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Evan Wolfson: TRANSCRIPT: Chicago discussion on marriage equality

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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.

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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.

(Applause.)

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