|
| Gay & Lesbian Advocates & Defenders |
Toward a More Perfect Union
By DAVID J. GARROW
May 9, 2004
Mary Bonauto vividly remembers her first day as a lawyer at Gay and Lesbian
Advocates and Defenders (GLAD), the small public-interest law office that
represents gays and lesbians in the six New England states. ''When I came
here on March 19, 1990,'' she recalled not long ago, ''one of the things
waiting for me on my desk was a request from a lesbian couple in western
Massachusetts who wanted to get married.'' At that time, though, she believed
a lawsuit seeking a right to gay marriage had no chance of success in any
American appellate court. ''It was absolutely the wrong time,'' she told
me, ''and I said no.''
A generation or two from now, March 19, 1990, may appear in history books
the same way that another date appears in accounts of Brown v. Board of Education:
Oct.6, 1936, the day that Thurgood Marshall accepted a full-time job at the
N.A.A.C.P. Legal Defense Fund. Marshall, too, said no -- for more than a
decade -- to petitioners who asked him to challenge public-school segregation
in the South. Only in 1950, as the legal landscape began to shift, did Marshall
finally say yes.
For Bonauto, the wait was shorter but the outcome no less momentous. ''I
said no to many people over the years,'' she remembered, ''until I finally
said yes.'' In 1997, Bonauto and two other attorneys, Beth Robinson and Susan
Murray, filed a lawsuit attacking the constitutionality of Vermont's exclusion
of gay and lesbian couples from the institution of civil marriage. The case
went all the way to the Vermont Supreme Court, which in December 1999 ruled
in their favor but invited the State Legislature to devise a remedy. The
Legislature responded by creating the country's first-ever ''civil unions,''
which extended to same-sex couples all the legal benefits of marriage without
granting the actual name.
As historic as the Vermont decision was, Bonauto will forever be remembered
for her more important victory last November, when the Massachusetts Supreme
Judicial Court, in response to a lawsuit she filed on behalf of seven same-sex
couples seeking marriage licenses, handed down a landmark decision, Goodridge
v. Department of Public Health, ending the exclusion of gay and lesbian couples
from civil marriage in the state. The ramifications of Goodridge have been
felt throughout the country: public officials in San Francisco; Portland,
Ore.; New York State; and New Jersey were inspired to grant marriage licenses
to same-sex couples (all such licensing has since been halted), and a political
backlash took form, culminating in President George W. Bush's call in late
February for a federal constitutional amendment to ''protect marriage,''
as he put it, from ''activist judges and local officials.''
Just as with the societywide desegregation of American life that slowly followed
from Brown v. Board of Education 50 years ago this month, what will occur
on May 17, when Massachusetts begins issuing full-fledged marriage licenses
to same-sex couples, will mark the beginning of a new social era. Kevin Cathcart,
executive director of Lambda Legal Defense and Education Fund, America's
oldest gay rights law group, observes that once fully credentialed gay marriages
become a reality, ''you can't put the toothpaste back in the tube.'' Many
individuals and organizations have helped usher in the era of marriage equality,
but Bonauto's contribution has been exceptional. Kate Kendell, executive
director of the National Center for Lesbian Rights, says that ''Massachusetts
has had the success it did because of Mary Bonauto.'' Bonauto's patient,
quietly passionate yet self-effacing advocacy may have as far-reaching an
effect on America as did that of Thurgood Marshall. As Beth Robinson notes,
the marriage-equality movement ''doesn't stand on the shoulders of any one
person,'' but there is no doubt that ''the one individual person who's done
the most for marriage is Mary.''
A native of Newburgh, N.Y., Bonauto grew up with her three brothers in what
she describes as a ''highly Catholic'' family. Her father worked as a pharmacist
and her mother as a teacher. Bonauto first came to terms with her lesbian
identity as an undergraduate at Hamilton College in Clinton, N.Y., but only
during her first year of law school at Northeastern University in Boston
in 1984-85 did she come out to her parents. When she joined a small law firm
in Portland, Me., in 1987, Bonauto was one of only three openly gay lawyers
in private practice in the state. In Portland, she also met her life partner,
Jennifer Wriggins, now a professor at the University of Maine School of Law.
