In­side the slow, strate­gic battle for mar­riage equal­ity

The Washington Post Sunday - - BOOK WORLD - SO­CI­ETY REVIEW BY E.J. GRAFF

In the late 1980s, a friend of mine got a call at work that, while on a busi­ness trip, his male part­ner had been shot and rushed to the emer­gency room. My friend then spent four hours on the phone with the hos­pi­tal, try­ing des­per­ately to per­suade them to tell him — a le­gal stranger, whose re­la­tion­ship he did not dare ex­plain — whether his beloved was dead or alive. Shocked, my own part­ner and I quickly bought a do-it-your­self le­gal book, typed up health-care prox­ies, went out to get them no­ta­rized — and en­dured the no­tary’s and wit­ness’s sneers and stares as they re­al­ized that we were queer.

All of which is to il­lus­trate how unimag­in­able, back then, it was to think about be­ing able to marry. In 1990, les­bians and gay men were pre­sump­tive felons in 25 states and the District of Columbia. If news­pa­pers men­tioned us at all, they called us “ho­mo­sex­u­als.” Men were dy­ing of AIDS and be­ing told they de­served it. The re­li­gious right was run­ning hor­ri­fy­ing bal­lot mea­sures against us in state af­ter state. Hun­dreds of thou­sands of us blurred our pro­nouns when talk­ing to co-work­ers and ducked fam­ily ques­tions about when we were go­ing to get mar­ried (“When hell freezes over, Aunt Jean. Can I bring my room­mate to Thanks­giv­ing again this year?”).

And yet by 2015, large swaths of Amer­i­cans, gay and straight alike, were up­set that same­sex cou­ples weren’t al­ready free to marry. What was tak­ing so long, went the re­frain, on a mat­ter of sim­ple and ob­vi­ous jus­tice? What the heck hap­pened in just 25 years? A lot hap­pened. Last year, in “The Gay Revo­lu­tion,” Lil­lian Fa­der­man gave us a broad and rol­lick­ing his­tory of what we now call the LGBT (les­bian, gay, bi­sex­ual and trans­gen­der) move­ment, re­veal­ing a vast and roil­ing land­scape of those who chal­lenged our ex­clu­sion from full cit­i­zen­ship and changed the world.

But even the rich­est his­tory of so­cial trans­for­ma­tion can’t show ev­ery­thing. Now re­searcher Nathaniel Frank fills in an in­dis­pens­able part of the story. “Awak­en­ing” re­ports metic­u­lously on the gay and les­bian lawyers who en­vi­sioned and ran the fight for mar­riage and the fun­ders who helped put the ef­fort over the fin­ish line, care­fully re­count­ing the le­gal ar­gu­ments and opin­ions all along the way. This book doesn’t paint the en­tire mar­riage fight; ground or­ga­niz­ing and leg­isla­tive bat­tles get short shrift. But Frank is cor­rect: The push for mar­riage equal­ity was pri­mar­ily con­ceived, led, man­aged and won by the move­ment’s le­gal ad­vo­cates, whose story he tells. As he puts it, mar­riage equal­ity ar­rived be­cause of the “in­cre­men­tal strat­egy that LGBTQ le­gal ad­vo­cates had for­mu­lated and re­fined over two decades: care­fully as­sess the le­gal land­scape; un­der­stand those you need to per­suade, in­clud­ing judges; build fa­mil­iar­ity [among the non­gay main­stream] with com­mit­ted same-sex cou­ples through dis­cus­sion and ex­po­sure to gay fam­i­lies; and ac­cu­mu­late state wins as build­ing blocks to na­tional mar­riage equal­ity at the right time.”

This is a broad mu­ral of col­lec­tive strate­giz­ing. Within that, the most credit goes to Evan Wolf­son, who — as­ton­ish­ingly — in 1983 wrote a vi­sion­ary law school paper, 141 pages long, ar­gu­ing that mar­riage rights had to be the cen­tral goal of the gay move­ment. At the time it seemed ridicu­lous. But he per­sisted — for decades. As a newly minted lawyer who found his way into a then-small cadre of full-time gay and les­bian civil rights ad­vo­cates, Wolf­son had to battle al­most uni­ver­sal op­po­si­tion to the pur­suit of mar­riage in the move­ment as a whole.

Why op­po­si­tion? There were two main lines of rea­son­ing. A lib­er­a­tionist/rad­i­cal fem­i­nist fac­tion re­jected what it saw as the con­fin­ing pa­tri­ar­chal in­sti­tu­tion of mar­riage; it wanted queers to be a rev­o­lu­tion­ary van­guard in­vent­ing new le­gal forms of fam­ily, not re­treat­ing into nor­malcy. Another fac­tion — call them the “whoa there, Nel­lie” folks — thought mar­riage might be a good goal some­day, but for God’s sake, not yet. Their oft-used metaphor was that mar­riage rights were the roof of a house — and the LGBT move­ment hadn’t even cleared the ground, much less built the foun­da­tion. Peo­ple were still get­ting fired or los­ing cus­tody of their chil­dren for com­ing out; aim­ing for mar­riage so soon would only bring on a back­lash and ugly case law, slow­ing progress.

