From DOMA To Marriage Equality: How The Tide Turned For Gay Marriage
From DOMA To Marriage Equality: How The Tide Turned For Gay Marriage
For 25 years, attorney Mary Bonauto and activist Evan Wolfson helped shape the gay marriage movement. They discuss the recent Supreme Court ruling, which represented the culmination of their efforts.
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. Now that the Supreme Court has ruled that gays and lesbians have a constitutional right to marry, we're going to talk about how we got to that point. I have two guests. Mary Bonauto is one of the three attorneys who argued before the Supreme Court on behalf of marriage equality. She was co-counsel on the case that led Vermont to become the first state to pass a civil union law and was the lead counsel in the case that made Massachusetts the first state to legalize gay marriage. She spearheaded the litigation strategy that led to the Supreme Court overturning part of DOMA, the Defense of Marriage Act. Since 1990, she's been the civil rights director of the group GLAD, Gay and Lesbian Advocates and Defenders.
Evan Wolfson is one of the architects of the marriage equality movement. In 1996, he was co-counsel in the same-sex marriage case in Hawaii. His court victory was overturned by a state constitutional amendment banning gay marriage. The realization that the fight couldn't be won in the courts alone led him to leave litigation and build the movement through organizing and public education to help create the popular support necessary for successful litigation. Mary Bonauto, Evan Wolfson, welcome to FRESH AIR.
MARY BONAUTO: Thank you.
EVAN WOLFSON: Thank you.
GROSS: So is this a done deal? Is marriage equality settled law now? Are we closing that chapter of the book?
BONAUTO: We are. We have a very clear ruling that marriage is a fundamental right and gay people can participate in that right like everyone else. And we have a very clear equality ruling that you can't have an important government institution like this and just tell same-sex couples that they can't participate in it.
GROSS: Mary, when your case went to the Supreme Court, were you worried about the consequences if the court rejected the idea of marriage as a constitutional right?
BONAUTO: Well, of course. I mean, anytime you're bringing a case, even if you are convinced that you are correct on existing law at precedent, you have to consider the possibility of a loss. And we thought we were right, so we just did everything we could to try to make sure we would get to a win. But, of course, we're entirely aware that if the court for some reason decided to, you know, find that there was a gay exception to the Constitution, that we would nonetheless proceed state-by-state because the stakes are so high for people.
GROSS: I'm just interested in the way you put that - a gay exception to the Constitution. You want to just elaborate on that phrase you just used.
BONAUTO: Sure, I mean, I have been working at Gay and Lesbian Advocates and Defenders since 1990. And when I started I was there in part to enforce the nation's second nondiscrimination law - forbidding employment, housing and public accommodations discrimination based on sexual orientation. And at the time, that was a shocking idea. And I think one of the things that we have just been up against from the beginning is this sense that, well, it's OK to treat gay people differently. They're different, and, of course, moral objections to gay people and homosexuality have - were long sanctioned in law as a permissible basis for treating gay people differently. And that's what we've been wrestling down.
GROSS: Evan, how does the Supreme Court victory compare to how you dreamed Americans would get marriage equality? This is something you've been dreaming of since 1983 when you wrote your thesis on marriage equality.
WOLFSON: Yes. And it, of course, even began before me, even in the early 1970s right after Stonewall, which we usually somewhat erroneously make the date of the modern gay rights movement's birth. Couples were seeking the freedom to marry and one of those cases had reached the Supreme Court by 1972. And at that time, the courts were just rubberstamping away gays - gay people's aspiration for the freedom to marry. And in the Supreme Court in 1972, they didn't even bother to write an opinion. They wrote a sentence throwing it out. And by the way, that ruling against us was only finally overturned in this victory on June 26 of this year. So this has been a dream of gay people from the very beginning of the modern movement.
