Evan Wolfson discusses same-sex marriage’s long road to the high court

Author: Marcia Coyle
Publication: National Law Journal
Publication Date: December 19th, 2012

Click to read the story at National Law Journal.
 
Next year, when the U.S. Supreme Court hears arguments on two same-sex marriage cases, 30 years will have passed since a young Harvard Law student, at the forefront of that civil rights movement today, wrote a thesis arguing the constitutional, legal and social reasons for recognizing gay marriages. 

Thirty years seems a very long time, particularly if you are just 26. Although he is still impatient for change, Evan Wolfson, founder and president of Freedom to Marry, knows what history teaches. 

"For years I've been preaching that change like this doesn't happen over night," he said. "Historically, we know change like this takes decades. That said, I believe it is time. I look forward to bringing it home as soon as possible." 

Wolfson has been in this battle in the states, the Congress and the courts for a long time. From 1989 to 2011, he worked at Lambda Legal, the nation's oldest and largest gay rights legal organization. While there, he directed the nonprofit's Marriage Project and coordinated the National Freedom to Marry Coalition. 

Wolfson has participated as counsel in numerous gay rights and HIV/AIDS cases. In 2000, he represented James Dale in the U.S. Supreme Court in Boy Scouts of America v. Dale in which a 5-4 majority, led by Chief Justice William Rehnquist, held that the Boy Scouts of America had a constitutional right—First Amendment right of freedom of association—to prohibit homosexuals from serving as troop leaders. 

Even earlier, he also, ironically, was involved in the Hawaii Supreme Court case that triggered the enactment of the federal Defense of Marriage Act of 1996 (DOMA). The constitutionality of Section 3 of that law, which defines marriage as between a man and a woman for all federal purposes, is at the heart of one of the two cases accepted for review by the Supreme Court (U.S. v. Windsor). The second case, Hollingsworth v. Perry, involves California's Proposition 8, a constitutional amendment barring same sex marriages. 

Wolfson, who launched his organization, Freedom to Marry, in 2001, recently shared some his thoughts about the cases with The National Law Journal. 

Supreme Court Insider: Thirty years later, do you remember what you said in your Harvard Law thesis? 

Wolfson: Thirty years ago I said marriage is the central social and legal institution of this and virtually every other society, and to be shut out of it is to be denied something extremely important in tangible and intangible ways. Central to its importance is the vocabulary of love, family, commitment and connectedness, and gay people need to claim that vocabulary, in part, to be participants in society generally and, in part, to help people understand what the Vermont Supreme Court, when it upheld civil unions, said is "our common humanity." 

I talked not just about the constitutional and legal arguments but the social importance of having freedom to marry. I then enlisted my sister and friends to help me type the 130 pages, which I had handwritten on a legal pad. 

In some respects, we've made progress at lightning speed, yet every day couples are denied something really important and for no good reason. 

SCI: Many court watchers expected the justices to take one of the DOMA cases because that law's Section 3 had been struck down by two federal appellate courts. Were you surprised that the Court took both the DOMA and Prop. 8 challenges? 

Wolfson: I actually was the rare grumpy one who didn't get involved in that speculation. I constantly had been urging people, telling them, "Our advocates are going to do a really great job in the court of law. We need to make the same strong case in the court of public opinion." We should focus on things we can do to help create a climate that will help the Supreme Court do the right thing. How do we win more states and how do we win more hearts and minds? 

SCI: In U.S. v. Windsor, the DOMA case that the justices have agreed to review, the U.S. Court of Appeals for the Second Circuit applied heightened scrutiny to determine Section 3's constitutionality. If the justices adopt that standard of review and Section 3 fails the test, what impact, beyond DOMA and states that have legalized same-sex marriages, would the use of heightened scrutiny have on those states with laws prohibiting same sex marriage? 

Wolfson: Discrimination based on sexual orientation, especially when, worst of all, it's practiced by the government, should be presumed unconstitutional. That's what heightened scrutiny is—it's presuming the discrimination is unconstitutional and the government better have a really good reason. Clearly that kind of scrutiny and skepticism are warranted here. 

There've been at least 10 federal rulings saying DOMA's gay exception to marriage is unconstitutional, and those judges, appointed by a mix of presidents, Republican and Democrat, have come at that decision from a whole variety of legal angles, some applying heightened scrutiny and some not. In my view, DOMA's unconstitutionality is clear no matter what standard applies. 

