By Evan: Speeches

Testimony Before the Committee on the Judiciary United States Senate July 20, 2011

Evan Wolfson

Written Testimony of Evan Wolfson, Founder and President, Freedom to Marry before the Committee on the Judiciary United States Senate for the hearing on S. 598, The Respect for Marriage Act: Assessing the Impact of on American Families on July 20, 2011

Video: Evan Wolfson Discusses MLK Legacy, Freedom to Marry

University of Michigan — 25th MLK Symposium

In Celebration of Martin Luther King, Jr. Day, Freedom to Marry President Evan Wolfson was invited to the University of Michigan Law School to deliver a keynote address on the struggle for civil rights in the context of marriage for same-sex couples.

Wolfson discussed the impact of Dr. King’s legacy on his life and activism and told the audience the best way to honor Dr. King’s commitment, sacrifice and hard-won gains is to end the denial of the marriage from same-sex couples. He went on to say, “Is the freedom to marry inevitable? The answer is, that is up to us. This is our time. In the name of those who came before us, in the name of those we love, in the name of those to whom we seek to leave a better country and world, let’s make it so.”

Click here to read the entire speech.

VIDEO: 2020Vision: Winning the freedom to marry this decade

American Psychological Association

Evan Wolfson presented an invited address at the APA’s 2010 annual convention in San Diego, California. It is titled 2020Vision: Winning the freedom to marry this decade. This address took place on Saturday, August 14, with Gregory M. Herek, PhD making the introduction.

Evan Wolfson’s Speech at the National Employment Law Association-New York

National Employment Law Association-New York

“The path ahead is clear: we need more of us, gay and non-gay, speaking with others in our circles and beyond about the shared values of family, fairness, and freedom – the values underlying this human rights movement, a movement in which NELA / NY has played a proud part.”

Evan Wolfson’s Comments on the 40th Anniversary of Stonewall at the CBST Pride Shabbat

Congregation Beth Simchat Torah

It’s always sweet to come home to CBST, especially when the prayer liturgy includes Jerry Herman!

Ordinarily when invited to share some thoughts on an occasion such as the 40th Anniversary of Stonewall, I’d be inclined to do a compare and contrast of where we were then and how far we’ve come since, with 40 years of retrospect and gratitude.

Or I might reflect on lessons and historical markers… for example, how these 40 momentous years divide almost equally into the 20 “pre-marriage” years from 1969-89 when gay people were primarily fighting to be left alone, not criminalized, not pathologized, not attacked – and then the next half, the nearly 20 years of struggle and progress framed by the freedom to marry work, beginning with the Hawaii and DC marriage cases launched in 1990-91.

Of course such a way of dividing the movement’s history into those two twenty-year periods would oversimplify.  In fact, gay people have been challenging exclusion from marriage pretty much right since Stonewall.  In fact, the first wave of marriage cases brought by couples in three states came as early as 1971. 

The big difference between the first wave and the second and third waves, of course, was that in the 1980’s, the AIDS epidemic shattered the silence about our lives forcing society to see us as partnered, grieving, and injured by discrimination, and prompting us to better understand our vulnerability and our power, and the imperative of fighting for the freedom to marry and the protections, security, and respect we deserve and need.

In the second 20 years, the years shaped by the crucible of HIV/AIDS and framed by the freedom to marry, our movement claimed the human right not just to be “left alone,” but to be “let in.”

Yes, ordinarily, an anniversary like this would inspire these kinds of historical reflections and a recap of 40 years of milestones… but the truth is that so much has happened in just the past few months – indeed so much has happened in just the past few weeks, past few days:

  * Delaware just become the most recent state to pass a gay rights law
  * Nevada’s legislature overrode the governor’s veto to pass an “all but marriage” law, despite the anti-gay constitutional amendment stampeded through under Bush/Rove
  * the federal government officially apologized to gay pioneer Frank Kameny, more than 50 years after he was fired and fought back
  * the U.S Conference of Mayors passed a resolution in support of our freedom to marry
  * changes of heart in favor of marriage equality came from diverse and surprising new supporters including:

              + Republican operative Roger Stone
              + Nassau County Executive Tom Suozzi and U.S. Senator Chris Dodd – who each wrote op-eds saying they used to support civil unions and now realized, they were wrong
              + and, most strikingly here in New York, the man who singlehandedly blocked our marriage rights last year, former Senate Majority Leader Joe Bruno: “Life is short, and we should all be afforded the same opportunities and rights to enjoy it.  I support the freedom to marry.”

Yes, so much is happening around us right now that we can’t recap 40 years… we want to, we have to, look forward.

Still, let’s do one bit of remembering, stretching back, if we can, past the cascade of advances and chorus of new voices of the moment way back to… last November.

Way back on Nov. 4, we marked Election Day with an almost overwhelming mix of elation and pain.  We thrilled at the historic election of America’s first African-American president, the repudiation of the divisive and destructive politics of the past 8 years, and the promise of a country that would move toward the vision we hold.  And that same night, we grieved the blow of California’s Prop 8 and the fear it raised that our progress might be stymied.

I take this one look back tonight, because of how all that has played out.

It rapidly transpired that the wonderful federal election results, though still full of promise and meaning, were not self-executing.

With all that is good and hopeful, we’ve seen some serious stumbles by the Obama Administration – months of disappointing inaction followed by some very disturbing and intolerable actions in recent days.

And, fortunately, we’ve also seen a strong and powerful engagement from our movement to get our work with the White House and Congress back on track in support of the promises President Obama and the Democrats made – and the vision we shared and worked for, a vision I still believe they and we do still share and can realize.

This pressure, and this partnership, we must continue.

And, conversely, it turned out that the loss in California – unjust, harmful, costly, and frustrating as it continues to be – was not the end of the world.

The vote temporarily stripping away our freedom to marry in California proved to be a wake-up call to the too-many of us, gay and non-gay, who had been distracted, complacent, or inactive, a lesson that while winning is possible, so is losing, and justice does not just waft in on inevitability.

Far from halting our advance, however, the November loss rapidly gave way to our literally tripling the number of marriage states in a matter of weeks, as we went from 2 to 6, including Iowa in the heartland and 3 states pushing past civil union to full equality in marriage itself, and still others such as New Jersey and the District of Columbia within reach this year.

Of course our work is not done in Maine.  We all need to contribute to Maine Freedom to Marry to defend that victory against the right-wing effort to take it away by another cruel ballot-measure this coming November – and California taught us the importance of early money from people like us.  Go online and do it tonight, as a mitzvah.

And on this Pride Shabbat, the eve of the 7th day, that brings me to what will be the 7th marriage state, now within reach – if we do our reaching.

In one of my favorite quotes, one politician once said of a fellow senator that, “Like a rotten mackerel by moonlight, he shines and stinks.”

New York’s State Senate still has a chance to shine.  But if we want to win, we need to make it happen with persistent, repeated calls to key senators demanding that they bring the New York freedom to marry bill to a vote, and pass it.

So this Pride weekend, celebrate, march, speak out, and remember – and also donate to Maine, phone or call New York’s Senators through

And starting Monday and in the days and weeks ahead, make a personal commitment to talk with your friends and family and co-workers, and circles.  Talk about why marriage matters, and how how you personally care and ask them to take action.

No more Prop 8’s.

We don’t need to spend another 40 years at this.

The freedom to marry is within our reach, right here in New York, right now – and when we win it, we New Yorkers will, as we did at Stonewall 40 years ago, make our country a better place, and move and mend the world.

Section on Sexual Orientation and Gender Identity Issues Luncheon

The Association of American Law Schools

Section Luncheon: Speaker Evan Wolfson, Freedom to Marry
12:15 p.m. to 1:30 p.m

PODCAST: Securing the Freedom to Marry: What Next?

