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Evan Wolfson: Ever the advocate — Wolfson has spent all his career fighting for marriage equality

SAN FRANCISCO, August 3, 2004 - Gay marriage advocate Evan Wolfson grappled early with the topic that would consume his career.

When he was 12, he told his mother, "I don't think I'll get married."

Instead, the New York-based attorney relates in a new book, he grew up fighting relentless court battles to legitimize same-sex nuptials. Now 47, Wolfson is set to speak today at a noon Bar Association of San Francisco public affairs forum at the Omni Hotel. The Harvard Law School graduate is in the Bay Area to promote his book, "Why Marriage Matters: America, Equality and Gay People's Right to Marry."

For Wolfson and his partner, a molecular biologist, the movement looks like a patchwork quilt.

"It's the classic American pattern of civil rights change," he said in a telephone interview last week. "Some states move forward faster, some regress. Some political leaders show profiles in courage, like [San Francisco Mayor] Gavin Newsom. Some pander, like [Massachusetts Gov.] Mitt Romney, standing in the doorway, blocking equality." Wolfson's long campaign began with pioneering litigation in the early 1990s on behalf of three gay and lesbian Hawaii couples over the right to wed. Their court wins and setbacks foreshadowed the national debate currently under way.

The struggle has made Wolfson enemies on the political right, brought him hostility from some black leaders and raised doubts even within his own gay rights movement.

Ever optimistic, Wolfson said he believes his critics aid his cause.

"Even if people don't completely agree with what I say," Wolfson said, "when they hear the bigotry from the other side they invariably move closer to my position."

Nothing polarizes opinion about the former Lambda Legal Defense lawyer more than claims by admirers that Wolfson's skill at legal strategizing makes him the gay movement's Thurgood Marshall.

Wolfson takes the criticism and the cheers in stride as he oversees the new group he founded, Freedom to Marry.

"I'm not the one to draw those comparisons," he said. "It's presumptuous."

Analogies to Marshall, the NAACP legal legend who won Brown v. Board of Education, 347 U.S. 483 (1954), and went on to become the first black U.S. Supreme Court justice, offend many.

The Brooklyn-born Wolfson has forged alliances with civil rights leaders Coretta Scott King, John Lewis and the Rev. Al Sharpton.

Yet critics denounce Wolfson's vision of the gay rights movement as a logical sequel to the struggle to end racial segregation.

Gay activists "are trying to hijack the moral capital of the black civil rights movement and use it to force society to affirm their behavior, regardless of other people's moral beliefs about it," said gay rights opponent Robert Knight.

Knight, the director of the Washington, D.C.-based Culture and Family Institute, is an outspoken adversary of what he terms "the homosexual agenda."

Wolfson has debated Knight and quotes him in his newly published book. Said the Rev. Gregory Daniels, a black Baptist minister from Chicago, in another comment Wolfson quotes: "If the K.K.K. opposed gay marriage, I would ride with them."

So it's surprising that another foe, Jay Alan Sekulow of the American Center for Law and Justice, a religious liberties lobby, agrees there are parallels between Wolfson and Marshall.

"He has the qualities Thurgood Marshall displayed," said Sekulow, chief counsel to the Virginia Beach, Va.-based group who has opposed Wolfson in court. "He's very pragmatic, he doesn't push the envelope, he didn't go for the brass ring on the first case that came along and he accepts defeat with dignity.

"Anyone who underestimates Evan Wolfson is making a big mistake."

Wolfson routinely finds plusses in setbacks, as when Lambda and allies such as the American Civil Liberties Union in the early 1990s were torn over whether to confront marriage discrimination in court. "There was a strong concern that we were trying to do too much too soon," he said in the interview.

"Because of these divisions, I was not allowed to take the case" of three Hawaiian same-sex couples who wanted to marry and asked him to be their lawyer, Wolfson notes in his book.

When Lambda declined the Hawaii case, another lawyer had to be found to be lead counsel, though Wolfson remained close to the litigation. "That turned out to be one of the luckiest days in our civil rights history because it brought the couples and local activists to Dan Foley," Wolfson writes.

Foley was a straight civil rights lawyer in Honolulu who in 1991 enthusiastically took up a challenge to state officials who refused to issue same-sex couples marriage licenses.

Two years later, as the case neared a landmark success in the Hawaii Supreme Court, Lambda allowed Wolfson to join Foley as co-counsel. "By the end of our work together, I had a new non-gay brother," Wolfson writes. Foley "exemplifies the crucial role that non-gay people can and must play in ending discrimination against gay Americans, discrimination unworthy of our country."

Wolfson predicted during the Hawaiian case that other heterosexuals would significantly advance the same-sex marriage cause. So he wasn't surprised when San Francisco's mayor re-energized the debate in February by ordering the city clerk to issue marriage licenses to same-sex couples. Litigation over that move is now before the California courts.

