Marriage equality: Losing forward

By Advocate.com Editors

Originally published on Advocate.com October 28 2004 12:00 AM ET

The following is the second half of a speech Wolfson delivered on September 30 at the National Lesbian and Gay Law Association’s Lavender Law Conference, an annual gathering of attorneys, legal academics, and law students. Find the full speech on the Freedom to Marry Web site.The Union: a House DividedIn past chapters of civil rights history unfolding on the battlefield of marriage, this conversation and this patchwork of legal and political struggles would have proceeded in the first instance—and over quite some time—in the states, without federal interference or immediate national resolution.That’s because historically, domestic relations, including legal marriage, have under the American system of federalism been understood as principally (and almost entirely) the domain of the states.States worked out their discrepancies in who could marry whom under the general legal principles of comity, reflecting the value of national unity. The commonsense reality that it makes more sense to honor marriages than to destabilize them was embodied in the relevant specific legal principle, generally followed in all states—indeed, almost all jurisdictions around the world—that a marriage valid where celebrated will be respected elsewhere, even in places that would not themselves have performed that marriage.States got to this logical result not primarily through legal compulsion, but through common sense—addressing the needs of the families and institutions (banks, businesses, employers, schools, etc.) before them. Eventually a national resolution came, grounded, again, in common sense, actual lived experience, and the nation’s commitment to equality, constitutional guarantees, and expanding the circle of those included in the American dream.But when it comes to constitutional principles such as equal protection—and, it now appears, even basic American safeguards such as checks and balances, the courts, and even federalism—antigay forces believe there should be a “gay exception” to the constitutions, to fairness, and to respect for families. Inserting the federal government into marriage for the first time in U.S. history, our opponents federalized the question of marriage, prompting the passage of the so-called Defense of Marriage Act (DOMA) in 1996.This federal antimarriage law creates an un-American caste system of first- and second-class marriages. If the federal government likes whom you marry, you get a vast array of legal and economic protections and recognition—ranging from Social Security and access to health care to veterans benefits and immigration rights to taxation and inheritance and a myriad of others (in a 2004 report the GAO identified 1,138 ways in which marriage implicates federal law). Under so-called DOMA, if the federal government doesn’t like whom you married, this typically automatic federal recognition and protection are withdrawn in all circumstances, no matter what the need.The federal antimarriage law also purported to authorize states not to honor the lawful marriages from other states (provided those marriages were of same-sex couples)—in defiance of more than 200 years of history in which, as I said, the states had largely worked out discrepancies in marriage laws among themselves under principles of comity and common sense, as well as the constitutional commitment to full faith and credit.When this radical law was first proposed, some of us spoke up immediately saying it was unconstitutional—a violation of equal protection, the fundamental right to marry, federalist guarantees such as the full faith and credit clause, and limits on Congress’s power. Ignoring our objections, our opponents pressed forward with their election-year attack.Now they concede the unconstitutionality of the law they stampeded through just eight years ago and are seeking an even more radical means of assuring gay people’s second-class citizenship, this time through an assault on the U.S. Constitution itself as well as the constitutions of the states.Because they do not trust the next generation, because they know they have no good arguments, no good reason for the harsh exclusion of same-sex couples from marriage, our opponents are desperate to tie the hands of all future generations, and as many states as possible, now.This patchwork—and especially the next few weeks and months—will be difficult, painful, even ugly, and we will take hits. Indeed, we stand to take several hits in the states where our opponents have thrown antigay measures at us in their effort to deprive our fellow citizens of the information, the stories of gay couples to dispel stereotypes and refute right-wing lies, and the lived experience of the reality of marriage equality. While it is especially outrageous that the opponents of equality are using constitutions as the vehicles for this division and wave of attacks on American families, in the longer arc, their discrimination will not stand.Here are a few basic lessons we can cling to in the difficult moments ahead, to help us keep our eye on the prize of the freedom to marry and full equality nationwide, a prize that shimmers within reach.

