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Evan Wolfson: TRANSCRIPT: Chicago discussion on marriage equality

Marriage Equality Forum held January 26, 2004, in Chicago, IL, featuring Evan Wolfson, and Lambda Legal's Pat Logue, sponsored by Chicago Bar Association, Illinois Bar Association, American Constitution Society, and Jenner & Block. Transcript prepared by Espiritu & Associates.

MODERATOR: RICHARD WILSON, ESQ.

PANEL MEMBERS PRESENT:

EVAN WOLFSON, ESQ.,
Executive Director of Freedom to Marry
116 West 23rd Street, Suite 500
New York, NY 10011
(212) 851-8418

and

PATRICIA M. LOGUE, ESQ.,
Senior Counsel Lamda Legal
11 East Adams Street, Suite 1008
Chicago, Illinois 606032
(312) 663-4413.

MS. MORSE: Good evening. I want to officially welcome you to Jenner & Block.

I want to introduce you to our managing partner, somebody who never hesitates to support any kind of project that we want to do here at Jenner & Block, but particularly these kinds of events.

So to kick off this evening, please welcome a friend, my partner, Bob Graham.

MR. GRAHAM: I want to thank everybody for coming here tonight. There are some seats in the back on that side of the room if you need a place to sit. We do have a really nice crowd tonight despite the weather. I think it is great that everybody is here.

On behalf of Jenner & Block I want to welcome everybody really on behalf of all of the lawyers but also all the staff of the law firm, and I promise you a really great discussion tonight on marriage equality.

This is a topic that is in the forefront of the news. It is part of the politics of today as well as part of the law today, so it should be a great topic to discuss. We have a number of co-presenters, and my job right now is just to identify who those people are.

The first is the American Constitution Society, the Chicago Lawyers Chapter. We have a number of lawyers at Jenner & Block who participate in this group, and they deserve a special mention because they brought in, I believe, the leading expert on this topic, Evan Wolfson, is here today. He is going to be introduced shortly.

Additional co-presenters are Lambda Legal, which will include, of course, Pat Logue. Pat Logue is seated to the right. Pat used to work at Jenner & Block. So we are always glad to have her come back.

There is also Espiritu & Associates, the court-reporting firm. You probably can't see them, but they are right up here. We want to really thank them, because they are our co-presenter, too.

Also, the Chicago Bar Association's Committee [CBA] on Lesbian and Gay Men, Matrimonial Law and Civil Rights Law.

We are going to have a transcript of this event. So, if any of you really want a transcript of this, I am sure you could get it as well.

We are also very proud to host this tonight. We were going to have another speaker here, Bill Hohengarten, who is a Jenner & Block partner from our Washington office; but he got snowed in. When they get four inches of snow in Washington, everything stands still.

(Laughter.)

MR. GRAHAM: But Pat Logue knows everything about that case anyway. So Pat can address really, I think, any of the pertinent issues; and Bill I am sure is very sorry he can't be here. You would have enjoyed hearing from Bill.

There are lots of other co-sponsors that are listed on your program, and we want to thank them for co-sponsoring this event; and finally, I am here to introduce Richard Wilson, who is a partner at Nottage and Ward.

Richard told me before when we were out in the lobby eating before we walked in here, that he used to be a summer associate here. So I didn't remember that, but he did. So, that is great.

He is co-chair of the CBA Committee on the Legal Rights of Lesbians and Gay Men. He is a member of the ISPA standing committee on sexual orientation and gender identity. He is also on the Board of the AIDS legal counsel.

To introduce our panel and to set the stage for the event, please join me in giving him a round of applause.

(Applause.)

MR. WILSON : Bob, thanks for the promotion. I was a clerk.

(Laughter.)

MR. WILSON: In any event, I am pleased and honored to be here and to be a part of putting together this event.

It is a critical moment in history as far as many of us are concerned, and it is an appropriate time to welcome Evan Wolfson to Chicago to speak to all of you and Pat Logue as well on the issue generally and specifically as regards to what is going on across the country.

I find there is a lot of understandable ignorance about what people can do in Vermont or in Massachusetts or wherever, and it's really not clear; and if it's not clear among lawyers and among judges, particularly lawyers and judges who may have a personal interest in it, we certainly have a lot to do as far as education is concerned. I would like to introduce Evan and Pat briefly.

Evan, as you know, his biography is briefly contained in the program. Evan has been in the forefront of this issue since at least 10 years when the Bare case started in Hawaii in 1992 and 1994, first with Lambda Legal and now as the founder and executive director of Freedom to Marry, which is the National Coalition organization on the issue of equal marriage rights.