Philadelphia Bar Association

Evan discussed how our current landscape mirrors Perez v. Sharp, when the California Supreme Court, in a 4-to-3 decision, becomes the first court in U.S. history to strike down race restrictions on marriage. He went on to explain the significance of holding on to marriage equality in California, and how marriage has been the context of many human rights fights through the history of our country.

Evan Wolfson Discusses the Landscape for Marriage in 2008

Freedom To Marry

On June 24, 2008 Evan Wolfson was the guest speaker at the New York office of Dickstein Shapiro LLP. He discussed the landscape for marriage in 2008, and explained why the California Supreme Court’s carefully-worded decision affirming the freedom to marry for gay and lesbian couples is one of the most important milestones in gay civil rights history.

VIDEO: Evan Wolfson at Google


Evan Wolfson visited the NYC Google office on May 29, 2007 to discuss his book Why Marriage Matters: America, Equality, and Gay People’s Right to Marry.

PODCAST: Evan Wolfson addresses Kentucky Fairness Alliance, rebounding after constitutional amendmen

Kentucky Fairness Alliance

Speaking in Lexington, KY, Evan urges the 700+ non-gay and gay attendees not to “let the constitutional amendment be the last word,” but rather, lay out a vision for how to move forward and win marriage equality for the thousands of Kentucky same-sex couples and their kids that the “reachable middle” has only begun to get to know.

Winning Marriage Equality: The Road Ahead

Freedom To Marry

Wolfson delivers the Cal Anderson Memorial Lecture at The Evergreen State College in Olympia, WA, and calls for all of us to engage neighbors and fellow citizens in the personal and informational conversations they deserve — and trust that from that engagement will come marriage. Download pdf ( Listen to the speech (

Evan Wolfson Addresses Editorial Writers at National Conference

Our Media/Freedom to Marry

President of Freedom to Marry, Evan Wolfson addresses editorial writers in Portland, Oregon at the 2005 Annual National Convention luncheon. He discusses the importance of ending discrimination in the ongoing conversation of marriage equality, answering key questions from the writers on why marriage matters.

Love and Doing Something About It: A Tribute to Mary Dunlap

Freedom To Marry

The inaugural speech in the Mary Dunlap Memorial Lecture Series, delivered at the law school at Boalt Hall, University of California, Berkeley, February 24, 2005.

Perhaps the last time I saw Mary was when she accepted an award from the Lesbian & Gay Law Association in New York, sometime in the mid-1990’s.

In her speech that night, Mary told a story of the day in 1987 she argued before the U.S. Supreme Court — the first open lesbian to do so, in the Gay Olympics case.1

In retrospect, I realize now that Mary didn’t dwell on how scary or pressured or demanding that experience of arguing before the Supreme Court must have been, especially then.

Instead, in a very Mary way — wry and funny, but with a bite and a flash of righteous steel — she talked about having heard later through a clerk that Chief Justice Rehnquist after the argument actually expressed his disdain that this lesbian had the audacity to argue before the Court wearing pants. Mary told us this story as she stood before us in the very suit she had worn that day: a dark jacket and matching skirt.

One point of the story, of course, was, as Justice Blackmun put it in his magnificent dissent in Hardwick v. Bowers, “the willful blindness” of those who do not want to see us, do not want to see love and fairness, do not want to see the truth, do not want to act against injustice.3

Mary talked that night, as she often did, about that Supreme Court travesty, the Hardwick case, a decision in which the 5-4 majority said we could be denied constitutional protection for private sex and intimacy because, they claimed, “there is no connection” between homosexuality and family, child-raising, or marriage. Mary’s brief in Hardwick focused on love and the right to choose and share love beyond the reach of the government.

Mary ended her speech that night in a way no one present would forget. Preaching the need to rebound from the blow of Hardwick and redouble the great effort of overturning it, she punctuated her story in characteristic Mary fashion — by proceeding to auction the suit off her body then and there to raise money for the work.

But of the many times I was with Mary, perhaps my favorite memory was from a meeting of the Roundtable, the regular gathering of lesbian/gay rights litigators (later extended to include HIV/AIDS and transgender concerns) that some of us had been attending for years.

We began, as always, by going around the room with intros and updates on what we each were doing.

“I’m Mary Dunlap,” she said. “And I am beginning my second childhood on the theory that it’s never too late to have a happy one.”

This seeming joke, I came to understand, embodied a central element of Mary’s personal and political philosophy: that life is ours to shape and the world is ours to make as good as we can.

Mary believed in love, and in doing something about it.

One of Mary’s poems read:

  Chance throws us out, marbles rolling
  Across the Rockies, down the Himalayas,
  Every which way.
  Sure, luck gave some the valley trail
  And ample water
  But mind, mind,
  Mind drove the horses, found springs
  Mind put the insight gleam
  In Galileo’s eyes
  And in the eyes of Sojourner Truth
  And in yours.
  And neither chance’s marble roll
  Nor luck’s draw can
  Take away the insight gleam…4

That “insight gleam,” that leap of mind and heart and soul, that personal obligation to engage and take action and not find excuses or leave it to others, to shape our world, our lives, justice — this was Mary’s inspiration to us, and it was how she lived.

In America now — and right here in California — we are at crucial civil rights moment, and it is up to us to act.

As in other such civil rights moments, our country is once again debating how the majority treats people in their midst us.

Once again the civil rights question is being contested on the human rights battlefield that marriage has always been.

The French suffragist, Hubertine Auclert, the woman who coined the word “feminism” in the late 1800’s wrote something that has always stuck with me: “If you would obtain a right, first you must proclaim it.”

Mary understood this feminist principle, and applied it to our struggle to end our unfair exclusion from marriage.

In 1989, she was one of the drafters of the resolution that passed the San Francisco Bar Association and, then, the California State Bar Convention, condemning the discriminatory denial of our freedom to marry.5

In 1991, as the Hawaii case launched the rich and powerful and ongoing debate over marriage equality, Mary wrote one of the early law review pieces on how we should think about this question of civil rights, build understanding within our own communities, and enlist new allies and public embrace of fairness for our families.6

Mary knew that the work of ending discrimination, of enlarging possibilities, of healing the world, is scary as well as exhilarating, painful as well as transformative.

“How to make change in a violent world, if not to dream aloud,” Mary wrote.

But Mary believed in action as well as the dream, and would have understood well where we stand today and what, together, gay and non-gay, we must do.

Mary would have understood that we are in a moment of peril now, confronted by a fierce campaign of assault that is anti-marriage equality, yes, but also, anti-gay, anti-choice, anti-women’s equality, anti-civil rights, and anti-separation of church and state.

Scary and serious as the threat is, Mary would also have known that we are winning. She would have welcomed the attainment of marriage itself in Massachusetts and Canada. Mary would have heralded the strides for and toward marriage equality from South Africa to Israel, from Spain to Taiwan. Mary would have understood that by ending the exclusion from marriage, the thousands of couples in Massachusetts and elsewhere have made it real, giving the reachable-but-not-yet-reached public a chance to see families helped and no one hurt, take a deep breath, and embrace fairness. Mary would have grasped the power of our challenge to society, to see couples like Del Martin and Phyllis Lyon (and thousands like them) as no less worthy, no less entitled to equality in rights, responsibilities, and respect, no less whole, just because as two women building a life together, they don’t have a man.

Mary would have seen that ours is part of a struggle larger than gays, larger than marriage.

Mary would have plunged into her share of the three important tasks confronting us: winning marriage in more states so as to keep making it real; repelling attacks, federal and state by state, constitutional as well as legislative, as much as possible and, where we can’t win outright, engaging the battles so as to at least lose forward, moving public opinion from 30% support to 40% and on, empowering more voices in every corner of the country to champion equality; and enlisting more diverse messengers with compelling stories, gay and non-gay, into this debate, speaking to diverse constituencies and communities, geographic and demographic, to move them to fairness.