The late 1980's were an auspicious time for a young lawyer in New England
with a commitment to gay equality. In 1989, Massachusetts became the second
state, after Wisconsin, to provide anti-discrimination protection to gays
in employment, housing and public accommodations. When GLAD advertised for
a lawyer to help enforce the new law, Bonauto jumped at the opportunity and
moved back to Boston, accompanied by Wriggins. Bonauto's work at GLAD in
the early 90's taught her, she says, ''how to build, brick by brick, protections
for gay folks,'' even while she continued to say no on marriage.
But the marriage question was still very much on her mind. GLAD was inundated
with requests from gays and lesbians for help with legal difficulties --
child custody and adoption,
health-benefits coverage, inheritance and Social Security survivor benefits
-- that would not have existed if same-sex couples enjoyed the legal protections
and benefits of marriage. Some of those requests, Bonauto says, are ''seared
into my soul'' because they came from ''people who are calling me sobbing
from a pay phone because their partner of 24 years has just died and the
so-called family is in the house cleaning it out.'' But prudence prevailed.
''I would have loved to have been married myself and would have loved to
have filed a marriage case,'' she says, but ''you have to apply your strategic
sensibility to it.''
In the early 90's, the strategic and political discussions among gay lawyers
about marriage were intense. The most outspoken marriage advocate was Evan
Wolfson, a Lambda lawyer who had written a prescient student paper at Harvard
Law School in 1983 titled ''Same-Sex Marriage and Morality: The Human Rights
Vision of the Constitution.'' A similarly obscure article, by a little-known
lawyer named Nathan Margold, first set forth the constitutional game plan
that Thurgood Marshall followed all the way to Brown v. Board of Education.
Wolfson's deep commitment to pursuing the marriage issue ran into opposition
from his colleagues and peers. Some of them argued that marriage was so unappealing
an institution that access to it should not be a gay civil rights priority;
others claimed that irrespective of its desirability, pursuing a right to
marriage was an unattainable goal. These disagreements often were
articulated at meetings of the Roundtable, a twice-yearly national gathering
of gay rights litigators that originated in the mid-80's. When Bonauto attended
her first meeting in April 1990, Wolfson gained a crucial ally. ''I remember
Evan coming over and introducing himself,'' she recalls. ''He and I, at that
point I think, were two of the very few people who felt like marriage was
something that needed to be fought for in the courts.''
The disagreements crystallized in 1991, when several same-sex couples in
Hawaii persuaded an attorney named Dan Foley, a former legal director of
the American Civil Liberties Union's Hawaii affiliate, to file a constitutional
case there. Both the A.C.L.U. and Lambda declined to support the challenge,
but Wolfson took an active role. Most gay lawyers gave the case little thought,
but two years after Foley initiated it, the Hawaii Supreme Court issued a
surprising ruling that the state would have to demonstrate a ''compelling''
reason -- the same legal standard applied in race-discrimination cases --
in order to continue excluding same-sex couples from civil marriage.
''Once the Hawaii court ruled, we were in a different world,'' Wolfson says.
''There was this sense of possibility, this sense of hope, this sense of
empowerment.'' Bonauto, too, saw it as a sea-change moment, especially for
previously ambivalent gay lawyers: ''It was really when the Hawaii Supreme
Court ruled in May 1993 that people said we have to stand up and take notice
of this. If a court is going to stand with us, shouldn't we be standing up
for our own community?'' The high court returned the case to a lower court
for trial, but few expected that the
state could meet the exacting standard the court had imposed. Wolfson celebrated
what he called a ''seismic win'' and declared that gay Americans stood ''on
the verge of victory.''
But more than three years passed before a trial judge finally ruled that
the state indeed had not met the Hawaii Supreme Court's test. In the meantime,
political opposition mushroomed, both nationally and in Hawaii. In Washington,
opponents of gay marriage won the support of President Bill Clinton in passing
into law the federal Defense of Marriage Act, which limits federal recognition
to male-female marriages and decrees that no state has to recognize same-sex
marriages that are performed elsewhere. In Honolulu, the State Legislature
voted in early 1997 to place a constitutional amendment on the November 1998
state ballot that would give it the exclusive power to define marriage.