So the strategy we pursued over these decades was very much to set the stage for a Supreme Court victory. We always believed that we were going to win the freedom to marry through the Supreme Court's bringing the entire country to national resolution. One of the keys to this strategy and one of the keys to our success is that the same case we were making in the courts of law we were also making in the court of public opinion. And by the time we reached the Supreme Court to secure the victory we'd been working for so long, we had moved American support from 27 percent - when I was doing that trial in Hawaii back with my non-gay co-counsel Dan Foley in the 1990s - to 63 percent. So we had persuaded the country and the courts followed.
GROSS: OK, let's get to Justice Kennedy's majority opinion on behalf of marriage equality. What are the lines that you think are most significant?
BONAUTO: OK, so after Justice Kennedy talks about how liberty protects the personal choice to make your choice of partner that's part of individual autonomy that the courts protect, after all of that the court then writes the nature of marriage is that through its enduring bond two persons together can find other freedoms such as expression, intimacy and spirituality. This is true for all persons, whatever their sexual orientation. And part of what I love about that line is that it lifts up marriage and the importance of marriage to people, to society and it makes it perfectly clear that this is true for everyone and ends those sexual orientation-based double standards.
GROSS: And, Evan Wolfson, I want you to respond to something that Justice Roberts wrote in his dissenting opinion. He wrote this court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.
WOLFSON: Yeah, well, we all agree with that. And that's the kind of thing people write when they don't like what the court does. But, of course, the reason we have a Supreme Court is to uphold the command of the Constitution, which is the supreme law of the land. And the supreme law of the land that we the people enacted governs and provides for liberty and equality. And when there is a discriminatory restriction that's been slapped on by politicians or even by a temporary majority of voters, it is the job of the justices - it is the job of judges - to measure that discrimination against the overriding command of the Constitution. That's why we have a court. That's why we have the Constitution.
GROSS: Mary, when you were arguing on behalf of marriage equality before the Supreme Court, you had to be prepared for a lot of different questions. And I wonder if you were prepared for this one from Justice Alito who said this to you - let's think about two groups of people. The first is the same-sex couple who have been together for 25 years and they get married either as a result of change in state law or as a result of a court decision. The second two people are unmarried siblings. They've lived together for 25 years. Their financial relationship is the same as the same-sex couple. They care for each other in the same way. Is there any reason why the law should treat the two groups differently? Were you prepared for a question like that?
BONAUTO: I was. It's the whole idea of a slippery slope that if same-sex couples can marry then, for some reason, all bets are off and anybody can marry. And of course, ever since there's been a freedom to marry in this country, I guess you could've asked those questions. And there's nothing about same-sex couples marrying in particular that, you know, makes these questions any more pertinent. And, you know, the real issue for us is what's the reason - what is the reason for denying same-sex couples marriage? And when it comes to other, you know, questions about who may marry, there may be justifications that are particular there that simply don't apply in the area of same-sex couples committing in marriage.
GROSS: So what - one of the things that Justice Alito said is, you know, that in this comparison that he set up that the brother and sister care for each other in the same way - and that's a quote - "care for each other in the same way as the same-sex couple." Unless that brother and sister are having incest, which is not condoned in our society - unless they're having incest, they're not exactly caring for each other in the same way as the same-sex couple. Is that something that you felt you should point out to him, that the same-sex couple is probably engaging in sexual relationship and the brother and sister are probably not and that's one of the differences between - one of the things about marriage that you kind of take for granted?
BONAUTO: Well, one of the things about an argument is you make a lot of decisions on the fly. And you make a lot of strategy calls at every moment. And, frankly, there was a whole series of polygamy and slippery slope questions. And I think the major point for the oralist was to basically say we're talking about something different here and what is the excuse, the reason, the justification for this discrimination, but also to make it clear to the court that, yes, these questions can be answered. There are differences, as you point out, Terry, with respect to the couples involved and also to raise the larger policy issues that may apply in a different context when you're talking about, you know, again, if you grow up with the expectation that you may be marrying your brother, it's a very different kind of family relationship and the possibilities for coercion increase.
