Georgetown Law School – Hart Lecture
Washington, D.C. -- September 28, 2016
The Freedom to Marry Win:
Transformation and Triumph to Celebrate,
Lessons to Adapt and Apply
Full text of Evan's speech:
I am honored to have been invited to give this year’s Hart Lecture, joined here by my friend, Dean Treanor, my colleagues on the Georgetown Law School faculty, and so many students, including leaders of OutLaw. When I was a young attorney tackling the fight for LGBT rights and inclusion, “Georgetown” to me was a case – one of the early precedents – a battleground for our beleaguered and growing movement. We won that case and kept on going… and now for me, Georgetown is a community, happily one committed to inclusion and advancement, one I am proud to be part of as a Distinguished Visitor from Practice. And today I can begin by speaking of another case, and great advances and growing inclusion.
On June 26, 2015, the U.S. Supreme Court affirmed the freedom to marry for same-sex couples, reflecting a transformation in hearts and minds and in the law. This victory brought affirmation, security, dignity, and happiness to millions, same-sex couples, our children, our parents, our friends and families. It was a vindication of America’s promise, a resonant example heard round the world of the United States living up to its human rights ideals. And the victory marked a resounding triumph for our campaign to win marriage nationwide. More than a million gay people are now legally married in the United States, and the gays have not used up all the marriage licenses. There is still plenty of marriage for everyone to share.
It was one of Freedom to Marry’s core messaging principles to show, not just tell. And so let me begin by sharing with you the brief first shown at Freedom to Marry’s Victory Celebration on July 9, 2015. We gathered over 1000 advocates and supporters from around the country, including Vice President Joe Biden.
VICTORY CELEBRATION VIDEO
[see script appended below]
As the video shows, gay couples have been seeking the freedom to marry for a very long time. This was not an overnight victory. It was the product of more than 40 years of work, sacrifice, loss, struggle, and hope.
I myself – as you saw in the video (back in my “hair days”) – have been working to advance LGBT freedom, rights, and inclusion, including the freedom to marry, for quite a long time.
In 1983, I wrote my law school thesis on gay people and the freedom to marry. The paper had two major themes: Gay people should have the freedom to marry, and we should fight for the freedom to marry. I argued:
Marriage is important. Being denied marriage is wrong. The unfair denial harms gay people and our families. There is a pathway to victory under the Constitution’s guarantee of human rights – and therefore we should have the freedom to marry.
We should go for it. Fighting for the freedom to marry would be claiming a vocabulary of love, commitment, inclusion, connection, family, dignity and equality. That marriage vocabulary would be an engine of transformation helping non-gay people better understand who gay people are and why discrimination and exclusion are wrong.
Although I was early, and tenacious, I was not the first person to advocate for the freedom to marry. In my 1983 paper I was writing about cases that came more than 10 years earlier.
We usually (somewhat erroneously) mark the 1969 Stonewall rebellion in New York as the beginning of the modern global LGBT movement.
The first wave of freedom to marry litigation came in the immediate aftermath of Stonewall, with major cases brought by couples seeking the freedom to marry across the US. One of those cases even reached the U.S. Supreme Court in 1972. All were rubberstamped away. The Supreme Court didn’t even bother to write an opinion; it threw us out with one sentence: “The appeal is dismissed for want of a substantial federal question.”
The courts – and the country – were not ready; there had not yet been enough conversation.
So how did we go from the Supreme Court’s getting it wrong in 1972, to victory in the Supreme Court in 2015?
To read the full story, I encourage you to go to Freedom to Marry’s legacy website – with stories, resources, and lessons – at www.freedomtomarry.org
The short answer, though, is that we won marriage nationwide by bringing together four key ingredients: the Constitution, a movement, a strategy, and a campaign.
We won under the Constitution, of course – our nation’s promise of freedom, equality, dignity, and the rule of law. We needed the Constitution and the imperfect but real access to law and political change that we Americans are lucky to have.
But the Constitution didn’t just fulfill its own promise. It took, in addition, three more things. It required engagement of a multitudinous movement – so much work, sacrifice, trust, and hope to achieve this transformation, this triumph.
No one person alone, no one organization alone, no one state, no one case, no one methodology of social change, no one battle, no one year, no one decade alone did it. It took millions of conversations, millions of dollars, many organizations, and many battles that changed hearts and minds and helped the American people rise to fairness. A movement to move the country under the Constitution.
At the same time, this movement was not just a random series of episodes. There was, also, a strategy that we stuck with.