Proponents of gay marriage eagerly awaited a decisive affirmation by Hawaii's
top court, but months passed with no ruling. The court still had not spoken
when Hawaii voters adopted the anti-gay-marriage constitutional amendment
by a margin of 69 to 29 percent. Foley and Wolfson's much-heralded victory
had turned into a sour defeat.
As disheartening as Hawaii was, the original constitutional victory was an
encouraging indication of the persuasiveness of the equality argument. Early
in the Hawaii struggle, Wolfson urged Bonauto and others to hold off on filing
another marriage case in a second state, but as the Hawaii logjam dragged
into 1997, Bonauto's patience waned. ''I was really uncomfortable with leaving
Hawaii out there alone,'' she recalls. ''I just felt that this can't be about
one state.''
In July 1997, as the Hawaii case languished, Bonauto, Robinson and Murray
filed their case in Vermont. Hawaii had demonstrated that a well-wrought
lawsuit, strong constitutional arguments and a sympathetic court could produce
a victory but were not necessarily sufficient to protect and preserve it.
Vermont, by contrast, had several decisive advantages. Three years earlier,
the state Supreme Court issued a pioneering opinion approving second-parent
adoption for same-sex couples, thus evidencing sympathy for gay families.
What's more, Vermont's state Constitution, unlike Hawaii's, was difficult
to amend, creating a high hurdle for anyone eager to overturn a state constitutional
judicial decision. In addition, Robinson and Murray had begun laying crucial
political groundwork by creating the Vermont Freedom to Marry Task Force,
which conducted public education work of a sort that had never occurred in
tandem with the Hawaii case.
The case that Bonauto and her colleagues filed asserted that under the ''common
benefits'' clause in the state Constitution (Vermont's more expansive version
of the federal equal-protection clause), the exclusion of gay couples from
the rights and benefits of marriage was unconstitutional. A trial judge rejected
their complaint, but on appeal the Vermont Supreme Court endorsed their challenge
to the state's discriminatory conduct. That December 1999 ruling, Baker v.
State, was a gay rights landmark, but it nonetheless left the lawyers ''crushed,''
Robinson remembers, because the high court called for legislative action
rather than ordering that marriage licenses be issued to gay couples. ''It
was a political decision and not a legal decision,'' Robinson says. When
the Vermont Legislature took up the court's invitation, a result was ''civil
unions,'' in which the legal benefits of matrimony were extended to gay couples
but the all-powerful term -- ''marriage'' -- was withheld. The distinction
evoked a phrase that Thurgood Marshall knew all too well: ''separate but
equal,'' the pre-Brown label for the fictional fairness of segregation.
Bonauto decided to try again, this time in Massachusetts, where both the
state Constitution and the high court offered advantages similar to those
of Vermont. A summer 2000 meeting of the state's gay activists endorsed her
resolve, and in April 2001 she filed Goodridge, her second right-to-marry
case, in Boston. On behalf of seven same-sex couples, Bonauto asserted that
the state's refusal to grant licenses to gay and lesbian life partners violated
Massachusetts's constitutional equality provisions. The trial court again
said no, and Bonauto appealed to the Massachusetts Supreme Judicial Court.
When she argued her case to the seven justices on March 4 of last year, she
beseeched them not to dodge the question. Fearful of how Vermont's high court
had rendered a decision that allowed for a remedy that stopped short of actual
marriage, Bonauto insisted that ''civil unions'' would not satisfy the requirements
of the Massachusetts Constitution. ''The Vermont approach is not the best
approach for this Court to take,'' she emphasized, for ''when it comes to
marriage, there really is no such thing as separating the word 'marriage'
from the protections it provides. The reason for that is that one of the
most important protections of marriage is the word, because the word is what
conveys the status that everyone understands as the ultimate expression of
love and commitment.'' To follow Vermont, she continued, by ''creating a
separate system, just for gay people,
simply perpetuates the stigma of exclusion that we now face because it would
essentially be branding gay people and our relationships as unworthy of this
civil institution of marriage.''