All this got hashed out at the Gay Rights Lit­i­ga­tors’ Round­table, a lit­tle-known work­ing group that Frank re­veals as a crit­i­cal source of strat­egy, tac­tics and an in­ter­nal moot court test­ing ev­ery idea. For sev­eral years Wolf­son was ordered to stand down, stay­ing away from any po­ten­tial mar­riage cases. But in 1993, a rogue law­suit in Hawaii, brought by out­siders to the move­ment, was taken se­ri­ously at the Hawaii Supreme Court. Those jus­tices thought deny­ing mar­riage li­censes be­cause of gen­der smelled like sex dis­crim­i­na­tion — and sent the case back to trial un­der a higher standard. Wolf­son’s boss at the Lambda Le­gal De­fense and Ed­u­ca­tion Fund sent him to Hawaii to help run that ef­fort.

That hint of ho­mo­sex­u­als mar­ry­ing, com­ing just as Pres­i­dent Bill Clin­ton was try­ing to let les­bians and gay men serve openly in the military, started a fever­ish na­tion­wide de­bate — no, let’s call it a panic — about what peo­ple then called “gay mar­riage,” be­fore Wolf­son re­branded it “mar­riage equal­ity.” Reli­gious­right groups and Repub­li­can op­er­a­tives rushed to put ref­er­enda on bal­lots and bills in front of leg­is­la­tors to de­fine mar­riage as be­tween one man and one woman. By 1996, 26 states and the fed­eral gov­ern­ment had passed De­fense of Mar­riage Acts (DOMA) to pro­tect in­no­cent men, women and chil­dren from be­ing over­run by mar­ried ho­mo­sex­u­als, pe­dophilia, plague, in­cest, polygamy, bes­tial­ity and gen­eral

apoc­a­lypse — and no, I am not ex­ag­ger­at­ing about the rhetoric. Hawaii vot­ers passed one such mea­sure, moot­ing the Hawaii law­suit.

But by then Wolf­son had a part­ner in Mary Bo­nauto, civil rights di­rec­tor at New Eng­land’s Gay and Les­bian Ad­vo­cates and De­fend­ers, who quickly be­came the move­ment’s chief mar­riage lit­i­ga­tor. They won over the rest of the le­gal round­table to what be­came their state-by-state im­pact lit­i­ga­tion strat­egy: care­fully iden­tify states where there was al­ready a strong foun­da­tion of laws and court rul­ings in fa­vor of LGBT rights, and where the con­sti­tu­tion was hard to amend; bring law­suits un­der the state con­sti­tu­tion, never im­pli­cat­ing the fed­eral gov­ern­ment; work closely with the statewide in­fra­struc­ture of LGBT ac­tivists and power bro­kers to pre­pare for and pro­tect any win; and chlo­ro­form — er, per­suade — in­di­vid­ual rogue plain­tiffs not to bring mar­riage law­suits in states where they’d al­most cer­tainly lose, leav­ing be­hind trou­ble that would be hard to clean up.

It was a win­ning strat­egy, es­pe­cially as car­ried out by Bo­nauto, who suc­cess­fully plot­ted the law­suits and mar­shalled the ef­fort to win the first break­throughs: civil unions in Ver­mont in 2000; mar­riage in Mas­sachusetts in 2004; mar­riage in Con­necti­cut in 2008. Wolf­son, mean­while, backed by vi­sion­ary fun­ders, launched a na­tional or­ga­ni­za­tion to sup­port ac­tivists who wanted to pre­pare the way for mar­riage in their own states. For sev­eral years he seemed to be ev­ery­where, speak­ing and writ­ing in­ces­santly, fundrais­ing and or­ga­niz­ing, urg­ing the troops on­ward, ex­hort­ing us all to do our part to win in pub­lic opin­ion as well as the courts.

While the round­table strat­egy was win­ning, Cal­i­for­nia be­came proof that the im­prov ap­proach — let’s do it be­cause it’s right! — made a big mess. In 2004, the straight mayor of San Fran­cisco, act­ing with no le­gal author­ity and with­out con­sult­ing any LGBT ad­vo­cates, started mar­ry­ing same-sex cou­ples. While the lines to city hall to marry were long and giddy, those mar­riages’ le­gal sta­tus was en­tirely un­cer­tain. Cal­i­for­nia had passed a De­fense of Mar­riage Act in 2000. And so those rogue mar­riages set off a cas­cade of com­pet­ing law­suits, state court de­ci­sions, another ref­er­en­dum, and still more law­suits and state and fed­eral court de­ci­sions. Fi­nally an im­pa­tient young ac­tivist named Chad Grif­fin met with some rich, straight Hol­ly­wood lib­er­als and brought to life the le­gal round­table’s night­mare: a law­suit in fed­eral court claim­ing that it was un­con­sti­tu­tional to deny same-sex cou­ples the right to marry. Repub­li­can le­gal big shot Ted Ol­son teamed up with Demo­cratic le­gal big shot David Boies in hopes of gal­lop­ing to the Supreme Court with

Hollingsworth v. Perry, which sought a rul­ing akin to Lov­ing v. Vir­ginia on in­ter­ra­cial mar­riage, striking down ev­ery ban on mar­riage equal­ity in the coun­try at one blow.