Not everyone necessarily knew there was a strategy, not everyone necessarily agreed with it. But a critical mass committed to – and came forward with – what was needed strategically to make the movement work of many amount to success.
I will say more about the specific national strategy we followed to win in a moment.
(1) The Constitution, (2) a movement, (3) a strategy, and (4) finally, a campaign created to drive that strategy and foster and leverage the movement. That campaign was Freedom to Marry, the organization I headed and recently closed. Freedom to Marry, the campaign, didn’t do everything – no one organization did. But one campaign organization – Freedom to Marry – woke up every day with the singular purpose of driving the strategy, making sure what it required was supplied, either by partners, allies, others, or ourselves. Unlike other organizations, Freedom to Marry didn’t only worry about the pieces it was doing – this court case, that state battle, an organizing effort. Freedom to Marry alone focused on the whole, shepherded key partners and pieces, filled in gaps, kept the collective eyes on the prize.
It was the combination of all of that – the Constitution’s human-rights guarantees, a decades-long movement, a successful strategy, a tenacious campaign – that delivered, through slow and steady successes and stumbles, as President Obama said, “justice, that came like a thunderbolt.”
So what was the strategy we followed here in the United States?
The strategy was that we would win by persuading the Supreme Court to get right what it got wrong in 1972.
Ours was not a secret strategy; it was on our website.We wanted people to understand the strategy, the pathway, and thus be inspired to bring their part to it. At Freedom to Marry we called the national strategy “the Roadmap to Victory.”
As you know, in our country, unlike most others, marriage licenses are issued by the states, not the national government. But states are bound by the Constitution, which provides a floor below which they may not go. So our strategy aimed for a ruling in the Supreme Court under the Constitution, bringing the country to national resolution.
That national strategy meant that we didn’t have to win every state, but we had to win enough states – and not every American had to be persuaded to support the freedom to marry, but enough Americans needed to be supportive to empower, embolden, and impel the Supreme Court to act.
The work was to create the climate that would get the decision-makers – elected officials, lawmakers, judges, and the justices of the Supreme Court – to do the right thing.
As we sketched it out in the Roadmap to Victory, we said we would work on 3 tracks to create the climate in which renewed litigation could succeed:
• Building a critical mass of states where couples could marry
• Building a critical mass of public support – growing a majority nationwide
• Tackling and ending federal marriage discrimination, making sure the federal government treated the couples who got married in states equally when it came to federal protections and responsibilities linked to marriage.
The progress and synergy on these three tracks would create the climate that would allow for a national ruling.
To achieve the critical mass of states and support, we developed numerous programs and partnerships to allow different organizations, millions of individuals, many methodologies of change (litigation, legislation, public education, direct action, electoral work, fundraising) to each bring their parts to the whole, delivering what was called for in the strategy.
For example, to build the critical mass of states our strategy required, we worked with and built campaigns to win in states:
• litigation wins where we could get them, as in states like Massachusetts and Iowa;
• When we couldn’t or didn’t win in court, legislative wins in epic battles that brought transformative victories, for example, in states where we had lost in court, such as New York;
• And, when blocked in courts and the legislatures through radical, unconstitutional Karl Rovian constitutional amendments, we learned how to win ballot-measure battles in which we, a small minority, persuaded majorities to vote to end discrimination. Our opponents had previously defeated us in 30-some ballot-measures; when we finally learned how to win and delivered victories in 4 out of 4 battles in 2012 – in Maine, Maryland, Minnesota, and Washington – we shifted the political center and signaled to the Supreme Court that it could proceed to strike down the federal so-called Defense of Marriage Act, which it did six months later.
As the video showed, each and every one of these barriers we were told we couldn’t overcome. We lost, rebounded, stuck with it, and learned how to win.
To build the critical mass of support called for in our strategy, we developed public education and organizing campaigns such as Mayors for the Freedom to Marry, Young Conservatives for the Freedom to Marry, and Southerners for the Freedom to Marry.
Movement partners targeted candidates in both parties, and in both parties worked to defeat some key marriage opponents. We did polling and enlisted messengers to communicate to right-of-center party leadership that they needed to allow members in swing districts to vote for the freedom to marry or risk losing their seats.
While making inroads and paving a pathway on the right-of-center, we didn’t neglect assisting – and putting pressure on – our left-of-center friends and political allies as well. For instance, through campaigns like “Democrats, Say I Do,” and our call for the freedom to marry plank in the Democratic Party platform – resisted even by some in our movement – we paved a pathway for President Obama to come out in support before his reelection in 2012. We enlisted voices to help push, and create space for, the President, making the case to the White House that, happily for him, doing the right thing was also the right thing politically.