While Bonauto waited for a decision, the legal climate improved. In the early
summer of 2003, the Canadian provinces of Ontario and British Columbia joined
Belgium and the Netherlands in authorizing same-sex marriages. Late in June,
the United States Supreme Court, in Lawrence v. Texas, emphatically reversed
its infamous 1986 decision Bowers v. Hardwick, which had upheld the criminalization
of private, consensual gay and lesbian sex. The high court's voiding of Texas's
antisodomy law surprised almost no one, but most observers expected a narrow
ruling striking down only those laws, like Texas's, that expressly singled
out gays. Instead, Justice Anthony M. Kennedy's majority opinion overturned
all remaining American sodomy laws and explicitly repudiated Bowers. Kennedy
energetically deplored government hostility toward homosexuals, and his expansive
language seemed to open the door to full legal equality for gay Americans
just as Brown in 1954 had opened wide the door to racial equality.
Although Kennedy stated that Lawrence ''does not involve whether the government
must give formal recognition to any relationship that homosexual persons
seek to enter,'' he also wrote that sodomy prohibitions ''seek to control
a personal relationship that, whether or not entitled to formal recognition
in the law, is within the liberty of persons to choose.'' The phrase ''whether
or not'' was expressly suggestive, and an angry dissent by Justice Antonin
Scalia declared that the majority's opinion destroyed the possibility of
a constitutional distinction
between heterosexual and homosexual marriages.
Five months later, the Massachusetts Supreme Judicial Court handed down the
ruling for which Bonauto had been waiting: an unparalleled 4-3 decision ending
the exclusion of gay
couples from marriage. The moral influence of the Lawrence decision on the
Massachusetts court was made explicit at the very beginning of the Goodridge
majority opinion, in which Massachusetts Chief Justice Margaret H. Marshall
cited Lawrence three times in her first three paragraphs. As Matt Coles,
head of the American Civil Liberties Union's Lesbian and Gay Rights Project,
observes, Goodridge ''answered that question that Lawrence begged.'' And
while ''Goodridge is the earthquake,'' Coles says, ''Goodridge is the earthquake
because of Lawrence.''
Bonauto was surprised when some observers interpreted the Massachusetts Supreme
Judicial Court's 180-day stay of the ruling, until May 17, as an unspoken
invitation to Massachusetts politicians to substitute Vermont-style civil
unions for actual marriage licenses. But when legislators formally asked
the court for its opinion on such a maneuver, the four-member majority brusquely
reiterated that Goodridge was ''not a matter of social policy but of constitutional
interpretation.'' That Feb. 4 announcement made gay marriage a legal certainty
in Massachusetts come May 17, notwithstanding the efforts of Gov. Mitt Romney
to block implementation of the court's mandate.
Bonauto remains warily prepared to head off any last-minute effort by the
governor. She emphasizes that ''my first priority is maintaining this victory
here on the ground in Massachusetts.'' Most opponents of gay marriage are
reluctantly backing a constitutional amendment in Massachusetts that would
prohibit gay marriages while establishing fully equivalent civil unions,
but the measure must obtain majority support in the 2005-2006 session of
the Legislature and then win a popular majority on the November 2006 statewide
ballot. Opponents can also put a more extreme measure, simply banning gay
marriages and civil unions, before Massachusetts voters, but not until November
2008. Thus gay marriages will have been hometown
realities in Massachusetts for at least two years, if not four, before ballots
to overturn Goodridge can be cast. Statewide polls show that 40 percent of
Massachusetts residents already support gay marriages, and another 11 percent
express no interest in the issue. Bonauto says those numbers will increase
once voters see that ''gay families have been strengthened, and nothing has
been taken away from your family'' in the months and years after May 17.
''Massachusetts was the breakthrough we had been building all these 10 or
12 years of work to achieve,'' Wolfson says. The impact of Goodridge on gay
people, Bonauto adds, is immeasurable. ''It has taken my breath away,'' she
says, ''to have so many people come up to me and say: 'I had no idea all
the ways in which I had incorporated my second-class-citizen status and didn't
even know it. For the first time I actually realize I am a full and equal
citizen, and I didn't even realize all the accommodations I had been making.'
That, I think, is what is
transformative.''
But Goodridge's impact was felt not only by gays. Hostile reaction followed
just as with Hawaii a decade ago, including critical words by President Bush
in his State of the Union address on Jan. 20. Among those in the audience
that evening was the newly elected San Francisco mayor, Gavin Newsom, and
Bush's remarks started Newsom thinking.