WOLFSON: Well, what I found in having these discussions in, you know, over decades in front of thousands and thousands and thousands of people is that when people bring up polygamy and these other kind of slippery slope gotchas, it's really an effort to distract from, as Mary points out, the question that's actually here today, which is what reason is there for denying same-sex couples the same dignity, the same protection, the same freedom to marry, that different-sex couples have? And the way I usually answer it is to say that gay people are not saying let's have no rules. Let's just let anything happen.
What we're saying is let us have what you have. And just as you, Justice Alito, had the right to marry the person you love and commit to her and build a life with her so we should be able to have with the person we love and have built a life with and have committed to. And other questions may be other questions, but they're as equal questions for Justice Alito as they are for others. And I think it's very telling that Justice Alito showed so much more simply for this hypothetical question of close relatives wanting to marry and zero sympathy for the actual gay couples who were standing in front of him having built lives together, raising kids, caring for their parents, without any reason being offered for the - by the state for why they should be denied something that he has.
GROSS: If you're just joining us, I have two guests. Evan Wolfson is one of the architects of the marriage equality movement. Mary Bonauto is one of the architects of its litigation strategy. We'll take a short break. Then we'll talk some more. This is FRESH AIR.
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GROSS: This is FRESH AIR, and if you're just joining us, we're talking about marriage equality and its victory in the Supreme Court. I have two guests. Mary Bonauto was one of the three attorneys who argued before the Supreme Court on behalf of marriage equality. She was co-counsel on a 1999 ruling in Vermont, which led to the nation's first civil union law. She was the lead counsel in the case that made Massachusetts the first state where same-sex couples could marry legally. Evan Wolfson is one of the architects of the marriage equality movement. He's the founder and president of Freedom To Marry. And he's led the education and organizing end of things to build a foundation for the litigation - a foundation on popular opinion. Mary, when you were arguing on behalf of marriage equality before the Supreme Court, did you sense that perhaps some of the justices were very uncomfortable with the very idea of homosexuality? And if so, how does that affect your presentation?
BONAUTO: You know, all we have about the justices is what they say in public, which tends to be fairly little, and what we have in their written decisions. And it was clear to me from looking at the Windsor opinion in particular from 2013 that had struck down DOMA that there were going to be a number of justices who had a point of view about marriage and I was unlikely to change their minds. You know, having said that, of course you go up there and, you know, with all of the briefing as well as the oral argument, you know, you're hoping you can persuade them. And it's part of why I focused on our incredibly majestic 14th Amendment in our Constitution and its guarantees - liberty and equality. But were people uncomfortable? It's not for me to say. But it's clear that people had a point of view - that some people at least had a very clearly expressed point of view about marriage as having a particular purpose, you know, for biological reproduction and that, as a result, gay people were, in their view, irrelevant to that very narrow purpose of marriage.
WOLFSON: As you know, even before we won in the Supreme Court in June, we had won more than 65 state and federal court rulings over the previous two years. Opinions written by judges who were appointed by Republicans, some appointed by Democrats, judges at the appellate level, trial level, all these different judges - virtually every court in the last two years, prior to even the Supreme Court, had ruled in favor of the freedom to marry. And in all of those rulings, my favorite passage came from the case in which we brought the freedom to marry to Utah. In the Utah case, the judge wrote it's not the Constitution that has changed. It's our knowledge of what it means to be lesbian and gay.
GROSS: Mary, you knew that Justice Kennedy was likely to be the swing vote on this and you also knew that his record was very strong on behalf of gay rights. Were you in any way trying to pitch your argument to him?