When he did come out in support of the freedom to marry on May 9, 2012, before the election, President Obama’s moral leadership and personal, values-based explanation of why he changed his mind became a permission-giver that helped persuade millions of Americans to open their hearts and change their minds.
After painful losses in California in 2008 and then in Maine in 2009, Freedom to Marry led a collaborative movement effort to “crack the code” on how to reach the reachable-but-not-reached group of Americans who had not yet joined the majority. We figured out how best to make the case to those people, adding them to the numbers and growing support from 27% when I was doing that first-ever marriage trial in Hawaii in the 1990s to 63% when we finally came before the Supreme Court to press for a national ruling.
One excellent example of how we adapted our messaging to make the case in the way that the people we were working to reach needed to hear it was, again, the way President Obama explained his evolution and support to the American people. He spoke predominantly not as a lawyer, not as the commander-in-chief, but as a father, not making legal arguments, but, rather, sharing personal stories, talking about values.
We enlisted business voices, labor leaders, clergy, child-welfare and medical professionals, and even conservatives with “friend of the court” briefs, town hall meetings, media stories, and ads.
This work, this movement, this strategy, this campaign
• built the necessary critical mass of states and support
• overturned federal discrimination in 2013
• and, by 2015, showed the Supreme Court that – as our central narrative declared – “All of America is ready for the freedom to marry.”
Alongside that central reassurance, we never stopped driving another theme as well, highlighting to decision-makers, including the courts, that there was real urgency to end continuing discrimination that harmed real families – gay couples, their kids, their loved ones, their non-gay parents and co-workers – leaving no family, and no state, behind.
“America is ready,” we said, and “It’s time.”
The stories we generated and told – personal, authentic, local, and diverse –
• from gay people as well as non-gay people,
• hardship stories as well as stories of love and connection,
• “journey stories” of people changing their minds and coming to support
– we then amplified, and connected to the larger, national themes, narrative frame, and growing understanding.
I am sure you will have noticed that though this is the Hart Lecture at Georgetown Law, and though litigation was always central to our strategy, I haven’t talked a lot about legal doctrine or even legal work. This is to underscore yet again that to win in the law, we had to think and work beyond litigation and law.
In the two years leading up to our June 2015 national Supreme Court victory, our movement won more than 70 court rulings. Remember back in 1972 when we were losing all of them – and the losses we continued to endure in the 1970s, 1980s, 1990s, 2000s, and even a tiny handful in that last two-year run-up to the Court? As we crescendo’ed, more than 70 different courts – federal as well as state, appellate as well as trial, with judges appointed by Republican governors and presidents as well as Democratic – looked at the arguments and the evidence, and found there is no legitimate reason for the government to be excluding loving and committed same-sex couples from marriage.
Out of the nearly 100 or so cases we won over the decades, my favorite passage was from the case in which we brought the freedom to marry to ruby-red Utah, arguably the most conservative state in the U.S. The judge wrote: “It is not the Constitution that has changed, but our knowledge of what it means to be gay or lesbian.”
That passage encapsulated the movement’s national strategy and the essential work of winning. The legal arguments were the same those pioneers made in the 1970s, the same I had written as a young law student.
It wasn’t new arguments we needed; it was getting people to open their hearts, change their minds, and be willing to see what was always there – and the key engine of that change was conversation, getting people to talk about gay people, our lives, our love and commitment, our shared values, and how marriage discrimination affected us, our families, business, and the country.
As people around the world have begun talking and thinking anew, the progress in many countries is irrefutable and the momentum is there worldwide. We have many opportunities to advance abroad, and, of course, here in the U.S., where we have so much more to do.
We have won the freedom to marry in the law – outlier Kentucky clerks, Alabama justices (an oxymoron?), extremist Puerto Rico or Texas judges, and posturing presidential candidates and state legislators notwithstanding. But in many parts of the country, in much of the world, the marriage conversation has only just begun, only just arrived. The LGBT movement must continue to tap the transformative power of seeing couples marry – and the empathy and enlightenment that inspires.
The freedom to marry will be a gift that keeps on giving. Rather than check marriage off or just pivot to the so-called “next” thing, we must build on our momentum and harness the ongoing marriage conversation to the work that remains.
