August 15, 2005
Evan Wolfson Brings a Lawyer's Clarity to the Discussion of Same-Sex Marriage "Rights" and "Rites"
A BUZZFLASH INTERVIEW
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It's 2005, and yet we're still talking about same-sex marriage? Yes, evolution is indeed slow. BuzzFlash believes Americans are ready to get past demonizing and discriminating against our fellow Americans who happen to be gay or lesbian, but it's difficult when you have someone like George W. Bush and the right wing putting the emergency brake on social progress. Our fundamental rights are guaranteed to ALL Americans – not some, not most. The Constitution doesn't give George W. Bush and the Republican Party the power to pick and choose who gets their rights to life, liberty and the pursuit of happiness – we're all entitled to those rights.
So BuzzFlash decided to talk to Evan Wolfson, the author of an incredibly thorough and accessible new book, Why Marriage Matters: America, Equality, and Gay People's Right to Marry (a BuzzFlash premium). A review in The Oregonian said it best: "Armed with Wolfson's arguments, you could sell anyone with an IQ over room temperature on the wisdom and humanity of marriage equality."
Evan Wolfson is the Executive Director of Freedom to Marry, the gay and non-gay partnership working to end marriage discrimination nationwide. Citing his national leadership on marriage equality and his appearance before the U.S. Supreme Court in Boy Scouts of America v. James Dale, the National Law Journal in 2000 named Wolfson one of "the 100 most influential lawyers in America." In 2004, he was named one of Time Magazine's "100 most powerful and influential people in the world."
BuzzFlash spoke with Evan Wolfson about "framing" the same-sex marriage debate, the hypocrisy of some African-American ministers on discriminating against gay people, and whether winning civil rights for all gay Americans is inevitable.
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BuzzFlash: Marriage is understood by many Americans as a religious act, and for many people their marriage ceremony reflects their spiritual beliefs. But as you point out in your book, Why Marriage Matters, in reality, all marriages are civil unions, meaning that marriages are social contracts recognized by the state. It doesn't matter whether you get married in a church or city hall, whether you walk down the aisle or not, or whether a judge or rabbi or priest conducts the ceremony. What matters is that the state recognizes the benefits to society of having two individuals committing their lives to each other, and rewards that social contract with certain benefits and legal protections. Why do you think Americans are "married" to such a narrow definition that marriage is inherently a religious rite, when it’s just not the case?
Evan Wolfson: I don’t think Americans are so wed to a narrow idea of marriage. In fact, I think public opinion continues to shift in support of ending this exclusion from marriage and recognizing that same-sex couples who’ve made the commitment in life deserve an equal legal commitment to match, and that commitment is called marriage.
If you look at the Pew Research Center's recent poll, it showed that public support for the freedom to marry has now returned to where it was in roughly July of 2003, before this huge barrage of right-wing attacks attempting to demonize gay people and scare people about marriage equality began. Despite the fact that it will not happen overnight, and that it will occur in a patchwork of advances – just as every other civil rights struggle – we are seeing people move toward fairness on this question.
But you’re absolutely right about the distinction between civil and religious marriage. As I argue in the book, there’s a big difference between the religious rites -- R-I-T-E-S –- of marriage, which are up to every faith tradition to decide for themselves without government interference, and the legal right -– R-I-G-H-T –- to marry, which is regulated by the government. This involves getting a marriage license from the government, and people can exercise this "right" without ever setting foot in a house of worship. About 40% of all marriages in America take place in front of a judge or a clerk or a captain at sea, and do not involve any kind of religious ceremony.
There’s a great deal of effort to blur the line and confuse people, from the President right on down. But when you have a conversation with people and remind them of what they know in their heart – that there is a difference here between a civil and religious marriage – people can understand that. And what we have to do is just have more of that conversation.
BuzzFlash: The influential linguist and framing expert from Berkeley, George Lakoff, says that if you poll Americans and ask if marriage should be defined and limited to the union of one man and one woman – a significant number of Americans would say they would support that policy. But, as Lakoff argues, if you change the question and ask Americans “Should the government be sticking its nose in our private lives and say who we can and cannot marry?” the numbers reverse and Americans overwhelmingly support same-sex marriage. Is this simply an issue of framing and perception?
Evan Wolfson: Well, George Lakoff’s concept of framing is more than just word choice. What he means by framing is to be very clear about the values and real vision of what you stand for, and make an honest case for it with the right language, with persistence, and even the right messengers and repeated messages over time. In that sense, it is very important that we frame this discussion – in an authentic way – that this is about the values of love and commitment, and fairness and freedom. These are American values. It violates those values for the government to discriminate against committed couples who seek to marry.