Wins trump lossesLesson number 1: Wins trump lossesWhile we stand to lose several battles this year, we must remember that wins trump losses.Wins trump losses because each state that ends marriage discrimination gives fair-minded Americans to see and absorb the reality of families helped and no one hurt when the exclusion of same-sex couples from marriage ends. Nothing is more transformative, nothing moves the middle more, than making it real, making it personal—and seeing other states join Canada and Massachusetts will be the engine of our victory.Losing forward

Lesson number 2: Ever where we cannot win a given battle, we can still engage and fight so as to at least lose forward, putting us in a better place for the inevitable next battle.Now let me say a little more about this idea of “losing forward.” After all, as someone most famous for the cases I lost, I’ve built an entire career on it.Losing forward is a way that all of us can be part of this national campaign, no matter what our state. Even the more challenged states, the states with the greater uphill climb, the states where we are most outgunned and under attack—even those of us in the so-called red states still have a pivotal part in this national movement and can make a vital contribution.In every state—even those where we cannot win the present battle, but fight so as to lose forward—we have the opportunity to enlist more support, build more coalitions, and make it possible for more candidates and nongay opinion-leaders to move toward fairness. All this contributes to the creation of the national climate of receptivity in which some states may cross the finish line before others but everyone can be better positioned to catch the wave that will come back to every state in this national campaign.Work on the ground in Georgia, for example, can get us a Bob Barr speaking out against the constitutional amendment or make districts safe for African-American leaders or “surprising” voices to speak out in support of marriage equality. Work in Michigan—while perhaps not enough to win this round—can still help enlist prominent labor or corporate leaders to our cause.And working together, this national chorus will indeed swell, with some states further along and all participating, until all are free.Wins trump losses. As long as we repel a federal constitutional amendment and continue to see some states move toward equality, beating back as many attacks as possible and enlisting more diverse voices in this conversation, we will win.Tell the truthsLesson number 3: Tell the truths.Now, the principal reason we are going to take hits this year and lose many, if not all of the state attacks in November is because our opponents are cherry-picking their best targets and depriving the reachable middle of the chance to be reached. They have more of a head start, more money, and more infrastructure through their megachurches and right-wing partners…and fear-mongering at a time of anxiety is easy to do. And of course, historically, it is difficult to win civil rights votes at the early stage of a struggle.But to be honest, there is another reason too that we will not do well in most of these votes this year. Quite simply, our engagement, our campaigns in almost all of these states—are “too little, too late.” We are starting too late to have enough time to sway people to fairness…and we are giving them too little to think about to guide them there. We have to avoid that error in the next wave of battles we face next year, which means, from California to Minnesota, from Wisconsin to Maine, starting not too late, but now, and by saying the word truly on people’s minds, doing it right.Put another way, the country right now is divided roughly in thirds. One third supports equality for gay people, including the freedom to marry. Another third is not just adamantly against marriage for same-sex couples, but, indeed, opposes gay people and homosexuality, period. This group is against any measure of protection or recognition for lesbians and gay men, whether it be marriage or anything else.And then there is the “middle” third—the reachable but not yet reached middle. These Americans are genuinely wrestling with this civil rights question and have divided impulses and feelings to sort through. How they frame the question for themselves brings them to different outcomes; their thinking is evolving as they grapple with the need for change to end discrimination in America.What moves that middle?To appeal to the better angels of their nature, we owe it to these friends, neighbors, and fellow citizens to help them understand the question of marriage equality through two truths:Truth 1: Ending marriage discrimination is first and foremost about couples in love who have made a personal commitment to each other, who are doing the hard work of marriage in their lives, caring for one another and their kids, if any. (Think couples like Del Martin and Phyllis Lyon, who’ve been together more than 50 years.) Now these people, having in truth made a personal commitment to each other, want and deserve a legal commitment.Once the discussion has a human story, face, and voice, fair-minded people are ready to see through a second frame:Truth 2: The exclusion of same-sex couples from marriage is discrimination; it is wrong, it is unfair, to deny these couples and families marriage and its important tangible and intangible protections and responsibilities. America has had to make changes before to end discrimination and unfair treatment, and government should not be denying any American equality under the law.When we see lopsided margins in these votes, it means that under the gun in the first wave of electoral attacks, we have not as yet reached this middle. We can’t be surprised not to win when in so many campaigns, and over so many opportunities to date (electoral campaigns and just month-to-month conversations), we have failed to give this middle third what they need to come out right.When in the name of “practicality” or advice from pollsters or political operatives we fail to put forward compelling stories and explain the realities of what marriage equality does and does not mean, it costs us the one chance we have to do the heavy lifting that moves people. We wind up not just not winning but not even losing forward.By contrast, consider how we lost forward in California.In 2000 we took a hit when the right wing pushed the so-called Knight initiative and forced an early vote on marriage. We lost the vote, but because there had been some, though not enough, education about our families and the wrong and costs of discrimination, polls showed that support for marriage equality actually rose after the election. And the very next year, activists pressed the legislature to enact a partnership law far broader than had been on the table in California before then. Our engagement over marriage continued, and within a couple years, legislators voted again, this time in support of an “all but marriage” bill, which takes effect this coming January. And California organizations and the national legal groups continue to engage for what we fully deserve—pursuing litigation in the California courts and legislation that would end marriage discrimination.If we do our work right, making room for luck, we may see marriage in California, our largest state, as soon as next year.To go from a defeat in 2000 to partnership and all but marriage in 2004 with the possibility of marriage itself in 2005—that’s called winning.