And Mary would have know that you here in California have a special obligation and opportunity to lead us forward and transform this civil rights movement yet anew.

With a promising court case moving ahead, we must create the climate of receptivity in which the judges can do their job and are emboldened to do the right thing.

With Assemblymember Mark Leno’s “Religious Freedom and Civil Marriage Protection” bill likely to move through the legislature this year, we need you to contact legislators and make it happen, get that bill to the Governor’s desk, and work to persuade him that he can and should sign it into law.

And you need to understand that, alongside this affirmative opportunity and work, you are under attack. There will be a ballot measure to take away your rights, roll back your gains, and possibly lock second-class citizenship into the California constitution for a generation. You are already in a campaign and the clock is ticking; every day you are not campaigning is a day you are losing the chance to give the fair-minded, reachable public the two things they need to embrace fairness: information about our lives and the wrong of discrimination, and time to absorb it and rise to fairness.

Whatever organizations you belong to, gay or non-gay, ask them now: “Where’s the campaign? How can I help? Where do I send the check? What can I do?”

And don’t wait for them. Make a personal commitment, beginning now, to ask others around you, in concentric circles from easy to harder, to support an end to the exclusion from marriage and stand up against attacks on gay people, our families, and America’s and California’s commitment to equal justice under law.

Mary didn’t live to see the overturning of Hardwick.

She didn’t live to see same-sex couples marrying in Canada and, as of last May in Massachusetts, on U.S. soil.

She didn’t live to see us come within reach of marriage right here in California.

But Mary would not have hesitated in this civil rights moment, and would not have left the work for someone else to do.

Mary would have taken action and encouraged each of us to do the same, reaching out to non-gay and gay people to ask them to make their voices heard and end injustice.

Now is our time, and here in California is our place to seize what Mary captured in another poem nearly 15 years ago:

  ...[M]arriage —
  The ones we couldn’t have,
  The ones we had,
  The ones that had us.
  [S]ee, somehow, beyond the hurt,
  A future generous and warm with choices.7

1 Thanks to NYU law student, Bert Leatherman, for his helpful and quick research, enabling me to invoke for this tribute the best source, Mary Dunlap’s own words in poetry and prose.

2 San Francisco Arts & Athletics, Inc. v. United States Olympic Ctee, 483 U.S. 522 (1987)

3 486 U.S. 186, 205 (1986) (Blackmun, J., dissenting)

4 Mary C. Dunlap, “Adventure,” reprinted in Wendy Williams, “The Gifts of Mary Dunlap (1949-2003),” 19 Berkeley Women’s Law Journal 14-15 (2004)

5 Mary C. Dunlap, “The Lesbian and Gay Marriage Debate: A Microcosm of Our Hopes and Troubles in the Nineties,” 1 Law & Sexuality 63n.* (1991)

6 Ibid.

7 Dunlap, supra note 5, p.76 n.37 (reprinting Mary’s “soul-searching poem,” first presented to a conference of the Lawyers For Human Rights, Whittier College, Los Angeles, CA, July 15, 1989). I have taken some liberties with this concluding passage, in hopes of capturing what I think Mary would say to say us today.

Praying with Our Feet

Freedom To Marry

Evan Wolfson was honored by Kolot Chayeinu (“Voices of Our Lives”), an engaged, progressive, Jewish congregation in Brooklyn, at Praying With Our Feet, Dancing With Our Souls, Kolot Chayeinu’s Annual Gala Celebration & Dance Party. In accepting his honor, Evan galvanized the audience with a call to action.

It is a joy to be here with so many of my friends, in this congregation and from around the country. I am deeply moved.

One of my favorite lines in theater comes from the play, Amadeus. The mediocre composer, Salieri, rages against God for making him more popular than Mozart, whom Salieri alone recognizes actually has the superior talent. Salieri curses his ill luck at “being called ‘Distinguished’ by people incapable of distinguishing.“1

You have spared me that fate; how especially touching it is to be honored by people, and an organization, whom I so much like, respect, and honor.

I would like to give a special thank you tonight to:

  * my nearly lifelong friend, Russell Pearce, who was a gay-rights activist before I was, was and is a connector who brings people together, and was and is one of my earliest and most important mentors in a humane and inclusive social justice vision;
  * Rabbi Lippman and the other honorees from this congregation, Lisa Auerbach and Lisa Zbar, as well as the marriage-equality activists among you;
  * the Freedom to Marry staff and steering committee members here tonight;
  * my brother-by-birth, Michael Wolfson, here with me tonight, always; and my brothers-by-choice — my college roommates, Ken O’Brien and Michael Berney — who traveled to be here for this celebration , and my sister-by-choice, Michele Hirshman;
  * and my wonderful sweetheart, Cheng He.

Thank you also to this unique and loving congregation, Kolot Chayeinu.

As a high-powered and engaged gathering of people who believe in both the soul and the feet, the dream and the action, you know that we must together do our part to mend the world.

You know that gay people are not the first to fight against discrimination, nor even the first to fight for needed change and an end to discrimination within marriage.

You know, as I describe in my book, Why Marriage Matters, that marriage has always been a human rights battleground on which our nation has grappled with larger questions about what kind of country we are going to be:

  * questions about the proper boundary between the individual and the government and who gets to make important personal choices in life; questions contested in battles over divorce, sex and intimacy, and even the use of contraception;
  * questions about the equality of men and women or whether people should be allowed to marry the “wrong” kind of person; questions contested in battles over marital status and sex roles, and even race restrictions on the choice of a life-partner;
  * questions about the separation of church and state; questions contested in the difference between religious r-i-t-e-s of marriage and the civil or legal r-i-g-h-t to marry.

As a nation, we have made changes in the institution of marriage — and fought over these questions of whether America is committed to both equality and freedom — on the human rights battlefield of marriage.

We are met on that battlefield once again.

We must remember and learn from the history, the people, and the movements who have gone before us — including history’s original and most enduring liberation story and metaphor, the Exodus.

What better example than Exodus for the very theme you have chosen for this gathering tonight: “Praying with Our Feet.”

As Michael Walzer points out in his book, Exodus and Revolution, the Children of Israel were not carried to freedom on “eagle’s wings” — they had to march, and it wasn’t easy.2

As they prayed with their feet on their march to freedom — to a vision and attainment of justice and liberation and enlarged possibilities for all humanity — they had to be brave and take a leap of faith, ever single step.

They had to endure the wilderness to get to the Promised Land.

Moses and Miriam and the others who led the people to freedom had to get them there through pain and difficulty, through the resistance and attacks of their enemies, through the people’s (and even the leaders’ own) fear and hesitation, and through the step-by-step engendering a sense of entitlement and empowerment that are necessary for — and in turn create — transformation.

The marching had to happen despite — and the Torah teaches us, because of — the people’s kotzer ruach, their “shortness of spirit,” the dispiritedness caused by oppression.3

This slave-mentality, the Torah relates, was expressed in the people’s frequent “murmurings” against Moses, Joshua, Caleb — and against the exodus from slavery itself.4

Maimonides tells us: “the deity use[d] a gracious ruse in causing [the people] to wander perplexedly in the desert until their souls became courageous… and until, moreover, people were born who were not accustomed to humiliation and servitude.“5

This dynamic was also described by Karl Marx, albeit, characteristically, a bit less charitably: “The present generation is like the Jews whom Moses led through the wilderness. It has not only a new world to conquer, it must go under in order to make room for men who are able to cope with a new world.“6

I wish Tony Kushner were here to help us make Marx feel better — and yet it is true that we have, shall we say, generational momentum on our side.

As the Exodus story reminds us, it will take some of our own people and allies — as well as the others we must reach — time to rise to fullness and fairness.