BONAUTO: To some degree, of course. I'd be a fool not to. Having said that, I didn't want to take the votes of anyone for granted and, of course, had hoped that all of the legal arguments and all of the different entities that had weighed in would have an effect on any number of justices. But sure, that was important to me. And Justice Kennedy was clear, not only in Obergefell, but in earlier decisions that the 14th Amendment is an enduring guarantee to all of us that we can't see discrimination necessarily in our own times. And that's part of why the Constitution has to be - even though it doesn't change, you know, as Evan just said - we awaken to - we awaken to things that are unfair, things that are wrong, you know, the dismissing of people's common humanity. I think Justice Ginsburg put it best in a 1996 case when she talked about there's a way in which the whole history of our Constitution is the story of including those within our Constitution who had previously been ignored and excluded. And I think that just speaks volumes about not only the journey of gay people in this country, but, you know, women, African-Americans; clearly there's more work to do. We get all of that, but that's a big part of what is going on here. And I thought it was telling that the majority opinion called out so clearly, you know, the love of Jim Obergefell for his deceased spouse and of April and - April DeBoer and Jane Rowse and the children they're raising and the plaintiffs from Tennessee who serve in the military in saying this is what we're talking about. We are talking about real people here.
GROSS: In the case of Jim Obergefell, what he wanted was to be able to include his name on his deceased husband's death certificate. They were married in one state where marriage was legal for gay people and moved to another state where it wasn't. And consequently, Jim Obergefell's name was excluded from the death certificate. That's - he wasn't asking for money. He wasn't asking for damages. He was asking for his name on his husband's death certificate.
WOLFSON: Yeah, and another word for that would be dignity and, of course, the opinion talks as other - as other Kennedy opinions have talked about dignity. And by dignity, what he's talking about is the real acknowledgment and respect of a person's personhood, which is what triggers the liberty and equality that we are due as our country's birthright. It is central to what America is about, and that's what's captured in this opinion.
GROSS: Mary, were there any questions that came from the Supreme Court justices that took you off guard, that you felt unprepared for or that you felt were particularly hostile to your case?
BONAUTO: I went through many, what they call, moot courts where people ask you what they hope is every potential irrelevant question. You know, I was on - I had panels of, you know, all conservatives. I mean, I heard thousands of questions in the course of all of this. And I have to tell you, for all the constitutional opinions I've read, I haven't seen references to the Han Chinese and the Kalahari and so on before in terms of being relevant at all in interpreting the guarantees of liberty and equality under the 14th Amendment. So that's one of...
GROSS: Right 'cause one of the justices - I forget which - used...
GROSS: Roberts, yeah, used these other cultures, like, they've always defined marriage as between a man and a woman. This has been going on forever. Like, why change it now? Why change the course of history now? So what did you respond to that?
BONAUTO: You know, I don't have the transcript in front of me. But this was one of those areas where, as a legal matter, that that is true, although of course there have always been same-sex relationships in history, and sometimes they were valued in different ways, but they were not legal marriages. But that's not the issue under the 14th Amendment. And one of the things, you know, in terms of - my go-to place was to go back to the 14th Amendment and how things that we didn't understand in 1868 as wrong and discriminatory we do understand as wrong and discriminatory now. And a great example of that is with gender where it took over a hundred years for the court to recognize that there were any gender-based distinctions in love where women were treated, you know, so vastly differently from men that were unconstitutional, that were unequal. And that that was - that's our real reference point.
GROSS: So in talking about how...
WOLFSON: Well, and...
GROSS: How some of these historical references were things we were unprepared for, Justice Alito asked you about Plato and the ancient Greeks. And he said the philosopher Plato, you know, engaged in same-sex love. The Greeks had many instances of same-sex love, but they limited marriage to couples of the opposite sex. So that wasn't based on prejudice against gay people was it, he asked.