Notably, this remaining work includes political and legal priorities – for example, securing non-discrimination protections against discrimination based on sexual orientation and gender identity in other important areas of life, such as employment, housing, and public accommodations such as businesses, theaters, restaurants, and even restrooms. We still have no federal statute explicitly prohibiting such discrimination, no federal civil rights law expressly setting the right standard and providing guidance not just to punish discrimination, but to prevent it. The LGBT movement and its allies must work to pass laws at the local, state, and federal levels, and to secure legal protections in the courts, building on important steps forward by the EEOC and many businesses.
Even as the movement pushes forward, it must continue to beat back efforts to circumvent or undermine our advances through efforts to carve out licenses to discriminate – so-called religious exemptions – under the misleading banner of religious liberty.
To be clear, this is not a “backlash.” As Martin Luther King, Jr. said in a speech at Howard University 50 years ago, I hate the framing of “backlash,” so disempowering. What we see is the classic pattern of civil rights advance, the familiar tactic that is part of the contest, the struggle, between two different visions of what kind of country America is to be.
And in addition to the political and legal work, our movement must focus on cultural acceptance and personal embrace. That includes combating the bullying and homelessness, the sense of isolation and insecurity, that too many young people endure. We want all young people – no matter where they live – to feel safe and to dream big.
And we want to ensure as well that seniors can age with dignity and not be forced back into the closet because they can’t find support or facilities that will respect their love.
Our real goal, after all, is not just good law, but good lives.
As we shape new strategies and commit to new campaigns, the LGBT movement would do well to learn and adapt the model, playbook, and lessons from our freedom to marry campaign and our success, as well as our stumbles and missed opportunities.
The paramount lesson is the importance and power of conveying hope, and clarity.
My lodestar through the often-lonely years I preached that we should fight for marriage and could and would win was a quotation from a French suffragette, Hubertine Auclert, the woman who popularized the word “feminism”: “If you would obtain a right, first you must proclaim it.” Put forward your vision, and believe you can attain it.
The Freedom to Marry campaign and this movement succeeded because we believed we could win, and did a good job getting where we needed to be on what I call “the ladder of clarity”:
• clarity of goal
• clarity of strategy
• clarity of vehicles
• clarity of action steps.
Some of the other elements of success we got right included:
• campaign model
• entity driving the strategy, with central capacities
• a campaign that reflected what I called the 4 multi’s: multi-year, multi-state, multi-partner, multi-methodology
• national-federal-state synergy / a general philosophy of no false either-ors
• inclusive/welcoming, while also focused
We inspired people to believe,
• we laid out a pathway, the roadmap to victory,
• we propounded and stuck with our strategy,
• we sought and welcomed in new voices and new supporters,
• we persevered through stumbles and, where we couldn’t win, learned to at least “lose forward,”
• we worked across the political spectrum and generations,
• we built the needed collaborations and campaign and filled the gaps,
• we attracted and partnered with donors and funders to fuel the machine and water the field,
• we made the case in the court of public opinion as well as in the courts of law, and to elected officials and candidates,
• we underscored urgency,
• and we had confidence that others could and would rise to the better angels of their nature, and that the law would follow.
With our victories last year in countries as diverse as Ireland, Colombia, and the US (each with its own pathway), we now have the freedom to marry in 22 countries on 6 continents, up from 0 just 15 years ago.
1 billion people worldwide now live in a country where same-sex couples can marry, up from 0 just over 15 years ago. That’s approximately 15% of the population of the world.
Decades after we started, we – and our country, and love – won big. And now the work continues.
We have come a long way in 40 years, and yet, of course, there is a lot more to do. Affirming love – and freedom, inclusion, dignity, and equality – is something rule-of-law countries like the United States must do. With work to win the freedom to marry moving forward in countries as diverse as Australia, Austria, Chile, China, Cuba, Czech Republic, Italy, Japan, Korea, Nepal, Taiwan, and Vietnam – and urgent work needed to secure freedom and safety in countries as diverse as countries as Russia, India, Indonesia, Bangladesh, and Turkey, not to mention Saudi Arabia, Iran, Nigeria, and Uganda – countries like ours should be leading, not lagging. 15% is not 100%.
Fortunately, we have momentum going into the work ahead.
And more than that, we have the proof that hope and clarity can deliver, that people and the law can change, that love can win.
As Theodore Herzl put it, “If you will it, it is no dream.”
We celebrate winning marriage, and -- taking the lessons to heart -- stay engaged in the joy, the work, the obligation, the privilege of making a difference and mending the world. There is so much more to do – and, after all, what greater calling is there?