"Absolutely I foresaw a Gavin Newsom-type thing," Wolfson said. "I always believed that non-gay people would come into the mix and make it a true movement. Dan Foley role-modeled that."

Foley is now a judge on Hawaii's appellate bench, named to the post in 2000 by Gov. Ben Cayetano. The governor's appointment message praised Foley's engagement with the controversial campaign. "His stand on legal issues, regardless of whether politically popular or not, speaks volumes of the courage and commitment he will bring to the Intermediate Court of Appeals," Cayetano said. In a phone interview from his Honolulu chambers last week, Foley echoed Wolfson.

"He's like a brother to me," Foley said, adding that comparisons between Wolfson and Thurgood Marshall are appropriate. "Even gay groups were not behind our case until 1993," he recalled. "People thought it was a pipe dream. Then Evan started networking, looking at cases and keeping his eye on where he wanted the gay rights movement to go.

"As in any chess game he was making the first few moves while he was thinking about the last few moves."

That was the kind of strategizing Marshall employed in litigating cases for the National Association for the Advancement of Colored People, said Foley, who described himself as a student of Marshall's career.

He sees an intriguing nexus linking Marshall, Hawaii and the joining of same-sex marriage advocacy to the push against racial discrimination.

In 1987, just three years before the Hawaii couples began looking for a lawyer, Marshall spoke on Maui at a meeting of the San Francisco Patent and Trademark Law Association.

Avoiding the patriotic rhetoric associated with the U.S. Constitution's bicentennial, Marshall instead pointed out that the nation's founding document was the product of a damaging compromise between Southern slaveholders and New England commercial interests. The effects of that compromise, Marshall said, have remained for generations.

"They arose from the contradiction between guaranteeing liberty and justice to all, and denying both to Negroes," he said. Wolfson and Foley find encouragement for the gay rights movement in Marshall's view of constitutional law as an evolutionary force in the fate of black Americans.

What Marshall said of black people, they believe, applies equally to couples of the same gender:

"They were enslaved by law, emancipated by law, disenfranchised and segregated by law; and, finally, they have begun to win equality by law," Marshall noted in his Maui speech. "Along the way, new constitutional principles have emerged to meet the challenges of a changing society. The progress has been dramatic, and it will continue."

When the Hawaii Supreme Court in 1993 looked at the case brought by Foley and Wolfson, it saw it in similar terms.

Justice Steven H. Levinson wrote in the majority opinion that "marriage is a basic civil right."

The ruling reversed a trial court's dismissal of the couples' complaint and held that discrimination against same-sex couples who wish to marry was unconstitutional unless the Hawaii Department of Health could show "a compelling state interest" for such bias. Baehr v. Lewin, 74 Haw. 530 (1993).

After a trial on that issue in 1996, Judge Kevin Chang of the First Circuit Court of Hawaii rejected the state's argument that same-sex marriage should be outlawed because "a child is best parented by its biological parents living in a single household."

Wrote Chang in an order telling the state to stop blocking same-sex couples' freedom to marry, officials failed to present "sufficient credible evidence that demonstrates that the public interest in the well-being of children and families, or the optimal development of children would be adversely affected by same-sex marriage."

Hawaii voters and lawmakers undercut that victory. Wolfson writes that opponents from around the United States funded a multimillion-dollar lobbying campaign that persuaded the legislature in 1998 to ratify an exception to the state's equal protection clause barring same-sex marriage.

The Hawaii Supreme Court's final word on the case in 1999 yielded to the lawmakers and reversed Chang. The list of amici on the opinion is longer than the text of the ruling, illustrating the passions the case aroused.

Sekulow weighed in to oppose Foley and Wolfson. So did the Church of Jesus Christ of Latter-day Saints, the Hawaii Catholic Conference and lawyers for a host of other religions.

"But in 1993 the world changed, whatever the outcome," because the case reached the courts, Wolfson insisted.

A signal of that change appears in the 1999 Hawaii Supreme Court opinion. One justice notes that the 6th edition of Black's Law Dictionary in 1990 defined marriage as the "legal union of one man and one woman as husband and wife."

Last month West Group published the 8th edition of Black's. In it, the definition of marriage, like the legal landscape, has changed. It is now "the legal union of a couple as husband and wife." The new Black's also includes for the first time definitions for "civil union and "same-sex marriage."

Those changes could also revise the line Wolfson delivered to his mother when he was 12. Now he and his partner can see marriage looming on the horizon as a real possibility.

Instead of "never," marriage is now a "maybe."

"We just haven't had time to have that discussion yet," Wolfson said.

 

Originally published in the The San Francisco Daily Journal, August 3, 2004, page 1 - Reprinted with permission — Copyright 2004