BONAUTO: Yeah, he did ask that. And, you know, Terry, I have to tell you what's going through my mind at this point is this is a distraction. This is not advancing my argument. You know, I'm actually somebody who has studied ancient Greek - read it. My kids have taken it. I had been to Greece the previous summer. I mean, I actually know a fair amount about the culture, but it was irrelevant to the 14th Amendment. And so on the one hand, you want to answer the justice's questions. On the other hand, it's your job when you're there to try to advance your own argument. And I - what can I say? I viewed this as just something that was taking up time, but was not particularly helpful to the 14th Amendment analysis.
WOLFSON: And I would say, you know, having sat in the courtroom and watched Mary deal with this and, you know, she certainly pushed back and the solicitor general pushed back. And also Justice Ginsburg jumped in and made the point that the whole premise that Alito and the others were pushing was false, that marriage had changed dramatically throughout societies and throughout history, including, as Mary said, the subordination of women, the ownership of slavery - of slaves - the domination of the male of the entire household, including having dominion of the kids they raised and could - he could put to death if he chose. You know, how does any of that have to do any - with anything related to what our society guarantees to all of us, particularly through our Constitution and the command of the 14th Amendment?
GROSS: My guests are Mary Bonauto, one of the three attorneys who argued and won the marriage equality case in the Supreme Court, and Evan Wolfson, one of the architects of the marriage equality movement. After we take a short break, we'll talk about their reaction when David Boies and Ted Olson challenged California's Proposition 8 in the Supreme Court, going outside the strategy that the marriage equality movement had charted. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR, I'm Terry Gross. We're talking about the marriage equality movement with two architects of the movement. Mary Bonauto was one of the three lawyers who successfully argued before the Supreme Court on behalf of marriage equality. She was also the lead counsel on the case that made Massachusetts the first state to legalize gay marriage. She spearheaded the litigation strategy that led to the Supreme Court overturning part of DOMA, the Defense of Marriage Act. Evan Wolfson is a lawyer who argued in the Hawaii state Supreme Court on behalf of marriage equality in the 1990s. He left litigation to build support for the marriage equality movement. In 2003, he founded the group Freedom to Marry with the goal of creating popular support that could lead to a Supreme Court victory.
One of, I think, the turning points in the marriage equality movement was Proposition 8 in California which banned gay marriage. That's the state that San Francisco is in and, you know, obviously San Francisco has a very large gay population. This is quite a setback for the movement. And then Ted Olson and David Boies - who were, you know, big famous lawyers and famously were opponents in the contested election of George W. Bush in the Bush v. Gore Supreme Court case - they, who had been on opposite sides, teamed up together to take the challenge to Prop 8 to the Supreme Court. And, you know, from things I've read it sounded like people like you who had carefully planned - did this state-by-state strategy and didn't want to take things to the Supreme Court until the time was right - felt ambivalent about these two outsiders to the gay rights movement, to the marriage equality movement, coming in and taking the case before the Supreme Court. So set us straight on this - what were your reactions when Olson and Boies teamed up to take the issue of marriage equality to the Supreme Court?
BONAUTO: For me, at least at the time that they filed their case which was in May of 2009, we had three states with marriage quality. And if you believe as I do, and as history shows, that the Supreme Court will step in when there is a minority of states and will settle - at this point, settle the national rule, it seemed premature. And we had just - we at GLAAD had just filed the first challenge to the Federal Defense of Marriage Act two months earlier, which we thought was a critical first step, you know, to address the federal definition of marriage that was resulting in the federal government disrespecting the actual live marriages of people in these states, including Massachusetts where people had been married for five years. We thought it was crucial to litigate against DOMA itself and show how it was harming actual married couples.
GROSS: OK, so let me get back to the challenge to Proposition 8 in the Supreme Court that was led by Ted Olson and David Boies. You've described your strategy as, you know, legalize marriage in a sufficient number of states so that there was, like, a bedrock, challenge DOMA and then go to the Supreme Court saying the Constitution should guarantee the right of gay people to marry. So let - Evan, let me ask you, how did you conceive of what the building blocks were for marriage equality before taking it to the Supreme Court and consequently what was your reaction to the Ted Olson, David Boies challenge of Proposition 8?