And, Lord knows, we’ll hear “murmurings.”

To get to — or bring about — the Promised Land, we, too, will have to march, not fly, because that’s the way it works.

We learn from Exodus, not to mention other social justice and human rights movements with whom we ally and overlap, that the proclaiming, the vision, the work, the ask, the engagement — time and information moving hearts and minds — not only are the path to winning, but, in part, are the transformation, the win itself.

From marriage a reality in Massachusetts to Canada, from movement underway in Spain, South Africa, Taiwan and Israel to California, Washington State, New Jersey, Connecticut, and New York, we have shown we can do this — and are also showing non-gay people that families are helped and no one hurt when the exclusion from marriage comes to an end.

All across the country, hearts and minds are opening as the fair-minded majority of Americans get the information and time they need to embrace fairness.

But it does take information, and it does take time.

We cannot move the middle, we cannot end this exclusion, if we fail to press forward, and lead, and win first where we can. We cannot move the middle, we cannot end this exclusion, if we collude with our opponents in depriving the reachable-but-not-yet-reached of the time and information they need and deserve.

This means we must not take murmurings — “too much, too fast, too soon” — or take “no,” or “not now,” or “not so fast” — for an answer, any more than others seeking to end discrimination have in our nation’s past. We must not fail to push past discomfort to give people our real stories and asks, and the time to absorb them.

We must not internalize refuted right-wing attempts to spin a mandate for bigotry from a narrow election, or succumb to the scapegoating of gay people, marriage equality, or progressive positions that our opponents seek to stoke through their falsehoods.

Democrats, progressives, fair-minded Republicans, and our other friends and potential allies will never be anti-gay enough to satisfy our opponents. If they flinch or falter in the courage of their convictions, if they flee or fail the civil rights question of gay people’s inclusion and full equality, they will find themselves gaybaited — as we saw this week, AARP’ed — anyway, and our families will be injured, and all progressives and the country will be the losers.

We must help our allies find the voice of authenticity and make the moral case for ending discrimination in marriage, beautifully expressed by yet another court this February, right here in New York.

New York’s high court will most likely this year rule on whether to end marriage discrimination in this state this year.

We literally have a matter of months to work, month to month, person to person, group to group, here and now to create the climate of receptivity that encourages those judges to do the right thing, reassured that non-gay and gay New Yorkers will support and embrace their ruling.

To engage prominent New Yorkers and others, we need the talent and connections and commitment in this room. We need you to take action.

Kolot Chayeinu, Voices of Our Lives, is not just the name of this congregation, but is, indeed, the key to winning social justice.

We move the opinion-leaders and the public by helping more non-gay people hear the voices of our lives — your voices, gay and non-gay — the personal ask that provides the information people need, again and again, over time, beginning now and here.

As Walzer puts it, “the way to the [promised] land is through the wilderness. There is no way to get from here to there except by joining together and marching.“7

Tonight let’s “dance with our souls”; tomorrow let’s pray with our feet, do our part, truly reach out to others now, and thus bring America and our New York closer to the vision of a Promised Land of milk and honey — of the pursuit of happiness, liberty, equality, including the freedom to marry — and justice for all. Thank you.

1 Peter Shaffer, Amadeus, Act II, p.93 (Harper & Row, 1980)

2 Michael Walzer, Exodus and Revolution, p.10 (Basic Books 1985)

3 Id. at 47.

4 Id. at 13 (ten such occasions of “murmuring”).

5 Id. at 54.

6 Id.

7 Id. at 149.

The Scary Work of Winning

Freedom To Marry

Wolfson gives the Lavender Law keynote address in Minneapolis, addressing the nation’s LGBT lawyers and allies, and lays out the vision of how we are winning, with strategic lessons on how to cope with defeats and, where necessary, “lose forward” to victory.

TRANSCRIPT: Chicago discussion on marriage equality

Chicago Bar Assn., Illinois Bar Assn. ACS, Jenner & Block

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.



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


  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.


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.


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


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.

Now, I said we are not the first people to fight on the battleground of marriage.

This is not the first time that marriage has been the place on which questions of citizenship, equality and fairness and people rising to the good angels of their nature, and others resisting and manifesting the worst, have played out. We don’t have the hours to spend all the time going through the arc of history and the ways in which marriage has been invoked, but let me just briefly remind you of four major changes in the institution of marriage and access to it that have taken place within the lifetime of most of the people in this room.

Our opponents like to say that marriage has been the same for 6,000 years, and that is why it should remain the same as if somehow 6,000 years of doing something wrong is a constitutional reason for not doing it right. But they are not even right about their claim.

In our lifetime and not in other countries but here in the United States, there have been four major changes in the institution of marriage, each at least arguably as sweeping or as substantial a change in the law of marriage as anything proposed here tonight; Those four are:

  1. First, ending the invidious restrictions on who can marry whom based on race. As most of you know here, that is not some artifact from the Civil War.
    The exclusion and the restriction based on who can marry whom or whether you are allowed to marry someone of quote/unquote the “wrong” race continued in this country until 1967 when in the best-named case ever, Loving v. Virginia, the Supreme Court said that must stop. When the Supreme Court ruled in Loving v. Virginia that our country’s promise of equality did not permit this kind of restriction on marriage, the polls showed 70 percent of the American people supported restrictions on interracial marriage, but the Court did its job and our country is better for it. That was the first revolution.
  2. In the second revolution or change in the marriage law, we ended the restrictions that prevented people from leaving a failed or abusive marriage.
    It wasn’t that long ago that people literally had to leave their states and go to some other state in order to get out of an abusive marriage; and when they came home from Reno or wherever that classic, “The Women,” might have you believe it took place, when they came home, they often had to litigate whether they were still married or not, because some states would say divorce is against God’s law. It’s against God’s plan. It’s against the definition of marriage.
    People literally did not know from day to day or state to state whether they were married or not; and eventually again the Court stepped in and said, “It is intolerable to have a country where people don’t know from state to state or day to day whether they are married,” and found that your divorce properly entered into must be honored throughout the rest of the country.
    How anomalous it would be if your divorce has to be honored throughout our country but your marriage need not be.
  3. The third major change in our lifetime in the institution of marriage was a very important one. It was ending the legal subordination of women that took place in the “traditional” institution of marriage.
    It was not that long ago that women who got married actually lost legal rights. For much of American history women lost their legal identity as a separate person when they got married.
    The whole Mr. and Mrs. “His Name” thing reflected the law that said that their identity was fused as one, and it was his.
    Women lost legal rights when they got married; and, again, this was no artifact from some ancient era as our opponents now would like people to believe.
    As a young attorney, I myself — while not doing pro bono work for Lambda, my day-time job was to work as a prosecutor and I worked on the case that led to the ending of what was called under New York law the marital rape exemption; and that provision of law which at one time existed in all 50 states and existed until 1984 in New York.
    That provision of law said that a husband could not be prosecuted for raping his wife because he had a right to take what he wanted. This is not the ancient past. Those battles are live and real and strong, but we ended the legal subordination of women in this country and “redefined” marriage, if you will, as a commitment and relationship of equals.
  4. In the fourth major change in the institution of marriage, the Courts found that the government has no business dictating first to married people — ultimately extended to unmarried people — dictating important decisions on whether or not to use, for example, contraception.
    That case was in 1965, Griswold v. Connecticut.
    The reason I stopped to mention the name of the case is because you may have heard about it a little recently. It came up and not just in the Lawrence case.
    It came up when, as you may remember, Senator Santorum several months ago chose to make an attack on the Supreme Court in the hopes of intimidating the Court from ruling as they ultimately did in Lawrence. Santorum’s diatribe got a lot of attention, because he did a lot of gay bashing and particularly because he went on to a riff about “man on dog sex”; but in the course of that tirade, Senator Santorum also attacked Griswold, attacked the right to privacy, attacked the Court’s important role in clarifying that in America decisions such as whether or not to use contraception, let alone whether or not to marry and whom to marry, that those decisions belong to the people, not to the politicians. Senator Santorum attacked that principle. Yes, indeed, marriage has been a battleground throughout American history.
    Marriage remains a battle ground today and gay people’s freedom to marry is but part of that longer arc of choice and equality and separation of church and state and the proper boundary between the individual and the government and respect for personal commitment and personal choice and the pursuit of happiness as opposed to those who would impose their worldview through the weapon of the government on others.

