The Marriage Mastermind
This article by Mark Joseph Stern was originally published on April 26, 2015 on Slate. Read the full article here.
Evan Wolfson’s greatest hope for the Supreme Court’s upcoming marriage equality ruling is that it will put him out of a job. Wolfson has been fighting for nationwide legalization of same-sex marriage since the early 1980s, most recently as the president of Freedom to Marry, a wildly successful campaign. This June, his former dream may well become a reality—at which point Wolfson plans to declare victory, disband his campaign, and become the happiest unemployed person in America.
“The work of the gay rights movement will be far from over,” Wolfson told me in an interview earlier this month, “but the work of the campaign will be finished. Once we’ve won marriage, our job will be done.”
If the Supreme Court does hand down a pro-equality opinion this summer, Wolfson will have pulled off a triumph akin to Babe Ruth’s called shot. In 1983, Wolfson, then a third-year student at Harvard Law School, wrote a dissertation explaining how gay people could achieve marriage rights. Over the next three decades, he turned his dissertation into a crusade. All of the marriage equality movement’s best tricks—the legal theories rooted firmly in the 14th Amendment, the populist messaging focused on love and commitment—were right there in the dissertation. Wolfson merely had to turn his ideas into law.
“I wanted to write about transforming society,” Wolfson told me, “and how we, as gay people, do that. I wanted to address the central social and legal institution of our society, an institution that is the preeminent language of love, connection, and inclusion: marriage.”
After law school, Wolfson moonlighted as a volunteer for LGBT activism organizations like Lambda Legal and GLAAD. At the time, these groups were focusing primarily on employment discrimination and AIDS, with a long-term goal of rendering anti-gay sodomy bans constitutionally invalid. But in marriage, Wolfson spotted a better umbrella issue, one that would change not only the law but also gay people’s place in society at large. Winning basic legal protections, like freedom from workplace discrimination and from bedroom arrests, remained important. But these piecemeal successes, Wolfson understood, wouldn’t lend gay people and their relationships the legitimacy and integrity that a right to marriage would.
So while many advocates crafted a theory of constitutional gay rights that centered on a “right to privacy,” Wolfson searched for something more fundamental. The right to privacy, the theory behind Roe v. Wade, emanated not from the explicit text of the Constitution but from the “penumbras” in the Bill of Rights. At most, this right would bar the government from busting into gay people’s bedrooms to arrest them for having sex. It would hardly force states to recognize the equality of same-sex relationships. So Wolfson looked past constitutional penumbras to the plain text of the 14th Amendment, which explicitly guarantees both “liberty” and “equal protection of the laws.” In this promise, Wolfson saw more than freedom from government intrusion; he saw a freedom of autonomy—which includes the right to marry.
In the 1980s, Wolfson’s vision sounded absurd. The Supreme Court inflicted a crushing blow on the gay rights community in 1986 when it ruled that the Constitution grants no right to same-sex intimacy. That decision, Bowers v. Hardwick, so devastated Wolfson that he questioned whether he still wanted to be a lawyer. But after some anguished soul-searching, Wolfson decided to continue on his original plan: winning marriage equality state by state. He began in Hawaii, where a straight local attorney named Dan Foley had agreed to represent a gay couple suing their state for marriage recognition. Lambda, GLAAD, and the American Civil Liberties Union believed marriage equality was the wrong fight at the wrong time. But Wolfson helped Foley take the case to the state Supreme Court, which handed down a ruling Wolfson describes as a “tectonic shift.” In its decision, the court told the Hawaii Legislature that if it wanted to exclude gay couples from marriage, it had to give a good reason.
That gave Wolfson and Foley a chance to prove that there simply was no good reason for marriage discrimination—which they did, at a high-profile 1996 trial. The trial judge ruled that the state had failed to demonstrate any compelling interest in preventing gay couples from marrying.
