Q. & A.: Evan Wolfson on Winning the Gay-Marriage Fight
This article by Richard Socarides was originally published on December 2, 2013 in The New Yorker. Read the full article here.
In 1993, the Hawaii State Supreme Court issued a ruling in the case of Baehr v. Miike that seemed to clear the way for same-sex marriage. It was quickly constrained by the state legislature, and it would be another decade before the first state—Massachusetts, about as far from Hawaii as one can get—adopted marriage equality.
One of the lawyers who worked on the Hawaii case was Evan Wolfson. For the past twenty-five years, Wolfson, the founder and president of the nonprofit group Freedom to Marry, has been at the center of this rapidly growing political and social movement. Recently, as Hawaii finally joined the ranks of states (sixteen in all) with same-sex marriage—the weddings began Monday—I talked with Wolfson about the victories so far and how much longer it might take for there to be full national marriage recognition. Here is an edited and condensed version of our conversation.
Why was winning marriage equality in Hawaii so important?
Hawaii is, of course, the state where it all started, and it’s especially sweet to bring the freedom to marry home after twenty years of work.
How did you originally become involved in the fight for marriage rights in Hawaii?
I was initially approached probably in around 1990 by the plaintiffs, who were looking to file a case. They came to me through mutual friends. I was already known as the lead advocate within the movement. I had written my law-school thesis back in 1983 on gay people and the freedom to marry and had argued that we should engage. I thought it could be a transformative engine of change, that it would transform people’s understanding of who we are, and that it would bring about many of the gains we were seeking, ending discrimination and allowing for full participation in society.
You helped win a huge court victory in that Hawaii case twenty years ago, making it seem, for a while, that it would be the first state with marriage equality. What do you say to people who say that the success you had, although quickly limited by the state legislature, was responsible for the backlash that caused Congress to pass the Defense of Marriage Act?
I like to quote Martin Luther King, who, when asked a similar question, wrote, and I paraphrase, I hate the word “backlash.” “Backlash” falsely conveys the idea that everything was just fine and then those of us who are fighting for social justice somehow went too far and the other side reacted. In fact, what’s going on is a struggle between two very different visions, about what kind of country we should have and who should be able to fully participate in it. Those of us seeking the freedom to marry didn’t cause the oppression; we are overthrowing it.
What do you see as the most important events over all in the marriage movement?
Our big breakthrough was when we actually won the freedom to marry in the first case to go all the way, which was the Goodridge case in Massachusetts, in 2003. Making it real was always the first objective. Once people could see with their own eyes that families were helped and no one was hurt, hearts and minds would begin to change, and sure enough they have.
The next big milestone was winning the freedom to marry in California and then losing it. And the blow of Prop. 8, which was a real wake-up call, both to many gay people, who had been unnecessarily overconfident and complacent, and to lots of non-gay people, who were really shocked into an awareness of how unfair the exclusion was when they saw marriage stripped away.
And then the next big milestone, the next big turning point, was New York. It really signalled how the political center of gravity was beginning to shift in our favor.
Were you surprised that President Obama’s support for marriage equality had such a big impact?
I actually was surprised that it had even more of an impact than I had expected. We had worked very hard to encourage him to complete his journey, his evolution, as he put it, and I knew it would be important, but it turned out to be even more important, even more of a permission-giver than I had expected. It generated tremendous dynamism among millions of Americans to move in support, and that contributed to the next big milestone, which was to show that we could win at the ballot, which we did in 2012.
And then there was the big win at the Supreme Court, in overturning the Defense of Marriage Act?
It signalled to the country, the Supreme Court legitimizing the freedom to marry and working to fulfill the Constitution’s command, but it also transformed the federal government from the No. 1 discriminator against gay people to now putting its moral and legal weight on the side of our families.
You criticized the approach taken by the plaintiffs’ counsel, Ted Olson and David Boies, in the California Proposition 8 litigation early on. Have you changed your view?
We have always said that the way we are going to finally win the freedom to marry is to have the Supreme Court bring the country to national resolution. But the way you set the stage for the Supreme Court to finish the job is by winning a critical mass of states and a critical mass of public support, and that’s what we have been building toward and what we need to continue doing. When the case was announced, it was a bit of an effort to jump the strategy. They just wanted to quickly get to the Supreme Court. But fortunately, as the case had its twists and turns, it allowed for more time. That enabled us to continue working the strategy. And grow a national majority. All of which added tremendously to the climate in which the case did eventually reach the Supreme Court.
And, of course, we didn’t fully have the critical mass needed, and the Court did not hand us the national win we wanted, although it certainly did very important positive things.
When do you think the Supreme Court might rule that there is a federal constitutional right to same-sex marriage?
Nobody can answer that precisely. There are now some forty-four cases in nineteen or twenty states moving forward. And one of them may be the case, or it may be some other case down the road. We can encourage the Court to take the right case at the right time and do the right thing—within a matter of years, not decades.
A lot of people now say this is inevitable; it’s a done deal. What do you say to those people?
You know, ten minutes ago many of those same people were saying it was impossible. Now they are saying it’s inevitable. The truth of the matter is: it was never either. Let’s not leave out the part where we do the work and actually win. We can win, and we will win. Our job is to make it happen as soon as we can.