When we stand up to fight for the freedom to marry, we stand not only for gay people. We stand not only for the non-gay and gay children being raised by lesbian and gay parents—children who are being punished by our government for having quote/unquote the “wrong” kind of parents, by having their families denied the vast array of protections and responsibilities that cut across every area of life from Social Security to access to health care to immigration to parenting rules to medical decision-making.

Those kids, those families, are denied those protections because their families are denied the freedom to marry; and when we stand up and fight, as we must at this juncture in history, we fight for them. But we fight for more than just those kids, more than just gay couples, more than just those families.

We fight for our country’s commitment to equality and choice and the proper respect for individual freedom and for stronger communities, because what Canada has shown, what Europe is finding, what countries from Taiwan to South Africa to Israel to countries in South America… what they are showing the United States is that a country, a jurisdiction, a place that respects people’s choice is a country, a place, that is upholding the values that America we believe stands for. And when we join in that fight, we join in this historic work of keeping America true to that promise.

Now, we have three important concurrent tasks at this juncture in history. There are three things we are called upon to do, because this is not just a history lesson.

This is not just something that happened in Hawaii or Vermont or Massachusetts.

This is our country. This is as live as the State of the Union, as present as here in Illinois where anti-gay legislators are introducing yet another set of measures to write yet another layer of discrimination here in this state against its families.

This is a battle waged in every corner of our country where our opponents are seeking to make our country a house divided, and this civil rights moment has called us.

It is we who are called upon to stand up now and make the difference. In doing so we have three concurrent tasks, and I hope that when we get to questions and answers and after we hear more legal information from Pat and more of the nuts and bolts of what is going on here in Illinois, that we can talk directly about what this group of determined, committed gay and non-gay people can do in these three concurrent tasks.

The three concurrent tasks in front of our civil rights movement today are:

  * Number one, to secure the marriage licenses in Massachusetts.
    Right now Governor Mitt Romney is getting ready to pull an Orval Faubus, or for those who don’t know that piece of history, a George Wallace. Some politicians are literally standing in the doorway to block loving couples from crossing the threshold. They are seeking to interfere and delay and obfuscate and prevent the Constitution’s clear command of equality, as recognized by the Supreme Judicial Court of Massachusetts, from taking effect. So that the Brown v. Board of Education anniversary can receive the historic acknowledgement that is so fitting, we must oppose that effort to block equality in Massachusetts, and we must bring that victory home by supporting the people in Massachusetts who are on the front lines of liberty right now.
  * The second concurrent task, because we have to do them together, is we must in every state in the country and certainly here at home in Chicago and here in Illinois, we must repel attacks.
    Whether it be the outrageous notion of writing discrimination into the United States Constitution for the first time ever in American history to take rights away and to fence a group of Americans out, or whether it be the ballot measures and state constitutional amendments layer upon layer of discrimination being proposed in states that have already enacted anti-gay and anti-marriage legislation on top of the second class citizenship we already have by not being able to marry — whichever form those attacks take, we must repel this concerted campaign of attack that is underway state by state by state and at the federal level right now.
  * The third concurrent task is while doing these important pieces of work, we must enlist diverse and compelling messengers to tell their stories and to find their voices in the public debate, the debate that we are winning.

Why is the right wing mounting this attack?

Why are they seeking to put yet another law upon top of another law on top of another law to discriminate?

It is because they know they are losing the discussion.

They are losing, because the more people talk about it, the more they hear what the Court in Massachusetts heard, what the Courts in Canada heard, what the Court in Vermont heard, what the Court in Hawaii heard. They are hearing that there is no good reason for this exclusion.

The key to winning this struggle is to fight against the attacks but most of all to reach out to our neighbors; to take a personal responsibility to tell our stories, have our voices heard; and to ask our neighbors and particularly our non-gay families, friends, co-workers and neighbors to do the same.

The right wing is trying to stampede through this attack now, because they know it’s their last shot, but fortunately for us the more they try to stampede an attack, the more people talk. If we can just withstand the attack enough, that talk is what is opening people’s hearts and minds to allow them in Lincoln’s words to “think anew” and to do what they have done in other junctures in American history: move toward equality, inclusion, respect and fairness.

The opponents of equality cannot shut this down, because as Martin Luther King said, truth pressed to earth will rise again; and the truth is that ending discrimination is the American thing to do.

The truth is there is no good reason for this discrimination. The truth is that, as King said, the time is always right to do right.

The truth is we are winning this fight. The truth is most Americans are fair.

The truth is non-gay people can be led to care and to accept and to speak out in favor of equality; and if we do our work now, we are the generation that will be able to say — as we like to think we would have said, had we lived 30 years ago, when there was another civil rights moment — we stood up and we did our part.

Here in Illinois, here in the United States, as all around the world people are doing, let’s do our part. Thank you.


MS. LOGUE: So, hopefully, as I have said, this will come about in May 2004 in Massachusetts.

There is this sort of side show going on right now, the advisory opinion action, where the Senate of Massachusetts has gone to the Court for an advisory opinion, which is actually quite common in Massachusetts unlike most states; and they want permission in advance from the Court to say “what about if in response to your ruling that says you cannot exclude same sex couples from marriage, we were to pass a law that said, ‘Same sex couples are excluded from the institution of marriage, but we will give them civil unions.’ Would that satisfy your decision?”

There has just been a lot of briefing on that. Lambda participated in an amicus in the Goodridge decision and also in this action just reinforcing to the court the tradition of not accepting so-called separate but equal solutions in our country; and we hope that the advisory opinion side show will go by the way side.

And in — what is it now, 120 days or so, Massachusetts will start the process of marrying people and joining with Canada in broadening access to this right in North America.

Also, out there in New Jersey, is Lambda’s challenge on behalf of seven couples. We lost in the trial court in the fall, which — well, I will just move on from there to say we are now in the intermediate appellate court in New Jersey.

We are briefing away trying to digest what seem to be daily developments on this issue and work them into that case.

I have to say a bit about the cases that have gone before in Hawaii and Alaska, both examples of successful rulings followed by constitutional amendments.

We can’t underestimate the power of the other side to get majority support for laws and constitutional amendments that would try to deprive us of this right, what is starting to be a usual rather than an unusual technique of just changing the rules and applying a hammer to squelch all discussion, trying to take care of the issues all at once.