The Hawaii ruling was groundbreaking and thrilling. But by the time it came down, Congress had already passed the Defense of Marriage Act, barring federal recognition of same-sex marriage. (It did so largely in anticipation of a pro-equality Hawaii ruling.) Then, in 1998, Hawaiian voters amended their own Constitution to bar marriage equality. These painful losses taught Wolfson that a win in court was useless if it couldn’t be defended and sustained afterward.
“What our movement needed,” he told me, “was not just a good case, a good lawyer, one battle here and there. We needed to be able to mount a sustained affirmative campaign to drive a strategy all the way to completion through ups and downs.”
From that hard-won epiphany, Freedom to Marry was born. It was launched in 2003 the same year the Supreme Court reversed Hardwick, holding that the 14thAmendment protects gay intimacy. A year later, the Massachusetts Supreme Court held that the state Constitution mandated marriage equality. Freedom to Marry helped fend off a constitutional amendment to reverse the ruling, then fought for court victories in blue states like Connecticut and California. The campaign appeared to be on a roll—until the traumatic, unexpected passage in 2008 of Proposition 8, when voters overruled California’s courts to once again prohibit same-sex marriage in the state. Freedom to Marry had no idea that its opponents would dump tens of millions of dollars into a viciously homophobic campaign that painted gay people as sick, aberrant predators.
But the whole point of the Freedom to Marry campaign was to build a movement that could weather tragic defeats and live to fight another day. So after the rout in California, plus losses the next year in New York and Maine, the campaign redoubled its efforts to push not just a legal argument but a moral one, a case for marriage equality that every American, not just judges, could understand. At the heart of this push was one thing: conversation. Marriage supporters, gay and straight, were encouraged to talk to their friends, family, and co-workers about who gay people really are and why marriage matters so much to them.
Wolfson sees these conversations not just as a campaign tactic but as an engine of social change. In a sense, the marriage fight gave his campaign an excuse to start these (long overdue) conversations across America. It’s easy to oppose gay rights when you’ve never met a gay person or thought about why same-sex couples might want to live their lives with dignity. Wolfson speculated that most Americans would come around to gay equality if they merely chatted with a living, breathing homosexual human for a few minutes. (His conjecture has since been confirmed by political scientists.)
The strategy worked. In 2011, activists bombarded moderate Republicans in the New York State Senate with poignant stories of their relationships. Four Republicans jumped ship to support a successful marriage equality measure; one was so moved that he told critics, “fuck it, I don’t care what you think—I’m trying to do the right thing.” In 2012, Vice President Joe Biden announced his support for same-sex marriage after an endearing encounter with a gay couple and their children. His pro-gay improvisation pushed President Obama to state his own support for marriage equality shortly after. Later that year, activists won four gay marriage–related ballot initiatives on Election Day—reversing a decadeslong losing streak—thanks to a campaign built on individualized conversations with voters. And in 2013, the Supreme Court struck down part of the Defense of Marriage Act, triggering a flood of more than 60 lower-court rulings in favor of marriage equality.
Most court-watchers expect the Supreme Court to finish the work it started in 2013 and invalidate state-level marriage bans. The justices will hear oral arguments on Tuesday and are expected to issue a decision this June. (One attorney arguing for equality, Mary Bonauto, is a close friend and part-time work spouse of Wolfson’s, and Wolfson himself will be in the audience.) If and when that happens, the work Wolfson began in 1983 will be more or less complete, and at this point, there’s just no turning back. An ever-growing majority of Americans support marriage equality, and same-sex marriage is essentially a non-issue among young voters. The greatest civil rights battle of the early 21st century—one Wolfson expected to last for decades—is drawing to a close faster than anybody expected.
I asked Wolfson, who married his longtime partner in 2011 after the New York victory, what he planned to do after he had achieved his goal of winning marriage equality in every state. At just 58, I reminded him, he has plenty of time left for a new career move.
“I don’t know,” he told me. “I really am not thinking about it.”
Did he have any plans? Any ambitions?
“Who am I when I’m not Mr. Marriage?” he responded after a moment. “What do I want? How do I want to make my next mark?” He paused again.
“I don’t want to spend time worrying about that now. I’ll have time to do that later.”