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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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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?"

(Laughter.)

MS. LOGUE: And "I am a registered partner."

(Laughter.)

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.

(Applause.)

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