For­tu­nately, Bo­nauto had al­ready filed a more sen­si­ble and re­strained fed­eral law­suit that chal­lenged the fed­eral DOMA on be­half of cou­ples mar­ried in Mas­sachusetts who were de­nied the fed­eral recog­ni­tion that all other Mas­sachusetts mar­rieds got. That law­suit was soon joined in the fed­eral sys­tem by sim­i­lar DOMA chal­lenges. “Awak­en­ing” ex­plains clearly why so many of us were re­lieved when, once at the Supreme Court, Perry was de­cided on very nar­row grounds, let­ting Cal­i­for­ni­ans marry but not tax­ing the jus­tices to de­cide the con­sti­tu­tion­al­ity ques­tion just yet. Mean­while

Wind­sor v. United States, which chal­lenged only the De­fense of Mar­riage Act, won.

And as Frank de­tails, the suc­cess of Wind­sor set off a flurry of chal­lenges ev­ery­where in the coun­try. Within two years, all those DOMAs had crum­bled into dust, blown away by the Supreme Court declar­ing a fed­eral free­dom to marry.

It turns out that while the whoa-Nel­lies had been right about the back­lash, Wolf­son and oth­ers of us had been equally right about how mar­riage rights would trans­form un­der­stand­ing of les­bians and gay men. Mar­riage made us so­cially com­pre­hen­si­ble to those around us, vis­i­ble within the struc­ture that or­ga­nizes so much of our cul­ture. We weren’t just peo­ple who had yucky sex; we were mar­ried or sin­gle, par­ent­ing or child-free, wid­owed or di­vorced, peo­ple who fell in love and or­ga­nized our lives around the re­sult­ing com­mit­ments. Those who wished to re­ject mar­riage be­cause it was con­fin­ing or pa­tri­ar­chal or what have you could still re­ject it — just as sim­i­lar straight cou­ples did.

“Awak­en­ings” isn’t per­fect. It starts too early, spend­ing too many in­dif­fer­ent pages sketch­ing the LGBT move­ment’s back­ground. It misses the vast up­ris­ing of or­di­nary les­bians and gay men who pushed their re­luc­tant lead­ers to fo­cus on mar­riage. It doesn’t show the ug­li­ness of the at­tack ads against mar­riage, the front­line fights to win state cam­paigns and change leg­isla­tive minds, the bit­ter in­ter­nal di­vides about how to run those cam­paigns, or the break­through door-to-door strat­egy and tele­vi­sion ads that fi­nally turned the tide.

Most puz­zlingly, this is a book about mar­riage that lacks per­sonal sto­ries. For so many of us, the mar­riage fight was in­tel­lec­tu­ally thrilling and emo­tion­ally ex­plo­sive, pas­sion­ate and per­sonal, com­plete with ex­treme swings of emo­tion, hope and ter­ror, ex­hil­a­rat­ing wins and de­spair­ing losses. I re­mem­ber sit­ting in the Supreme Court press gallery for the Perry and Wind­sor cases, and look­ing down at rows of the le­gal round­table — our su­per­heroes, our gods and god­desses — fill­ing rows at the court as hon­ored guests, while the dig­nity of our lives was fought out in the glad­i­a­tors’ arena we call a court­room. Such heart-stop­ping mo­ments aren’t cap­tured in this book’s care­ful aca­demic prose.

But I don’t want to make the mis­take of re­view­ing a book the author didn’t in­tend to write. Frank gets it down and gets it right. He has clearly mas­tered ev­ery doc­u­ment, in­ter­viewed ev­ery prin­ci­pal, de­tailed ev­ery le­gal ar­gu­ment and given credit where it’s due. His book is the text from which other his­to­ries will be writ­ten, and the text­book from which fu­ture im­pact lit­i­ga­tion and ad­vo­cacy will be planned.

Mar­riage rights trans­formed un­der­stand­ing of les­bians and gay men, mak­ing us so­cially com­pre­hen­si­ble to those around us.

AWAK­EN­ING How Gays and Les­bians Brought Mar­riage Equal­ity to Amer­ica By Nathaniel Frank Belk­nap. 441 pp. $35

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