WOLFSON: Proposition 8 was of course a painful blow. But we went right from Proposition 8 in 2008 to our winningest year, to that point in 2009, when we won the freedom to marry in several more states, solidified the majority we had been building and set the stage for what became the successful litigation strategy that Mary spearheaded with regard to the so-called Defense of Marriage Act. So into that environment where the strategy was moving, there was this effort to, as you said, bring in a new case that would jump over all of that - that was their expressed goal. And actually - I want to say that it wasn't that Ted Olson and David Boies were outsiders that was an issue. Actually, the addition of Ted Olson, in particular as a voice that helped open space for more conservatives to come on board, was very effective and really a great contribution. And of course the Hollywood engine behind the Olson-Boies case helped promote a lot more public discussion and that fit within the strategy. What didn't fit within the strategy was their announced intention at the beginning to rush to the Supreme Court. And if they had had their way, they would've gotten this case to the Supreme Court within a matter of months - long before we had, for example, won the freedom to marry in New York which was such a powerful turning point, again, because we won in the legislature of that powerful state with Republicans as well as Democrats and it really signified a shift in the political center of gravity. There - they would have gotten to the Supreme Court had they had their way before we had solidified that national majority that we were building and that we did hit in early 2010, really. And they would've gotten to the Supreme Court had they had their way before we had secured the support of President Obama in 2012. But fortunately for all of us, what happened was the judge that they brought the case to - Judge Walker - wasn't having that. And he basically said no, we're not in a rush here. We're going to have a trial. We'd only had one other trial before that, in Hawaii 14 years earlier. And meanwhile, because he slowed things down, the movement strategy was something we were able to keep working and we racked up all those other wins that I just talked about as we built forward so that by the time the case did get to the Supreme Court in 2013, it got there, literally, at the - on the same timeframe as the federal piece of the strategy that we had all been working - that Mary had led...
GROSS: The challenge to the Defense of Marriage Act.
WOLFSON: Exactly and we could hope that at that point, four years later than what they intended, things had changed because they had changed and the strategy had worked. And while, of course, what happened was the Supreme Court proved unwilling at that point to actually bring us the full national win that we all wanted and that the Olson-Boies case was intended to deliver, but it did bring us the resounding victory in the federal piece - the Defense of Marriage Act case - that added to our momentum and we kept working the very same strategy and that strategy is what led to the victory in June.
GROSS: Well, Evan, let me ask you, I mean, as one of the architects of the marriage equality movement who was advocating for that at a time when that issue wasn't seen - wasn't necessarily seen as very important yet within the gay rights movement, why was it important to you? And, you know, in 1983 you wrote your thesis on freedom to marry. You launched a Freedom to Marry group. Why - did you want to marry somebody at that point? Was it a personal thing or did you just see that as an important issue for the gay rights movement?
WOLFSON: Yeah, it really never was because of my own personal desires. For most of those early years, when I was pushing for the freedom to marry, I was whine-ily (ph) single and I saw all my friends, including many of those who were pushing back, happily in relationships and so on and I wanted that but I didn't have someone. So I used to argue those who can't do, litigate.
WOLFSON: Let's go out and fight for this. But in seriousness, the reason I believed it was important was - as I was writing that paper in 1983, I had two central points. One was that gay people should have the freedom to marry and notwithstanding the courts rubberstamping those cases away in the early-70s. You can't say you're for equality and then acquiesce an exclusion from the central, social and legal institution of our society, particularly one that is discriminating against us on precisely the thing it's about - our love.
GROSS: My impression is that two of the obstacles from within the gay rights movement that stood in your way were one, the AIDS epidemic because that was killing so many gay men, that I think gay marriage maybe receded into the background and was considered a secondary issue compared to the health crisis. And also that...
