriage, as we had certainly briefed it. We also didn't understand how you could separate marriage from the legal incidents accompanying it or the suggestion that it might be permissible to perpetuate the marriage exclusion and supposedly "remedy" that exclusion with something else. The Baker decision was the first to say that same-sex couples had to have the same benefits, protections and obligations as others, and requiring the legislature to address the issue (11) led to neighbor-to-neighbor and statewide conversations about marriage, in local communities and in the state legislature. At the legislature's public hearings, the State House was overflowing even in the middle of ice storms.
After the Baker ruling, I realized it would have been helpful to have plaintiffs from diverse geographic areas in the State, so when GLAD filed Goodridge (12) in Massachusetts, we had terrific plaintiffs in each of the big media markets. We needed the case to have a variety of plaintiffs with diverse demographics. A huge part of the plaintiffs' role was telling their personal story about who they were as a family, why they wanted to marry, and why it mattered to them. A mix was helpful because viewers and readers would have various...