BuzzFlash: BuzzFlash believes that the issue of same-sex marriage is really a civil rights issue, but the strategy has been difficult to take root. The Republican Party has used same-sex marriage as a wedge issue to make inroads into what are generally considered liberal political bases, such as African Americans and Latino communities who have fought for their own civil rights.
For example, in Chicago, some African-American ministers who fought discrimination in the past prohibiting interracial marriage, now believe we should deny same-sex couples the right to marry. I would personally call it hypocrisy. But the underlying assumption from their point of view, I think, is that you can’t choose or pick your race, but you can choose whether or not you’re gay. And this misguided assumption seems to fuel so many of the reasons for denying gay and lesbian Americans their civil rights.
Evan Wolfson: I think it’s a very good question. It's so important, that I discuss it at length in the second-longest chapter in the book where I ask the question: Is marriage equality a question of civil rights? I discuss it from a variety of cuts and perspectives.
There are two basic models for civil rights protection in American law. One is – we can call it the race paradigm – this idea that people should not be discriminated against, should not be punished, for a characteristic of theirs that is not "in their control." And that, of course, is a very important principle of fairness.
But there’s actually an even older civil rights paradigm, an older civil rights model in American law, and that is religion. And here is something that people can choose, something people can change. And yet we also believe that it is wrong to discriminate against people on the basis of that important choice.
In other words, as Americans, we recognize that there are some choices that are very important for people to make, and that part of freedom is allowing those choices – the pursuit of happiness, people’s exercise of their own judgment and shaping their own lives. So whether or not sexual orientation is a choice, it is not a fit basis for discrimination.
Having said that, the experience of most people, gay and non-gay, is that their sexual orientation is not something they chose. It is something that comes from within them. What they can choose is how they live their lives. Do they live their lives building committed relationships with others, and caring for the people around them? I think that the value of the freedom to marry is that it respects people’s human aspiration to build bonds and to shape lives with another person. And that bond, that commitment, ought to be respected by the government without discrimination.
BuzzFlash: Give us some specific examples how denying same-sex marriages also denies Americans their civil rights, due process, and equal protection. In other words, besides the ritual and recognition in and of itself, what legal protections are denied?
Evan Wolfson: Getting married brings you an entire network of protections and responsibilities, both tangible and intangible, that affect you and your loved ones in every area of life, literally from birth to death, with taxes in between.
The tangible protections include such important matters as access to health protections, health coverage, the ability to make medical decisions in the event of an accident or illness, immigration rights, and access to the Social Security benefits so that your partner can be covered should you die first. Parenting rights and responsibilities that bind a child to his or her parents, and allow both parents to care for their children together. The ability to pool their resources – the family’s resources – together without incurring adverse tax treatment. The list literally goes on and on and on.
The intangible protections and responsibilities that come with marriage are also very important -- the clarity, the security, and the respect the family has. Marriage is a statement about who you are in relationship to the primary person you’re building a life with – a statement so important that most people wear its symbol on their hand. When you say “I’m married,” doors open for you. People know who you are. If, God forbid, you’re rushing into a hospital, you don’t have to fumble for fifteen documents or hire a lawyer. You say “that’s my husband,” “that’s my wife,” and you’re empowered to make decisions.
That kind of clarity, that kind of security, that kind of intangible respect and dignity, on top of the safety net of legal and economic consequences, is absolutely crucial to people, particularly in times of emergency, but also in the day-to-day ordinary ups and downs of life. And for gay people to be shut out of that whole intangible and tangible dignity and clarity and security that come with marriage is simply wrong.
BuzzFlash: By denying couples the right to marry, we have trapped a significant number of Americans in a Catch 22. We’ve denied them the basic human right and dignity to choose a life partner, thereby reinforcing some of the worst stereotypes and prejudices of gay Americans -- that they’re promiscuous, they’re deviant, they’re sick. It seems that one of the ways gay Americans could demonstrate and prove (not that they should have to) their love and life-long commitment, is to get married, which they are legally denied from doing. Do you believe this is an example where the law impacts our collective psychology and our perception?
Evan Wolfson: Absolutely. The law, as it stands today in most states, is reinforcing prejudices and stereotypes, and dividing people rather than uniting them. It’s harming families rather than helping them. It’s preventing gay people from participating equally in society, and then they get stereotyped and blamed that prejudices are reinforced because of that exclusion from the opportunity to participate.
BuzzFlash: Would you give us a brief history of the legal struggle of gay and lesbian Americans to obtain their civil rights? The history is largely unknown.