GROSS: ...I think a lot of - correct me if I'm wrong - that a lot of gay people at the time maybe thought that this was - to use today's word - heteronormative - that you were trying to adapt the same kind of relationship standards that straight people had and that maybe didn't necessarily apply in the same way in the gay world. That gay men maybe wanted different kinds of relationships.
BONAUTO: I'm going to jump in here because I actually think the AIDS crisis was one of the things that led us to fight for marriage.
WOLFSON: I agree.
BONAUTO: And as a new attorney in the 19...
GROSS: I see - I already see your point, yes.
BONAUTO: Yes. You know, as a new attorney in the 1980s, you know, I volunteered to do pro bono work my first day on the job and had plenty of it to do. It was just so clear to everyone that, you know, the person you lived with for 20 years was nobody. And the real family could come in and clean out the apartment, you know, it was back in the days of payphones and I can't tell you the number of times I received calls as a new attorney about, you know, my boyfriend died. His family is here cleaning everything out. You know, is there anything I can do about it? And, you know, if you think about the bedside visits and the goodbyes that never happened and you think about that kind of thing, it was just painfully obvious that we had to fight for families. And another whole piece of this is that so many more same-sex couples - and, at that point particularly, lesbian couples - were forming families with children on their own and not from having children in a previous marriage. And again, another thing that makes you want to fight for your family is when you have kids. You have to be out all the time. It's clear who are the parents and it's one of those things that really motivated people to fight - this all was happening contemporaneously. So there's - it's a much bigger discussion but I think those were serious engines of the marriage equality movement.
WOLFSON: Yeah, 8 shattered the silence about gay people's lives. And that helped non-gay people to understand who we are and not as stereotypes, not as these horrible things that have been taught, but as people who love, people who grieve, people who are showing courage, who are fighting for one another. And it also awakened in gay people a better understanding of how vulnerable we were in being denied the security, the support, the affirmation that comes with marriage. And so AIDS really transformed our movement from being a movement about let us - being let alone, you know, don't arrest us, don't harass us, don't persecute us - into a movement about being let in. Let us share in what society offers and have the same dreams and the same support.
GROSS: My guests are Mary Banauto, one of the three attorneys who successfully argued the marriage equality case in the Supreme Court and Evan Wolfson, one of the architects of the marriage equality movement. We'll talk more after a break. This is FRESH AIR.
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GROSS: This is FRESH AIR. My guests are Mary Bonauto, one of the three attorneys who successfully argued the marriage equality case at the Supreme Court and spearheaded the litigation strategy that led to the Supreme Court overturning part of DOMA, the Defense of Marriage Act, and Evan Wolfson, one of the architects of the marriage equality movement. He founded the group Freedom to Marry. Anti-gay sentiment was, I think it's fair to say, used to rally part of the evangelical base - fear that gays would get married, fears that gays would recruit and convert children, fears that they would, you know, through AIDS contaminate people, fears that the things that they did in the bedroom were filthy and disgusting. And, you know, you heard - you heard sermons about this. You heard politicians preaching this. Anti-gay ballots were put on bills in part to get people to the polls. Do you think that political use of homophobia, that those days are over?
BONAUTO: No, I don't think those days are over. But one thing that's extremely important in law is that since 2003, with the ruling in the Lawrence versus Texas case, that moral objection or moral disapproval of gay people because of who they are is not a basis for making laws to disadvantage people. And really it's been, as my colleague - our colleague - Paul Smith has observed, you know, ever since that ruling - this is one of the things that changed the dynamic around the marriage arguments because states couldn't come in anymore and say, they're icky. They're scary. We don't like them. We don't approve of them. They actually had to come up with a neutral-sounding rationale for why states were denying marriage. And that got them twisted up in knots about, well, it's heterosexual people who can procreate by accident, and that's actually the whole purpose of marriage. And that just made no sense to anyone who, of course, thinks about marriage about as about love and commitment. So frankly, it's going - it's going to happen. But what is clear, starting from 2003 and reaffirmed twice since then, is that moral objections to gay people simply because of who we are have no place in law.