Two weeks later, Newsom instructed his top aides to look into how San Francisco
could start issuing marriage licenses to homosexual couples. Newsom's chief
of staff, Steve Kawa, phoned Kate Kendell of the San Francisco-based National
Center for Lesbian Rights late on the afternoon of Friday, Feb. 6. ''The
mayor wants to begin issuing marriage licenses to lesbian and gay couples,''
Kawa told an astounded Kendell. On Monday, Kendell suggested to Newsom's
staff that the pioneering lesbian rights activists Phyllis Lyon and Del Martin
become the city's first legally wed gay couple. Three days later, on Feb.
12, Lyon and Martin, ages 79 and 83, were married at City Hall. Literally
overnight, Newsom's initiative transformed the gay-marriage story from dry
reports of court rulings into vivid pictures of hundreds of homosexual couples
standing in line, sometimes in the rain, outside San Francisco City Hall
in order to follow in Lyon and Martin's footsteps.
President Bush upped the political ante on Feb. 24 when, warning that the
1996 federal Defense of Marriage Law might not withstand judicial scrutiny,
he endorsed a federal constitutional amendment to define marriage as a ''union
of a man and a woman.'' Reaction to Bush's declaration was largely lukewarm,
even among some Republican Congressional
leaders. But when the gay men and women of the Roundtable assembled on March
1 for a long-scheduled meeting, many worried that federal intervention could
upset their careful
state-level strategy. Evan Wolfson pushed his colleagues to respond to the
dramatic acceleration of events by intensifying their own litigation initiatives.
Some disagreed, worried that further events, on top of Massachusetts and
San Francisco, could fuel a reactionary backlash.
No consensus emerged, but two days later another unexpected chapter in the
struggle opened in Portland, Ore., when the Multnomah County Commission authorized
the issuance of
marriage licenses to same-sex couples. The Portland events received far less
media attention than San Francisco's, but the Multnomah marriages soon looked
more legally secure than the California ones. On March 11 the state Supreme
Court ordered San Francisco officials to stop issuing licenses to same-sex
couples, and joyous scenes at San Francisco City Hall came to an abrupt and
tearful end after 4,037 same-sex marriages. The California court is now considering
whether to hold the San Francisco marriages null and void, and a ruling disallowing
the licenses is possible sometime this summer. In Oregon, a trial judge has
upheld the Multnomah marriages but also ordered the county to halt such licensing
at least temporarily. Accelerated appellate review may put the question before
the Oregon Supreme Court this fall, but conservatives hope to force a popular
vote on an anti-gay-marriage state constitutional amendment either this November
or in 2006.
The gay and lesbian Roundtable litigators envision first Massachusetts and
then perhaps Oregon embracing full marriage equality within the next 12 months.
Lambda also has potentially promising constitutional challenges pending in
New Jersey, New York and Washington state courts that could prove successful
within the next few years. Longer-shot marriage cases -- some of them brought
by attorneys not acting in concert with the Roundtable organizations -- are
also under way in Arizona, Florida, Indiana and North Carolina.
But rather than dwell on state-by-state prognoses, Bonauto and other gay
and lesbian litigators privately focus upon delaying any federal court consideration
of same-sex marriage issues for a good many years. ''What's happened in Massachusetts
has been a beacon of fairness, hope and equality across the country,'' Bonauto
says, but ''I think that what it boils down to is avoiding the federal piece''
for as long as possible. ''I have tried to plead with lawyers not to get
overly ambitious about going into court and challenging the federal Defense
of Marriage Act,'' she says. ''I think a lot of times these cases would arise
as tax cases by wealthy individuals'' who pay disproportionate sums because
of the unavailability of marriage. ''I can't think of a less sympathetic
prospect,'' Bonauto says. ''I would like the opportunity for states to wrestle
with this before we have to go into federal court.''
One immediate challenge Bonauto faces is an attempt by Governor Romney to
order local officials to enforce a long-ignored 1913 statute that proscribes
the issuance of marriage licenses to out-of-state couples whose marriage
would be ''void'' in their home state. Romney wants town clerks to begin
demanding proof of residency from marriage applicants, but individual clerks
will face the choice of how to apply the state instructions, couple by couple.