I am proud to introduce Evan. You may have seen his letter to the editor in last Friday's New York Times on the issue of President Bush declaring during the State of the Union that he was going to spend a billion and a half dollars to promote marriage.

I think Evan has a lot to say. He has been there through the whole history, and we are proud to welcome him to Chicago.

MR. WOLFSON: Thank you. It's a great turnout. Thank you very much.

I really want to just add my thanks to the Chicago Bar Association and the Illinois State Bar Association, the American Constitution Society, and Jenner & Block for providing this wonderful space and supporting this event, to Espiritu & Associates and my old colleagues and friends and home, Lambda Legal, and all the other organizations that have sponsored this.

I want to thank you all for coming out today. This is an incredibly important moment in our nation's history, not to mention in our lives as lesbians and gay men and as non-gay people who care about same sex couples, lesbians, gays, bisexuals and transgendered people.

We all have a stake in working to make sure that our country keeps its promise to be in a country where everyone has the right to be both equal and different and where no one has to give up her or his difference in order to be treated equally.

It is great to have these kinds of sponsorships from these kinds of organizations and this kind of roomful of people, because it really makes us feel reminded that we are among friends and we are not alone in caring about those values of equality and holding our country to its promise; but at the same time when we come together in a group like this and have the support of one another determined to do something to shape history, it is sometimes easy to lose sight of an important fact. That fact is that in all 50 states today lesbians and gay men, people who are different from the majority, are second class citizens.

No matter how strong we may be as individuals, no matter how rich our community, no matter how productive our lives, no matter how dedicated we are, each and every one of us who is gay is a second-class citizen in this country; and that is the backdrop against which we struggle to hold our country to its promise.

We are denied important protections for ourselves and for our families. We are denied our basic equality as citizens. We are denied simple dignity and respect for our love, our loved ones, our personal commitment to other human beings, and our families' equal worth. This denial is shameful. It is un-American. It is wrong.

It is contrary to the arc of history, and we are the ones who are privileged to be here today at a moment in time where history is bending and we can change and eliminate this injustice as part of the arc of history toward equality, inclusion and respect.

Now, this second class citizenship, of course, has prevailed throughout all of American history.

It was there at the dawn of the modern civil rights movement for lesbians and gay men with Stonewall in 1969.

It was the backdrop against which same sex couples — including transgendered couples, including lesbian couples, including gay couples -- challenged the exclusion from marriage from the very birth of the gay rights movement.

There was a wave of cases in the early '70s, another set in the '80s. The exclusion endured throughout the first 17 years of our our movement's history in which we challenged this discrimination and exclusion against our families, the exclusion from marriage, the second class citizenship, and in that 17 years from 1969 to 1986. What we saw in 1986 was a decision from the Supreme Court in the Hardwick case in which the Court said that it was okay to deny gay people basic constitutional protections.

It was okay to deny us what the Court at that time called the right to privacy, what the Court now calls more aptly, the right to liberty, to personal freedom.

The Court said it was facetious to suggest that there is any connection between gay people on the one hand and in the Court's words procreation, family or marriage; and, therefore, it was okay to deny us the basic entitlements as citizens. That was the first 17 years of the modern gay history from '69 to '86.

What happened in the second 17 years from '86 to 2003 when we saw the wonderful powerful heroic ruling of the Supreme Court in the Lawrence case that my dear friend and colleague, Pat Logue, who worked on that case, will talk about.

What changed? What enabled the Supreme Court to come back to the question of gay people's entitlement and the constitutional protection due intimacy and family and love, to the constitutional standards of equality and personal freedom? What enabled them to get right in 2003 what they got so wrong in 1986?

Why were the second 17 years so different from the first 17 years?

Well, the answer is that in the 17 years between 1986 and 2003 we showed the country and it turned out we showed the Court that in fact there is every connection between gay people, like other human beings, and parenting and family and, yes, marriage.

In the second 17 years of the modern history of our movement we captured, claimed, and reclaimed the vocabulary of love, commitment, family, intimacy, self-sacrifice, and dedication that is the vocabulary of marriage. By claiming the word marriage, by getting the country to put the words "gay" and "lesbian," "same sex couple" and "marriage" in the same sentence, we found a way of crystallizing a whole new understanding of who we are and what we seek and how wrong the exclusion is.

Now, we were not the first people in this country's history to struggle to claim the vocabulary, to claim the equality of marriage.

In 1987, the year after we took the five-to-four hit that seemed at the time devastating and almost insurmountable from the Supreme Court in the Hardwick case —

In 1987 another group of Americans came before the United States Supreme Court challenging their exclusion from the institution of marriage.