  * There is this notion that somehow they can consistently say “well, this is a state by state issue and we leave it to the states;” but as soon as one state grants this, it’s “We need a federal constitutional amendment, because we must stop that judicial activism.”
    Where would we be with civil rights without what they call “judicial activism,” which really just means fulfilling a fundamental judicial role, of course, of enforcing the constitution.
  * The second fundamental misconception out there is that we don’t need marriage to protect our relationships and families, and while I don’t want to deprive any of you of business if you are domestic relations lawyers, there is only so much you can do.
    Please, please do a will. Don’t say “I’ll do it next week.” Do a will. Do powers of attorney. Do guardianships if that is in your life plan, for yourself and your children. Do second parent adoption if you have that option.
    Do these things. But let’s acknowledge that there is only so much you can do.
    There are more than a thousand federal benefits tied to marriage. There are hundreds of benefits in Illinois tied to marriage. Your paychecks reflect deductions every month for Social Security.
    You are paying for other people to get death benefits when their spouse dies.
    We are paying for other people to get pension benefits when their spouses die or retire, and these are things that no amount of agreements that I can take into court with my partner are going to help with.
    Those agreements, of course, as we have seen, only go as far as they go. They are subject to revocation, subject to dishonor. We had this difficult case of this guy who traveled across country with his partner, armed with a perfectly valid power of attorney; but when his partner needed care in Maryland, the hospital wouldn’t honor it, and maybe it was just a bureaucratic error, but what happened in six hours, the six hours it took for his partner’s family to arrive to say he should be let in, his partner slipped into a coma.
    He died shortly thereafter and they never got to say goodbye, let alone exercise those powers of attorney. So do them, but we cannot stop there. We can’t stop there.
  * The third fundamental misconception, I guess, that is out there now is that civil union is the same thing; and civil unions are a regularly available thing.
    There is no doubt that civil unions are a good thing, but they are not equality, and they are not marriage. Let me just talk a little bit about that.
    People say “why do you go after marriage equality? What about domestic partnership.”
    First, I have said for many years that what Evan is doing — and this man is truly a hero — but what Evan is doing and what Lambda Legal is doing to seek marriage equality is the surest way to secure domestic partner benefits and civil union. It’s all connected.

There is no doubt in my mind that if you are not reaching for true equality, you will not be getting people to move along the continuum even as far as they are.

We would not have civil unions in Vermont without a challenge to the marriage policy.

We wouldn’t have registered domestic partnerships in California without the pressing of thousands of gay people there for marriage.

We wouldn’t have what they call reciprocal beneficiary laws in Hawaii. One thing leads to another when you make the case for, equality but none of those should be confused with true equality.

So even if we’ve had improvements in the landscape, we don’t have what other people have.

The thing about civil union — and this is another example or parallel to the first misconception about all the places we can get married — people seem to think that civil unions are widely available. “Why don’t you just go get a civil union?”

They can register us in Cook County, which is very nice, but only Vermont has this thing called civil union. By the way you don’t need a residency requirement to go there.

You don’t need a residency requirement to go to Canada and get married. In both cases there are residency requirements for divorce. I just wanted to point that out. Just in case. You never know. Sometimes things don’t go right.

But a civil union is only a parallel structure. We call it separate, but not truly equal. It is an attempt by the State of Vermont at a political compromise. It attempts to give all the state-based incidents of marriage to same sex couples, within Vermont and it does do mostly that; but what Vermont cannot do is make that institution portable across state lines.

What it cannot do is insert the words “civil union” where the word “marriage” appears in thousands of laws and policies in our country.

It cannot — and God forbid, because we are in a mobile environment, you got transferred from Burlington to the City of Chicago — because Vermont cannot guarantee that the great officials of our State will see you as anything more than an unmarried couple with no legal relationship whatsoever.

So I don’t want to belittle it, because it’s really an important advance, but separate but equal is inherently unequal.

The other piece of it is that — and Evan touched on this a lot — it’s about exclusion. There’s a profound statement of inequality, personal inequality, in the whole notion that we need separate institutions.

It’s not even like there were civil unions already and someone brought a marriage challenge and they said, “Well, we have civil unions, that is good enough.” It was “Let’s come up with something totally different. We are so scared, we are so unwilling to include you.”

“We are so unwilling to say that you are as worthy of this as we are, that we are going to go out of our way to create an entirely separate thing,” And it excludes us not just from the institution, but from the language of marriage.

I am not big on rhetorical stuff, but this is really important. Think about what it means when someone says to you they are married. Think about all the things that go into this in our culture — maybe you had this from your parents, the urging in our society of people to get married, the emphasis on marriage, marriage, marriage and what that means in everyday social life.

Have you tried to tell someone “I am civil unionized?”


MS. LOGUE: And “I am a registered partner.”


MS. LOGUE: These are good things, but it doesn’t convey it. It just begins a conversation instead of taking you along to the shared social understanding of what your relationship is about.

There are some problems with marriage in this country. We are talking in ideals. We are talking about having the same rights and decisions that others have. But we can’t deny as some people try to do that there is a fundamental difference in whether you have that access or not. You can’t just create a second institution and pretend that it’s the same thing.

The Court said in Goodridge, “Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity and family.” And then, quoting Griswold, “‘It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.’ Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution and the decision whether and whom to marry is among life’s momentous acts of self-definition.”

I would like to think those are the words of a court that is not about to back down from equal marriage rights and hopefully, as Evan said, we will soon have many more gay people in our country who get married and this notion that the world is going to fall apart will hopefully lose some of its steam.

Let me talk a little bit about Lawrence. I am really sorry that Bill Hohengarten couldn’t be here to talk about that.

I don’t know how many of you were here on June 23rd when Paul Smith and I were here to talk about Lawrence, what we thought would be the last possible day for a decision. And then it was decided three days later, so we had to come up with something to say.

Paul Smith’s argument in the case was just extraordinary, and Jenner & Block’s work on the case was just extraordinary.

Bill Hohengarten was our eloquent draftsperson, the major writer of our briefs. Of course, we all contributed. I am just really sorry that he couldn’t be here. He is very thoughtful on these issues.

The Goodridge case draws positively on Lawrence. I must point out that the Standhardt case, a case that is currently on appeal in Arizona on marriage rights that so far have been denied also draws on Lawrence, wrongly in my opinion, saying basically that it is not even relevant to marriage equality.

The trial court in Lewis, our New Jersey case, produced something like an 80-page opinion with one passing mention of Lawrence. There is something in Lawrence, in Justice Kennedy’s opinion for everyone. Justices Kennedy and Sandra Day O’Connor went out of their way to distinguish the case in front of them from marriage, each having. Some sentence in there to the effect that we are not deciding marriage today.

Let me just step back and say that every amicus brief in support of Texas in this case basically said briefly:

  “You should keep the Texas sodomy law, and now here are 15 pages on why you should not grant equal marriage rights.”

This whole emphasis coming out of Lawrence and the events of the summer, the “backlash,” are part of a very orchestrated plan by our opponents to turn all of this into a line in the sand discussion about marriage.

And in the end, and ironically, it’s Justice Scalia, who says this decision is all about marriage, who says you have already won that issue today.

I think he is at least correct that the opinion is really quite helpful for equal marriage rights, even though there is a very strong sense of “don’t be hurrying back here any time soon.”

Lawrence v. Texas was a substantive due process ruling, a liberty ruling, a privacy ruling. The Court is usually hard on those cases, and the big door closer is “we are not creating any new fundamental rights in this country.”

Marriage though is already one of those recognized fundamental rights. So we may well see a case one day that comes back somewhat in the posture that Lawrence came, which is basically if we understand what this right is really about, we have to understand that it has to be available on equal terms to everyone.

In the Hardwick case, as Evan said, it was called “facetious” to think of fundamental rights of sexual intimacy that included the homosexual side of it.

In Lawrence the Court understood — Justice Kennedy understood — that the claim in Lawrence was about liberty for all, about spatial and more transcendental aspects of privacy for all, about our rights of intimacy, our right to have a space free from government, our right to make decisions free from government.

I often wonder how government got into the business of marriage, but it’s there and our right to make some decisions for ourselves and to keep the government out of those decisions — such as who to marry and to be intimate with — is strongly reinforced in Lawrence. So if it comes in that posture, of course, of vindicating liberty for all you can expect us to make those connections between the two frameworks.

It may come one day in the form of just pure equal protection, i.e., “You can’t exclude us from what you grant everyone else.”

