Twenty years ago, only one state prohibited discrimination on the basis of sexual orientation (Wisconsin). No state and few companies offered domestic partnership benefits. In 1986, the U.S. Supreme Court in Bowers v. Hardwick upheld the constitutionality of laws that criminalized gay sex, thus giving official sanction and support for other laws and policies that discriminated against gays and lesbians. In such a dismal landscape, no one imagined the possibility of civil unions or same-sex marriage—except Evan Wolfson and Mary Bonauto.
This was the world Evan Wolfson faced when he entered Harvard Law School in the early 1980s. Although he had the courage and forethought to write his senior law thesis on “Same-Sex Marriage and Morality: The Human Rights Vision of the Constitution,” he started his legal career on a fairly traditional track by joining the Brooklyn district attorney’s office out of law school. While there, he became known for his pro bono civil rights work, writing amicus briefs for Batson v. Kentucky (racial discrimination in jury selection) and People v. Liberta (marital rape), and cocounseling with Lambda Legal Defense and Education Fund. After stints as a law professor and as associate counsel to Lawrence Walsh during the Iran-Contra investigations, Wolfson settled into his true calling as a pioneer in the modern GLBT rights movement by joining Lambda in 1989.
During his years at Lambda, Wolfson represented clients and submitted amici briefs in cases involving the definition of “spouse” and “family,” discrimination against people with HIV and AIDS, the military’s “don’t ask, don’t tell” policy, and state sodomy laws. He even argued the case of Dale v. Boy Scouts of America in the U.S. Supreme Court, after the New Jersey Supreme Court held that the Boy Scouts’ policy against gay members violated its state public accommodations law. Wolfson also started Lambda’s marriage project.
Mary Bonauto began her legal career at a private firm in Portland, Maine. Although she became known for representing GLBT clients and causes, life changed in 1989, when Massachusetts became the second state to prohibit discrimination based upon sexual orientation. Boston’s Gay & Lesbian Advocates & Defenders (GLAD) decided to hire an attorney to enforce the new law. Bonauto answered the call.
While at GLAD, Bonauto has become one of the nation’s premier thinkers and litigators on GLBT issues, especially those related to family law, including second parent adoption, visitation and custody for nonbiological de facto parents, and the enforcement of documents such as durable powers of attorney for same-sex couples. While fighting these battles, she saw more and more ways in which GLBT couples and their children were denied basic rights and benefits because states denied them the right to marry.
In 1991, Wolfson joined local attorney Dan Foley to fight for marriage under the Hawaii state constitution in Baehr v. Miike . In 1993, the Hawaii Supreme Court held that denying same-sex couples the right to marry presumptively constituted sex discrimination, for which the state must establish a “compelling reason.” On remand, the trial court held that Hawaii failed to meet that burden and ruled for the plaintiffs. Although the victory was short-lived because Hawaiians voted to amend the state constitution to ban gay marriage while the matter was on appeal, the case sent ripples through the GLBT rights community and the nation.
In 1997, Bonauto and GLAD joined lawyer Beth Robinson to fight for same-sex marriage in Baker v. Vermont . They won, but the state supreme court left it to the state legislature to decide between marriage and the “separate but equal” status of civil unions. It chose the latter. In 2001, Bonauto took the fight to Massachusetts in Goodridge v. Massachusetts Department of Public Health . She insisted that only marriage—and not civil union—would satisfy the equal protection provisions of the Massachusetts Constitution. While Bonauto awaited a decision, the legal landscape began to change.
The Canadian provinces of Ontario and British Columbia authorized same-sex marriage, and the U.S. Supreme Court reversed its infamous Bowers v. Hardwick decision and voided Texas’s sodomy law in Lawrence v. Texas . Months later, the Massachusetts Supreme Court cited Lawrence in ruling that the state must allow same-sex couples to marry. This time there were no “buts” and no state constitutional amendments. Gay marriage was here to stay.
In 2003, Wolfson left Lambda to start Freedom to Marry. Shortly thereafter he published a book entitled Why Marriage Matters: America, Equality, and Gay People’s Right to Marry. Since then, he has continued to work with Bonauto and other GLBT advocates to help win same-sex marriage through the courts and/or legislatures in Connecticut, New Hampshire, Maine, and even Iowa. Despite recent setbacks in California (where residents approved Proposition 8 to amend the California constitution to preclude same-sex marriage after its state supreme court held otherwise), the march toward the freedom to marry continues on at a pace unimagined by anyone twenty, ten, or even five years ago—except by Wolfson and Bonauto.
Twenty years ago, the nation did not know or think much about GLBT civil rights. Now, thanks to the work of Wolfson and Bonauto, the nation and its legal landscape have changed and we can all look forward to a day when all citizens have the freedom to marry.