In order to address the question of whether the government could exclude that group of Americans from marriage, the Supreme Court said we first need to determine what marriage is under the American Constitutional scheme.

What is marriage in American modern life today?

What is marriage under the law and under the standards of quality that our constitution mandates?

The Supreme Court identified four important, in their words, "attributes" or elements of marriage today in American life.

1. Those four, the Supreme Court said, are: first, "Marriage, the Court said, is a paramount and important statement of one's commitment to another that receives public support, a statement of commitment personally made to another that receives public support."
2. The second important attribute of marriage, the Supreme Court, said is that marriage is for many people of great personal, spiritual or religious significance. It is a passage in life of important spiritual and even religious dimension for many.
3. The third important attribute of marriage the Court identified is that marriage offers at least the prospect of what the Court, in its language, called physical consummation, which most of us call something else....
4. The fourth important attribute of marriage the Court identified is that marriage in our system is the gateway to a vast array of tangible and intangible, public and private, legal and economic protections, responsibilities, and benefits that make a concrete and real difference in people's lives in virtually every area of their lives.

That is it. Those are the four attributes of marriage identified by the Court in analyzing the importance of the institution and the role it plays under the law. Weighing those interests, the Court said that the choice to marry, the freedom to marry is of great importance; and these interests cannot be arbitrarily denied to any group.

In weighing the interests, the Court struck down the arbitrary restriction enforced by the government against the group of Americans who had come before the Court in 1987, a unanimous ruling, by the way, written by that flaming liberal, Sandra Day O'Connor.

Now, the group of Americans who came before the Court in 1987 challenging their exclusion from marriage was prisoners.

The Court said that these attributes of marriage are so important in peoples' lives that they cannot be arbitrarily denied even to convicted felons. Well, today in all 50 states no matter how committed their relationship, no matter how long they have been together, no matter how much they need the protections and responsibilities that come with marriage and come only with marriage for their loved ones, same-sex couples, lesbians and gay men are denied that basic constitutional legal freedom to marry.

As you all know here and what brings us in such force tonight is that we all know that history is again on the move and that this exclusion like previous wrongs in American history is coming to an end.

We also know it's not always going to be pretty. We know it is not going to happen overnight. We know that some states are going to lead toward equality while others resist to the very end.

We know that politicians are going to demagogue as well as manifest profiles in courage.

We know that the Courts are going to split, and we know that the public is grappling.

We know that our opponents are on the move, but we know that we, too, can move and we, too, can make a change.

Last year, at the end of this second 17-year arc the world really shifted, because on June 10th, Judy Garland's birthday, a new dynamic entered into American history. For the first time in our nation's history, our country, the United States, is actually touching a country that is treating its gay citizens with full and equal respect.

As of June 10th, Canada began ending marriage discrimination and thousands of couples, including hundreds of American couples, including couples in this very room, same sex couples are now legally married; and Niagara Falls is still falling, but the sky has not.

Those couples are role-modeling for our non-gay neighbors the basic reality here, which is that ending marriage discrimination helps families, makes a real difference in some people's lives, while hurting no one.

Beginning with that June 10th milestone, the cascade of events and steps toward equality and exciting openings of possibilities just did not stop. We don't even have time to go through all of them — from Wal-Mart to the Episcopal Church.

Pat is going to talk about Lawrence and the Supreme Court decision, and there all I have to say that I rarely agree with Justice Scalia, but when he is right, he is right. He said in Lawrence that the restriction of marriage to opposite-sex couples now rests on fairly shaky grounds, and he knows whereof he speaks.

It didn't stop there, because as the cascade of heroic and important steps toward equality took place and as Americans every week seemed to have to open their eyes to new understanding, new news, new pictures, new images, new "Queer Eye" arrangements, on November 18th another landmark event took place. The high court of the State of Massachusetts ruled that the exclusion from marriage lacks any logical, sufficient, necessary, good reason and government may not discriminate against any group of Americans, may not discriminate against couples in love when it doesn't have a sufficient or good or necessary reason; and, therefore, the denial of a marriage license has to stop.

The Massachusetts high court ruled that the state has 180 days to clean up its act, get the forms in order, get the clerk's offices ready, and begin issuing the marriage licenses.

Those 180 days expire on May 17, 2004, the 50th anniversary of Brown v. Board of Education ; and right now in Massachusetts we have a victory shimmering within reach, the possibility of bringing home to our American neighbors the reality that our Canadian friends have already experienced -- that marriage equality can be allowed without people being harmed, that ending discrimination favors all and hurts no one. At the same in Massachusetts we see the same kinds of efforts to resist and flout and delay and block the law that we have seen in other civil rights movements in American history; and history is watching now as they do what they do and as we do all what we do.

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