And here we encounter these arguments that marriage is “by definition” the union of a man and a woman; and, therefore, you are not similarly situated to people who want to get “married” because you don’t want to enter into something that is between a man and woman. You are trying to do something else, which involves someone of the same sex. Therefore, you are not talking about equal entry into the same institution. You are talking something entirely different, and we don’t recognize that.

There are a lot of people in the country, we have to understand, who really do fundamentally think that what we are asking for is something different from what they have and the choices that they make. But of course it is the state that defines who can marry, as it defines who can practice law or sit at a lunch counter, and in the end equality is not going to be held captive to discriminatory definitions.

I want to share just a few bits from the majority opinion in Lawrence that I think are really important.

First, that it was based in a very modern understanding of liberty, not just what was etched in stone when the 14th Amendment or the original constitution was passed, but looking really at what is happening over time in the states, which is frankly a lot of why so much energy is put in by our opponents to have these state laws passed that try to emphasize that they won’t want us to marry.

But it also goes beyond that and looks at the notion of liberty in a much more fundamental way. It’s not just tracking and keeping score of who is willing to give who what rights, but what is it that we as a free people expect to be left up to individuals to decide for ourselves. At the heart of liberty are intimate and personal choices central to the dignity and autonomy of the person, specifically mentioning marriage, procreation, contraception, family relationships, child rearing and education and saying — and I quote, “Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do.” This certainly suggests that there is something to be made of the decision in the marriage context, as in Goodridge. Over time we are going to figure that out.

I do want to emphasize that the New Jersey case and the Massachusetts case, are only proceeding on state constitutional grounds. We are trying to work within the traditional understanding of our country that marriage and family law is drawn on a state-by-state basis, and we should ask the states to do this under their own laws.

One day this will become a federal issue. One day a married couple will run into DOMA, the federal law that says your marriages will not be recognized. One day someone may have to file a tax return and not know what to say, and will have no choice but to go to federal court, but we counsel patience.

I think sometimes when people come into this issue for the first time, they get a fearfulness about “you are trying to do so much so fast. Can’t you see that there is all this backlash, stop, stop.” And really we have been at this a long time, a long time. We have been patient.

Evan personally has been at this more than a decade. There were cases 20, 30 years ago. We have only filed at Lambda Legal two affirmative marriage cases. Listening to people you would think we were suing in every court in the country.

We have been patient, and we continue to be patient and we continue to be strategic and to focus on public education. We continue to weigh the dangers that are out there, but we have to continue to move forward; and I can’t emphasize this enough and I will repeat Evan’s three things there at the end. We need to secure those marriage licenses in Massachusetts. Why? Because we need more married people walking around among us, not so much among the gay community, although that is important, but among our friends. We need our friends to wake up and realize what is going on out there.

We need to repel the attacks in Congress and every state in the country. If it hasn’t happened yet, it will be happening soon.

It’s important that we are heard and that it becomes if not a majority, at least the sense that there is nothing to be gained politically by going down this road.

We do need to enlist the divergent and compelling voices to tell these stories to broaden the message, to broaden the messengers to show that like minded reasonable people who vote in addition to us support this.

I was really pleased to see in the wake of Goodridge just an upsurge in the number of op-eds, the number of letters to the editor from people who really should have been attuned to this maybe for a long time, but obviously were coming to a new deeper understanding of what is going on, and people are saying, “What is the big deal?” Give equality.

So many straight people are coming forward to say, “We don’t need to defend my marriage by denying yours. There is nothing to defend. We will be fine.”

Lambda Legal and Freedom to Marry can’t go it alone. First we ask you to support our organizations, but mostly we ask you to go out there and do that work, the one-on-one work of coming out at a new level about your relationship and about your support for marriage equality.

I think we are ready for questions and answers.


MR. WILSON: Thanks, Pat.
I think it’s a testament to Lambda’s work, the State of New Jersey where they have been very active for a number of years on the local level where the town halls, schools have all been part of an education movement, I think the latest opinion polls are 59 of people consistently polled are in favor of equal marriage rights throughout the State of New Jersey.

MS. LOGUE: It is similar in polls in Massachusetts.

MR. WOLFSON: And in Massachusetts, and you see also in the National polls that the number of people who tend to either oppose it are people who believe in marriage per se or religious institution or it comes from the church and not from the State much more heavily oppose the idea and people who are either older or have not had any personal exposure when the polls go further and ask the people whether they know anybody who has been situated.

I think the last New York Times poll had the last question was know homosexual, as in k-n-o-w and I think only 47 percent owned up to it, but it does play a role.

I think it is education, and I think, as Pat says, its vocabulary.

It is a question people don’t know how to talk about these things, and part of it is because the word marriage is something that people just — we all I think intuitively have an image of what it is, part of that socialization and certainly a lot of it has to do with American culture and pop culture.

I would like now to turn it over to questions, and please feel free to ask a question.

If you would stand, sure. Go ahead just so everybody can hear and identify yourself for the record.

MR. CASTILLO: The first part is a statement. The second part is a question. My name is Robert Castillo. I am a member of the City’s Advisory Council on Lesbian Gay Bisexual and Transgendered issues. This past Wednesday the Council passed a resolution condemning both the federal marriage amendment and the proposed State constitution in the amendments.

The second thing we actually did was to approve the letter to President Bush concerning the State of the Union address about the mention of the marriage amendment as well as abstinence only program and how they impact GLBT’s who can’t wait, because there is no marriage for you.

My question is considering the existence of DOMA, will that be used if Massachusetts does grant marriage license, will that be used to hamper your decision or will that then be used to go ahead and challenge DOMA?

MR. WOLFSON: The question is about the federal anti-marriage law passed in 1996, the so-called “Defense of Marriage Act” or DOMA. Just to take a moment to remind people of what that law is, its most important element was to say that from now on for the first time in American history, the federal government will not follow the State’s lead with regard to family relations and particularly marriage, but instead we will now have in the United States a caste system of marriage.

Under so-called DOMA, we have first-class marriages for people whose marriages the federal government likes, and those people get all of the protections, benefits and responsibilities under federal law in all circumstances. As Pat mentioned, there are well over 1,049 — the federal General Accounting Office actually stopped counting at 1,049 — because there are too many ways in which marriage connects to the federal law.

For people whose marriages the federal government doesn’t like, for the first time in American history, we now have second-class marriages; and those marriages, though lawful, will get none of the protections, benefits and responsibilities under federal law and no matter what the circumstances, no matter where, no matter what is at stake.

The only people who qualify for the category of second-class marriage are gay couples, the people in America who unlike prisoners can’t get married. So that is what the federal anti-marriage law does. What it did not do is say that states may not end this discrimination.

What it did also was say that if a state does legally marry people, other states may choose to disrespect or not honor that lawful marriage. So, this federal discriminatory piece of legislation is purporting to change normal rules under which our country operates whereby states honor the lawful marriages, the lawful unions, the laws and decisions and the judgments of other states, part of our national unity.

The federal anti-marriage law of DOMA has not been challenged because you can’t go into court and say that my marriage is being discriminated against until you have one; and since up until recently, same sex couples were not able to legally marry anywhere in the world. Only in 2000 did the first country, the Netherlands, end marriage discrimination followed by a second country in Europe, Belgium. Others are on the way, and now Canada.

Now, in Massachusetts the prospect of same-sex couples getting legally married is on the horizon as if we do our work of defending that civil rights triumph.

Some people immediately go to where the questioner went, and ask will there be challenges to the federal anti-marriage law, this discriminatory radical piece of legislation, once people are allowed to marry? I think in the course of time there almost certainly will be challenges to that law.

But I want to point out that people should not immediately rush to that point, because our country actually has a much longer history of figuring out how to address these kinds of questions, and that is the law of marriage and the law of how to treat marriages that has been developed between the states.

