Sunday, May 18, 2014

Remembering Heroes of Marriage Equality

      Richard Kluger opened his magisterial history of the struggle for racial equality in education, Simple Justice, by telling the story of poor black families in backwater Clarendon County, S.C., protesting for school bus transportation for their children. The NAACP Legal Defense Fund turned the grassroots protest into a court case, Briggs v. Elliott, which predated by a year the case now memorialized in history as Brown v. Board of Education.
      Jo Becker opens her book on “the fight for marriage equality” with the story of Chad Griffin, a well-to-do, well-connected political and public relations consultant in chi-chi West Hollywood, Calif.  Becker, an award-winning journalist, embedded herself in Griffin’s camp for four years to chronicle what she hoped would be a landmark Supreme Court ruling for gay marriage.
       Unfortunately for Becker and her book, Forcing the Spring, the Supreme Court did not use Griffin’s built-from-the-top-down case to outlaw marriage discrimination against gay and lesbian couples in one judicial blow. Undeterred, she opens her book, however, by likening Griffin to civil rights heroine Rosa Parks and depicting Griffin’s decision to challenge California’s 2008 ban on gay marriage, Proposition 8, as the beginning of the marriage equality revolution.
      The movement for marriage equality for same-sex couples actually marked a 10-year anniversary last week. The first legally sanctioned marriages of gay and lesbian couples in the United States were officiated in Massachusetts on May 17, 2004, thanks to a ruling six months earlier by the state’s highest court. In its 4-3 ruling in Goodridge v. Dep’t of Public Health (2003), the Supreme Judicial Court of Massachusetts said same-sex couples had a right under the state’s constitution to the legal benefits of civil marriage and gave the Massachusetts legislature 180 days to pass a law consistent with its ruling. When the state Senate asked whether civil unions for same-sex couples would suffice, the court said no — setting the stage for marriages to begin when the 180-day deadline expired.
      Becker’s book includes no index entry for Goodridge and only slight references to the lead attorney, Mary Bonauto, who had been litigating gay marriage cases in New England states for several years by then. Bonauto and her colleagues at the Boston-based Gay and Lesbian Advocates and Defenders went on to win the first lower court ruling to strike down the federal Defense of Marriage Act (DOMA), which barred federal marriage-based benefits for legally married same-sex couples.
      Bonauto appears for the first time in Becker’s book at page 280. Becker uses her only to commend the federal court trial that Griffin’s dream team of strange bedfellow lawyers — conservative Republican Theodore Olson and liberal Democrat David Boies — put together to challenge Proposition 8. 
      Another of the heroes given short shrift in Becker’s account is Evan Wolfson, who can rightly be called the intellectual father of the marriage equality movement and its most important political tactician. As a student at Harvard Law School, Wolfson wrote a 140-page thesis, “Same-Sex Marriage and Morality: The Human Rights Vision of the Constitution,” one of the earliest arguments for recognizing marriage rights for gay and lesbian couples.
      Wolfson went on to head the national marriage project at Lambda Legal Defense and Education Fund from 1989 to 2001 before founding Freedom to Marry as a stand-alone lobbying and election-oriented organization. Becker notes this history, but calls Freedom to Marry’s strategy “plodding.” Wolfson appears mainly as one of the established gay rights leaders who warned against Griffin’s go-for-broke federal court strategy.
      The more serious slights in Becker’s book, however, are the countless gay men, lesbians, and straight allies who had been working on the marriage issue for years before Griffin came on to the scene. The plaintiffs in the early marriage cases took some risks in agreeing to be identified with a cause that was then politically unpopular and legally uncharted. The recruited plaintiffs in the Prop 8 case — Paul Katami and Jeff Zarrillo and Kris Perry and Sandy Stier — sacrificed some privacy and suffered some harassment, but they had no real fear of backlash in their gay-friendly communities in Los Angeles and the San Francisco Bay area.
      Becker also credits Griffin, and Griffin alone, with marriage equality’s first electoral victories: the pro-gay marriage votes in November 2012 in Maine, Maryland, Minnesota, and Washington. In Becker’s telling, it was Griffin’s decision, as president of the national Human Rights Campaign, to funnel money to those states that turned the tide. Freedom to Marry’s role goes mostly unmentioned — and the same for the in-state organizers and political foot soldiers.
      At the Supreme Court, Becker treats the Prop 8 case as the main attraction and the DOMA case the justices agreed to hear, United States v. Windsor, as sideshow. When the Prop 8 case is dismissed without a ruling, Griffin nevertheless manufactures the iconic photo op of the four California plaintiffs emerging arm in arm, along with Griffin and Boies, at the top of the Supreme Court steps. And Becker gives Olson the credit for the expansive language that Justice Anthony M. Kennedy included in Windsor in striking down DOMA — language cited in the unbroken string of pro-gay marriage rulings since.
      Marriage equality remains a work in progress. Becker has told a good, if partly misleading, story. The history of the fight for marriage equality is yet to be written.

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