Generational momentumLesson number 4: Remember, we have a secret weapon: death.Or to put it more positively, we on the side of justice have generational momentum. Younger people overwhelmingly support ending this discrimination.Americans are seeing more and more families like the Cheneys and realizing, with increasing comfort, that we are part of the American family. The power of the marriage debate moves the center toward us, and as young people come into ascendancy, even the voting will change.This is our opponents’ last-ditch chance to pile up as many barricades as possible, but again, as long as we build that critical mass for equality and move the middle, we win.The stakesWhy is it so important that we now all redouble our outreach, our voices, our conversations in the vocabulary of marriage equality?

What is at stake in this civil rights and human rights moment?If this struggle for same-sex couples’ freedom to marry were “just” about gay people, it would be important—for gay men and lesbians, like bisexuals, transgendered people, and our nongay brothers and sisters—are human beings, who share the aspirations for love, companionship, participation, equality, mutual caring and responsibility, protections for loved ones, and choice.Yes, if this struggle were “just” about gay people, it would be important, but it is not “just” about gay people.If this struggle were “just” about marriage, it would be important, for marriage is the gateway to a vast and otherwise largely inaccessible array of tangible and intangible protections and responsibilities, the vocabulary in which nongay people talk about love, clarity, security, respect, family, intimacy, dedication, self-sacrifice, and equality. And the debate over marriage is the engine of other advances and the inescapable context in which we will be addressing all LGBT needs, the inescapable context in which we will be claiming our birthright of equality and enlarging possibilities for ourselves and others.Yes, if this struggle were “just” about marriage, it would be important, but it is not “just” about marriage.What is at stake in this struggle is what kind of country we are going to be.

All of us, gay and nongay, who share the vision of America as a nation that believes that all people have the right to be both different and equal, and that without real and sufficient justification, government may not compel people to give up their difference in order to be treated equally—all of us committed to holding America to that promise have a stake in this civil rights/human rights struggle for the freedom to marry.And if we see every state, every methodology, every battle, every victory, and even every defeat as part of a campaign—and if we continue to enlist nongay allies and voices in this campaign, transforming it into a truly organic movement for equality in the grand American tradition,

We are winning.There is no marriage without engagement.