For more than 200 years of American history the states have worked out among themselves how they are going to honor other state’s marriages, and in virtually every case, over 200 plus years — when I was at Lambda, my colleagues and I read all of those cases — in virtually every case, no matter what the state said it was going to do, no matter how much it was discriminating itself in marriage, when faced with a married couple, a real-life family, in a real-life circumstance, in virtually every instance, the state chose for its own policy reasons to honor the marriage, because there are better policy arguments for honoring and respecting families than there are for disrespecting and destabilizing a marriage. The states made those decisions without a federal constitutional standard, without federal constitutional intervention, without many federal court cases at all, though there are a handful in American history.

So once marriage discrimination ends in some state, other states’ businesses, people will now be looking not at a hypothetical, but a reality, a real family in a real situation; and the general practice, the general principle, the general standard of law not via the Constitution but in law itself will be in favor in general of honoring the marriages.

At the same time we know that some states, some businesses and for a time, as I said earlier, the federal government will discriminate against those marriages. There will be a patchwork in which there will be court cases, legislative discussions, and growing public awareness that the Federal government is beating up on a legally married couple, and that is the discussion we look forward to having, not only in court but in the public arena of the years to come.

MR. WILSON: Next question.

AN UNIDENTIFIED AUDIENCE MEMBER: Usually when I see this argument, it is about equal protection under the law and privacy and freedoms. I rarely hear it argued against because really when it comes down to it, it’s an establishment of a national religion and unconstitutional on that basis because you are being denied civil benefits under the government because you are ineligible for some religious ceremony in most religions, and it just seems like we can’t adopt children because we are sinners kind of in the federal government’s eyes. Is that something that people have looked at or is that really not good arguments against it?

MS. LOGUE: Well, first of all, it is safe to say we have looked at everything.


MS. LOGUE: It certainly has religious elements, but it’s not really for the most part focusing on these issues.

We are not challenging the right of religions to marry people, and there is no requirement for civil marriage in this country that a religion approve it.

We are challenging the access to civil marriage in our country, and certainly marriage is an important dimension in the lives of many religions and to some extent marriage inequality reflects the traditions of many religions, but I don’t think it’s correct or helpful as a First Amendment issue to equate civil with religious marriage. There are many religions who marry us.

There are many religions who are embracing and affirming our relationships, and I just think it’s a mistake to think of it in terms of religion on one side and gay people on the other.

AN UNIDENTIFIED AUDIENCE MEMBER: To clarify, the government is going to enforce our religious ideal of saying that marriage is a man and a woman, because really that is the only argument that there is that it must be a man and a woman is religious ones; and the federal government is going to enforce a religious ideal.

MR. WOLFSON: You are right, that a lot of the opponents of equality and the opponents of ending discrimination in marriage will refer to religion or their particular religions’ views, and they talk about a quote/unquote “sanctity” of marriage or the sacrament of marriage, which some religions believe very deeply and others do not.

And then they muddle that into a discussion about what the government should be doing with regard to legal or civil marriage licenses. In reality, we are talking here about legal civil marriage licenses and the proper argument to defend what the government does has to be made on a secular basis. The fact of the matter is that a lot of the language of our opponents tries to blur that line.

So you are correct in pointing out the need to be clear about the difference. You are also correct in highlighting the fact that there are many religious leaders, many faiths, many congregations that do indeed perform religious marriages of same sex unions, although the law treats those religiously married equals as nothing more than legal strangers; but at the end of the day as a legal matter in terms of constitutional and legal argument, this is not about religious marriage.

It is about legal marriage, and the courts would not say that just because the government is restricting marriage that way that necessarily is a religious imposition. Because they would analyze in secular terms so must we engage in secular terms.

AN UNIDENTIFIED AUDIENCE MEMBER: Hi. My question to you, Pat, is does Lambda have any preference if we were to get married as to how we fill out forms, in other words, if we flew to Massachusetts in June and got married, would Lambda have any preference as to whether we should file as a married couple tax forms and those types of things, or is that just irrelevant at this point?

MS. LOGUE: Well, the question was whether Lambda has a preference if people represent themselves as married, once married in Massachusetts or Canada or wherever on things like tax forms.

Preferences notwithstanding, it’s really a legal question.

On the one hand, I would think the most important thing is that in life and in social interactions you need to not shy away from identifying yourself as married, even though I couldn’t sit here as a lawyer knowing some of these anti-marriage laws out there and safely say to you, always do it this way and there will never be any repercussion.

You have to account for the fact that some people do not view your marriage as valid, but there are ways you can consistently represent yourself as married. I can’t take into account here the specifics of what any one person should do in any one state on a particular legal issue.

I am not going to get into it for obvious reasons, but it’s a little bit of a problem because you are married once you get married; but if Illinois doesn’t consider you married, there is a lot of extra effort that goes in socially and legally to preserving your integrity.

MR. WILSON: So that everybody understands, Illinois amended its marriage laws in ‘96 when the Federal government passed DOMA to specifically define marriage as a union between a man and a woman. It was one of like 30-some states that had no distinction in the law that it never qualified. It also passed a reciprocal law that said it’s the public policy of the state that marriages between persons of the same sex violates state public policy, and it went one step further and said that persons who obtain such marriages in other jurisdictions are classified among so-called prohibited marriages under the divorce act, which specifies what marriages are acceptable.

So it said citizens of this state who go elsewhere and obtain a marriage which would not be allowed here, that is another class of marriage. Those are the hurdles in Illinois, and now two representatives 10 days ago introduced an amendment to the State constitution to specifically provide that under the constitution of Illinois it’s illegal as well.

MR. WOLFSON: Let me just add, Richard is correct in everything he is saying, as is Pat; and I will add the fact that there was a period of time, a very long period of time in our country’s history, where there were many states that refused to allow people who were in interracial couples to marry; and some of them went so far — further than even Illinois has done in Richard’s explanation — making it a crime to marry someone of quote/unquote the “wrong” race; and nevertheless in most of the cases in which those states were confronted with an actual married couple who had gotten legally married in other states and who were an interracial couple, they would still honor that marriage, even though in their own state to marry someone of quote/unquote the “wrong” race was a crime.

So the real answer here and no matter how many versions of the question Pat or Richard or any other lawyers get asked, the real answer is that for a period of time there will be a patchwork of discrimination on the one hand and respect on the other with a lot of uncertainty.

That is just how it is going to play out — just as it did under interracial marriage, just as it did with divorce, just as it has in other episodes in American constitutional life. And so if you are not the kind of couple that can deal with uncertainty, then you have to think seriously about whether you are ready to enter into marriage at this time given the house divided that our opponents have made America.

But, on the other hand, if you are the kind of couple that can deal with that mix of respect, discrimination, and uncertainty, and want to have the opportunity to make your statement because you love each other and you want the world to know and you can deal with that uncertainty, then you have a contribution to make, not necessarily by litigating, not necessarily by fighting every act of discrimination, but by telling the story and showing the face and allowing fair-minded people to think anew.


MR. WALTERS: I am kind of thinking in a way the kind of context for test and error.

I think if we are able to get civil unions, where I am able to see my partner in the hospital, we are able to make decisions, we are able to adopt children.

In other words, you brought up earlier the religious issue for a lot of people. Marriage is considered religious things. If we get a civil union that is outside of that, it is very much the same as it would be if you went and got a judge; and we have a very hot election coming up.

We have an issue there that is going to fire up a lot, and the Supreme Court has several members that very well could resign in the next term and very well even reverse that decision. It is not all that etched in stone.

What I am wondering is: Isn’t it better to in some ways tone down the rhetoric that go for more practical civil unions and things and see that they can actually raise ch

Annual Commencement Dinner Address

Harvard Gay & Lesbian Caucus

Five months before November’s historic marriage ruling in Massachusetts, Evan Wolfson predicted that gay people are “within reach of winning the freedom to marry.”