For Marriage Equality, the Work’s Not Just in Court

Author: Evan Wolfson
Publication: New York Times
Publication Date: December 11th, 2012

Click to read the op-ed at The New York Times.

Proponents of same-sex marriage had good reason to celebrate last week; the Supreme Court announced that it could restore the freedom to marry in California and end federal discrimination against the marriages celebrated by same-sex couples in the nine states (along with the District of Columbia) that have the freedom to marry.

For those who believe, as the Rev. Dr. Martin Luther King Jr. did, that the arc of history is long, but bends toward justice, the prospect of a landmark ruling that would add the United States to the growing list of nations that grant gay people the freedom to marry — including Argentina, Canada, the Netherlands and South Africa — is a cause for much hope. But even though American public opinion on the matter has shifted more rapidly than almost anyone could have predicted as recently as a decade ago, supporters of marriage equality can’t just sit and wait for change.

On the merits, the Supreme Court’s task should be easy. More than 200 years of federal jurisprudence shows that the government has nearly always automatically honored the marriages of couples legally married in states or even other countries. By constitutional standards and tradition, same-sex couples married in New York should receive the same 1,138 (or so) federal protections and responsibilities provided opposite-sex couples who marry here. These rights — and not just rights, but also obligations — include Social Security, family leave, health coverage, immigration policy and tax payment.

The so-called Defense of Marriage Act, signed by President Bill Clinton in 1996, effectively created a “gay exception” to this centuries-old approach. In 10 recent rulings, a succession of federal trial and appellate judges has deemed this exception unconstitutional. These judges — including jurists appointed by the Republican presidents Richard M. Nixon, Ronald Reagan and both George Bushes — agree that in America, we don’t have second-class citizens, and we shouldn’t have second-class marriages, either.

The Proposition 8 case challenges California’s stripping away the freedom to marry from one group of couples — those of the same sex — and asks whether it is acceptable for a majority to vote away freedoms (like the freedom to marry) from a minority. Both a federal district court and the United States Court of Appeals for the Ninth Circuit have rightly said no. The Supreme Court itself has affirmed the right to marry as a fundamental constitutional freedom 14 times — in cases involving, for example, restrictions on interracial couples and the right of prisoners to marry. The Prop 8 case offers the prospect of final vindication of that underlying freedom to marry. If being right on the law and having good lawyers were enough, we would have won the freedom to marry years ago. But history tells us that a key to prevailing before the justices is to make the same strong case in the court of public opinion as we make in the courts of law. Yes, there are only a precious six months before the court hands down its biggest decisions next June. It is in that narrow window of opportunity that proponents of same-sex marriage, who have already worked so hard and made such progress in altering public opinion and securing marriage rights in many states and countries, must redouble their efforts.

We’ve seen from other social justice movements that national resolution on historically contentious civil rights questions typically comes after a long period of work, during which advocates build a critical mass of states that end discrimination and a critical mass of public support, which empowers the Supreme Court or Congress to then establish fundamental rights throughout the nation. This is a pattern that abolitionists, supporters of women’s enfranchisement, the modern African-American freedom movement and advocates for people with disabilities — among many others — have followed.

So what can be done in the next six months?

First, rack up more state-level victories. By 1967, when the Supreme Court struck down restrictions on interracial marriage in the appropriately named case Loving v. Virginia, two-thirds of the states had already ended interracial marriage bans. By that measure — and it’s a measure, not a rule or a formula — supporters of same-sex marriage still have a ways to go. But our four-for-four victories at the ballot box last month increased by half — in one night — the number of United States jurisdictions where gay couples can marry: adding Maine, Maryland and Washington to New York and five other states plus the District of Columbia. (In Minnesota, same-sex couples are still denied marriage licenses, but voters rebuffed a proposed amendment that would have added the ban to the state constitution.)

Along with local families and advocates, Freedom to Marry is already looking to 2013 legislative victories within reach in states like Delaware, Hawaii, Illinois, Minnesota, New Jersey and Rhode Island.

Second, we need to continue the momentum in public opinion.  At the time of the Loving ruling, 70 percent of Americans opposed interracial marriage. By contrast, support for same-sex couples’ freedom to marry has literally doubled from 27 percent in 1996 — the year a Hawaii state judge ruled that same-sex couples had a right to marry, a ruling later pre-empted by a state constitutional amendment — to 54 percent today. This growing majority includes, remarkably, a supermajority of younger Americans, nearly two-thirds of Catholics, a majority of Latinos and pluralities of African-Americans and Asian-Americans. The freedom to marry is one of the few questions on which Dick Cheney and Barack Obama agree, and it’s of more than symbolic importance that two titans of the Supreme Court bar, the conservative lawyer Theodore B. Olson and the liberal litigator David Boies, have joined forces on the case challenging Prop 8.

Public opinion doesn’t shift on its own; hearts are opening and minds are changing because of persuasion and discussion, evidence and experience. With increased urgency, it’s our job to grow, diversify and mobilize that majority, conversation by conversation. Through campaigns like Young Conservatives for the Freedom to Marry and Mayors for the Freedom to Marry; public statements by business leaders like Jeff Bezos of Amazon and labor leaders like Richard Trumka of the A.F.L.-C.I.O.; the support of the N.A.A.C.P. and a growing number of organizations representing Latinos, the largest ethnic minority group; and above all, personal conversations between family members and neighbors, we are continuing to persuade Americans that it’s time to do right by all families and get on the right side of history. For that matter, the United States needs to catch up with its neighbors; Canada ended marriage discrimination years ago, and last week, the Mexican Supreme Court unanimously ruled in favor of the freedom to marry.

I am the kind of gay guy far more likely to quote Broadway lyrics than use sports metaphors, but let me give it a shot: Our opponents have spent the last 15 years continually moving the goal posts. They claimed we could never get Americans to put “gay” and “marriage” in the same sentence; we’ve grown a national majority for marriage. They claimed only the coasts would support the freedom to marry; we’ve won in Iowa and Minnesota.

They claimed courts would never uphold the freedom to marry; that a sitting president would never run on (rather than away from) support for the freedom to marry; that Republicans would never join Democrats in voting for freedom-to-marry bills. Wrong, wrong, wrong. (In New York, Republican state senators provided the margin of victory for the legalization of same-sex marriage last year.)

Now here we are, with the Supreme Court heading toward decisions on both the state and federal marriage discrimination that same-sex couples endure. And if we do our part over the next months, building on the irrefutable momentum of 2011 and 2012, we can give the justices confidence that when they stand on the right side of history, their rulings will not only stand the test of time, but be true to where the American people already are.