That's exactly the context Evan Wolfson wants. After May 17, he predicts,
''for a period of time there will be a patchwork in which couples have this
mix of experiences, and in which nongay people, primarily, sitting on the
other side of those desks at the bank, at the clerk's office, at the school
registrar's, are going to have to now look at a real family and say, 'Am
I going to be the one to say they're not married?'''
Wolfson says that firm but polite insistence will prevail. ''These couples
are married,'' he says. ''They're as married as any people on the planet.
They are legally married.'' And first in Massachusetts, and then probably
in Oregon and elsewhere, the evidence rapidly will mount, in a phrase both
Bonauto and Wolfson spontaneously employ, that ''the sky doesn't fall'' once
gay couples receive unquestionably valid state marriage licenses. ''Moving
it from a hypothetical, when it's easy to be 'against it,' to a reality of
'these are real people, and who does it
hurt?''' Wolfson predicts, will fundamentally alter the debate.
Bonauto says that the struggle that will climax on May 17 is strengthening
America. ''Because of gay folks wanting to get married,'' she says, ''the
rest of the country is having a teach-in about what marriage is.'' The most
important lesson Massachusetts illustrates, she adds, is that ''it's marriage
itself that is so valuable as an institution, and that it's more than the
sum of its legal parts.''
When asked to talk about herself, Bonauto insists that ''it's totally not
about me.'' Since she and her partner Jennifer Wriggins -- and their 2-year-old
twin daughters, to whom Bonauto gave birth during the early litigation of
Goodridge -- now live in Maine rather than Boston, Bonauto and Wriggins's
desire to marry may fall victim to Massachusetts's nonresident statutory
restriction. Beth Robinson emphasizes Bonauto's ''modesty and humility,''
but insiders who fully appreciate how a very small network of gay lawyers
has brought America to the threshold of another civil rights milestone know
whom to credit. Disclaiming any desire for an ''architect'' label, Bonauto
says, ''I'm happy to be a bricklayer.''
Wolfson says, ''I really believe we are going to win,'' and Bonauto agrees.
''I'm very confident what the outcome is going to be,'' she says. She is
uncertain how many years will pass before gay marriage triumphs nationally,
but, she emphasizes: ''I really think that time is absolutely on our side
here. That's part of why there's such a rush from our opponents to amend
the federal Constitution.'' Opponents of gay rights, just like the Roundtable
litigators, can read the public-opinion data showing how heavy majorities
of younger Americans readily support same-sex marriage.
Lambda's Kevin Cathcart cites that polling data in explaining ''why I can
be confident and sleep soundly at night.'' He acknowledges that ''it's very
difficult right now to predict what's going to happen'' in the months and
years immediately ahead, but he also says that without a doubt ''in the long
run we win,'' a sentiment shared by Wolfson and Bonauto.
''I'm a little less sanguine than a lot of people,'' Cathcart admits, about
the very long odds that marriage-equality opponents face in pushing for an
anti-gay-marriage federal constitutional amendment. Bonauto acknowledges
that the possibility of statewide votes in Massachusetts in 2006 or 2008
actually impedes the mustering of anti-gay-marriage forces at the national
level, but at her weakest moments she, too, focuses on the long-term demographic
implications of current polling data. ''The times when I'm struggling,''
she says, ''I think, Do I have to wait until those people who are now 10
years old are 55 before we have equality for all gay and lesbian families
in this country? And that's a possibility, but even if that is true, that's
45 years from now.''
Looking back 50 years to Brown v. Board of Education, most Americans have
no difficulty in distinguishing the legacies of Thurgood Marshall, Martin
Luther King Jr. and John F. Kennedy from those of the segregationist governors
Orval Faubus, Ross Barnett and George Wallace. And 50 years from now, the
odds are that Americans will have little difficulty in distinguishing the
legacies of Evan Wolfson, Mary Bonauto and Gavin Newsom from those who oppose
gay equality. As Kevin Cathcart asks, ''Which side of history do you want
to be on?''
'Freedom to Marry Rings' image upper right © H. Mitchell.
|
|