Evan Wolfson: As I discuss in the second chapter of the book, gay people have been challenging our exclusion from marriage since the dawn of the modern gay civil rights movement. Most people think of that movement as beginning in 1969 with Stonewall.
[BuzzFlash Note: On June 27th, 1969, the same day of Judy Garland's funeral, police raided a Greenwich Village gay bar called Stonewall. A struggle broke out between the patrons, resisting unlawful arrest, and the police. The ensuing media spectacle helped launch what is considered the birth of the civil rights movement for gay and lesbian Americans.]
Within just two years after Stonewall, there were at least three major cases making their way up through the court system in different states, brought by couples who were seeking marriage licenses and who had been denied these licenses.
The struggle to end marriage discrimination, however, really hit its stride with the Hawaii case, which began in the early nineties. I was co-counsel on that case, along with a non-gay man, Dan Foley. We represented three couples who were challenging the denial of marriage licenses. What was historic about that case was the Hawaii Supreme Court, in 1993, ruled that unless the government can show a good reason for denying these couples the freedom to marry, it had to stop discriminating. It was the first time that a court had refused to simply rubber stamp the exclusion, and instead turned to the government and said, “What’s your reason?” The Hawaii Supreme Court sent the case back down to the lower court in order to give the government a chance to show a reason.
Then in 1996, we held the fullest trial that’s ever been held on this question at which the government had the chance to call any witness, hire any expert, write any brief, submit any argument it could come up with, to justify the discrimination. In December of 1996, Judge Kevin Chang in Hawaii ruled that the government had failed to show a sufficient reason for excluding these couples from marriage, and ordered that they be allowed to marry. The state appealed that question to the Hawaii Supreme Court.
In the meantime, right-wing forces around the country poured millions of dollars into Hawaii in a campaign to amend the Constitution to literally prevent the courts from doing their job – to shut down this review of the discriminatory exclusion from marriage. At the end of the day the Hawaii case did not result in gay couples being able to marry, but it did launch this ongoing national discussion, asking the question: what is the reason for excluding these couples from marriage?
Other cases went forward in Vermont and in Massachusetts. The Vermont court found there was no good reason to deny these couples – in the court’s words – "common humanity," and ruled that they must be provided the protections and responsibilities that come with marriage, although the court stopped short of ruling whether the denial of marriage itself was Constitutional. Ultimately, the Vermont legislature created a parallel, non-marriage, marital status for gay couples, but it was called a "civil union."
The Massachusetts case, of course, resulted in the ruling that because there is no reason to exclude these couples from marriage, and since no one is benefited when these couples are denied, they must be allowed to marry. That resulted in the first legal marriages here in the United States by same-sex couples, which are taking place in Massachusetts.
Meanwhile, of course, four countries so far around the world have moved to end the exclusion from marriage. Those are The Netherlands, Belgium, Canada, and even Roman Catholic Spain. And so we are seeing this extraordinary movement toward ending this discrimination around the world, as well as here in the United States.
BuzzFlash: Maybe we are just hopeless optimists that the rule of law will prevail in a secular society. But it seems only a matter of time before we will expand and fully live up to a true definition of freedom and civil rights. It seems inevitable that gay Americans will eventually have the right to get married and enjoy equal protection under the law. Those changes don’t happen on their own. It requires courage. It requires perseverance from individuals and institutions to realize those changes. As you wrote at one point in the book, the general story of our country is movement toward inclusion and equality. As a leading lawyer in this movement, do you agree that the end result is certain – it’s just a matter of when?
Evan Wolfson: I do believe that is true. But I have to point out that, it’s because the right wing knows that they are losing the discussion, and it’s because they don’t trust the next generation to continue this discrimination, that they are running around the country trying to cement into our state constitutions, as well as the federal Constitution, discriminatory barriers. That could make it very hard for the next generation to end this discrimination. And so, we must fight now to prevent these barriers from coming, in as many states as possible, while, at the same time, continuing the discussion so as to empower young people and fair-minded Americans of any age to bring this discrimination to an end sooner rather than later.
I do believe absolutely the long-term success is clear – that we will bring this discrimination to an end, as our country has in the past. But whether it happens in ten years or fifty years makes a big difference in each of our lives. And I’d like to be one of the ones who gets to live to see it.
BuzzFlash: Mr. Wolfson, you've written an excellent and very accessible book, and I appreciate your speaking with us.
Evan Wolfson: Thank you.
A BUZZFLASH INTERVIEW
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Why Marriage Matters: America, Equality, and Gay People's Right to Marry, by Evan Wolfson (A BuzzFlash Premium)
Freedom to Marry web site
Bio of Evan Wolfson
The Stonewall Riots - 1969 (socialistalternative.com)