GROSS: Evan, when you started your campaign for marriage equality, you were single. You were not in a long-term relationship. Now you're married. And Mary, you're married and have two children. How does the Supreme Court saying that marriage for gay people is a constitutional right - how does that affect your marriages and your futures together?
WOLFSON: Well, the Supreme Court's affirming the freedom to marry nationwide doesn't really change anything for my husband and me as a married couple. We're now coming up on our fourth anniversary and still going strong, happily. And I still feel the glow of that joyous day in 2011, when we were able to marry thanks to our win in New York. So it's not really changing my status under the law. And it certainly doesn't change our love, though it does mean that I'm about to be out of a job. And we will go through some passage in our life together, my husband and I. But that's a happy one that we've been working for.
GROSS: Are you closing down your group, Freedom to Marry?
WOLFSON: Yes. Freedom to Marry was set up as a campaign. And the work of this campaign, having now been achieved, we will shut down. But of course, the work of our movement is far from over. So we really have a lot of work to do. And Freedom to Marry's goal is achieved. And this campaign is going to wind down in a smart, strategic way over the next several months. I'm sure some of my absolutely incomparable team are going to go on to other positions in the movement and really be part of the work ahead.
GROSS: Mary, you're married. You have two children. How does the marriage equality decision that you helped achieve affect your family?
BONAUTO: One of the really painful things about this issue all along has been the impact on kids who are being raised by their parents, their loving, same-sex parents. And time and again, I would have plaintiffs with children. And the children would say to them things like, if we lose, are we still a family? And in my own situation in 2009 - where we lost a ballot measure in Maine before we won one in 2012 - and my own children were asked whether or not our family would need to move apart because of this. And this whole idea of the illegitimacy of our families, that we're inferior, that we're not as good as other families, is - it's wrong. It's wrong to teach kids that about their own families. It's wrong to impose that kind of insecurity on them and that doubt and that questioning. It's corrosive for them, actually. And it's part of what I've always appreciated about Justice Kennedy's clear voice, about how telling people that they don't even have the right to choose to marry is itself a damaging message for children. It doesn't mean everyone has to marry. But telling committed, same-sex couples they don't even have that choice is inevitably conveying a stigma. And, of course, the opposite of stigma is dignity. And Justice Kennedy lifting up the dignity of all gay people and same-sex families (inaudible) is going to, I hope, not only make kids and families more secure; but I think about all of the kids whose own families don't accept them because they're gay, because they're transgender, and I hope that a decision like this over time will, number one, help kids - you know, young, LGBT kids - realize there's no shame in being who they are. And I hope it will help the families that are struggling with it - this decision will help the families that are struggling with who those kids are to be more accepting so they can be raised happily at home.
GROSS: So neither of you mentioned that the marriage equality decision enables you both to be married in every state in the United States. I mean, you can move to another state that hasn't yet passed a gay marriage law and still be married there. That must be a relief.
BONAUTO: It's incredible to think that the whole country is once again available for us to move about, to travel, to work, to go be with our families of origin. It's - the maps - looking at the maps and where it's safe to go and where it's not safe to go has been a dominant theme for many years now. And it's still sinking in that the country belongs to all of us once again.
GROSS: Well, Mary Bonauto, Evan Wolfson, thank you both so much for talking with us.
BONAUTO: Thank you.
WOLFSON: Thank you.
GROSS: Mary Bonauto was one of the three attorneys who successfully argued in the Supreme Court on behalf of marriage equality. She's the civil rights project director of GLAD, Gay and Lesbian Advocates and Defenders. Evan Wolfson is the founder of the group Freedom to Marry. Coming up, David Edelstein reviews "Tangerine," a new film about transgender sex workers that was a big hit at the Sundance Film Festival. This is FRESH AIR.
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