Were the Supreme Court to apply heightened scrutiny, the consequence would be [that] most, if not all laws discriminating against gays would fall, just as those against women and religious minorities did. If the government is truly required to show a good reason, it turns out they don't have one. 

SCI: Some proponents of same-sex marriage have suggested that the First Circuit's "closer than usual" review standard, which also led to the invalidation of Section 3, would be a wiser, though narrower, step for the justices to take. Would it be? 

Wolfson: I do believe sexual orientation discrimination is wrong and ought to be presumed unconstitutional. Even under less explicit standards, as long as there's a real examination of the government's reason, it turns out there is no good reason. 

SCI: Putting aside for the moment, your advocacy on behalf of same sex marriage, as someone who has litigated in the federal courts, how serious do you think the standing and jurisdiction issues raised by the court in its grants of review are? 

Wolfson: I do think there are serious standing questions in the Prop. 8 case. I don't believe the Supreme Court can or should avoid ruling on the DOMA. In DOMA, there is truly a true case and controversy and a need for national resolution. 

SCI: In the Prop. 8 case, the federal appellate court held that the Prop. 8 proponents had standing after asking the California Supreme Court whether the amendment's supporters could replace the state as its defenders. If there is no standing and the court dismisses the Prop. 8 case, what would be the practical ramifications of that dismissal? 

Wolfson: I think it would conceivably leave the trial court ruling intact and that would apply to the state whose chief officers and legislature all agree with the trial court's determination. It would restore freedom to marry in California. I don't think it would be the right result narrowing it to the two counties where clerks denied licenses—not the right result for the state, let alone the families. 

SCI: Some have warned that if the Supreme Court takes the step of including same-sex couples in the fundamental right to marry, that there would be a backlash similar to when it struck down the death penalty or found that women have a right to choose abortion in Roe v. Wade. Given that the majority of states today do not permit same-sex marriages, is this the right time for this Supreme Court to decide the cases that it has taken? 

Wolfson: In my book, Why Marriage Matters, I quote Martin Luther King where he said, "I hate the word backlash." He said that's not what's happening. What's happening is that some of us have pressed for equality and inclusion. It's about a collision of what we think America and its promises of liberty and justice are all about. I say their backlash began before we lashed. Gay people have been denied the freedom to marry. We're saying in the courtroom: What reason does the government have for the denial? 

The U.S. Supreme Court has said 14 times that freedom to marry is a fundamental right, a vital personal right. It turns out there is no good reason to deny that right to loving and committed couples who happen to be gay. That is the constitutional command and that is the right answer. 

It's also true the court need not reach that question in order to uphold the appellate ruling that California had no good reason to strip away the right to marry in Prop. 8. 

I look at it as the courts did the right thing in affirming fundamental freedoms in cases like Roe v Wade. The failure came when we didn't continue to fight and defend that liberty and, in the case of Roe, the freedom of choice and access. Battles don't end when the court rules. We absolutely understand that. In state after state where we have won freedom to marry, support has grown. Once it's no longer a hypothetical, most people remember it's either a good thing or it doesn't affect them. We will not see the kind of turmoil after the ruling. The majority of Americans support the freedom to marry and after that ruling, they will see it doesn't take away anything. 

Finally, this is ultimately about real people. Every day that people are denied freedom to marry, it means some families are denied an important safety net, or to be with their loved one in a hospital and other things. They don't see in the law the commitment they made in life, and that's unfair. 

SCI: How do you feel about these cases coming before the Roberts Court? 

Wolfson: This is the court we're in front of. I really do believe the justices can do the right thing and know that not only will history vindicate it but it's where the American people already are. There's tremendous momentum in the right direction, and the court should want to be on the right side of history and the justices should want to be remembered more like those who decided Brown [v. Board of Education] than those who decided Plessy [v. Ferguson]. 

SCI: What do you think the reaction within the gay rights movement would be if the Supreme Court were to uphold DOMA and Prop. 8? 

Wolfson: Then I am confident that will animate even more people to work hard to get the country where it needs to be. But it will add to the time it takes to end this injustice and add to the battles that the court could actually spare the country. Freedom to Marry—my organization—will have to continue instead of close up shop, which is my real goal.