Tuesday, April 28, 2015. This was the day that the Supreme Court would be hearing the case that could very well bring us the freedom to marry throughout the nation. I was staying at the Capitol Hill Hotel adjacent to the Library of Congress in Washington, DC. I woke at 6:30 a.m., eager to hear my dear friend Mary Bonauto present the oral arguments for our side. Mary and I had been fighting this battle together for more than a decade.
Despite the magnitude of the day, I felt oddly calm. I wasn’t nervous like I’d been two years before, when the Supreme Court heard Edie Windsor’s challenge to the Defense of Marriage Act along with the Prop 8 case. That was the first time the court had heard a challenge to marriage discrimination. Now there were thirty-seven states in the win column, comprising 75 percent of the us population. A February CNN/ORC poll showed that a substantial majority of Americans believed gays and lesbians had “a constitutional right to get married and have their marriage recognized by law as valid”—with 63 percent in favor and 36 percent opposed. Even in the South, 57 percent of respondents supported marriage equality, with 60 percent support or greater in every other region in the country. In addition, we’d been on a tremendous winning streak in court—with more than sixty victories in federal and state courts since DOMA had been struck down, versus only a handful of losses.
Even though I felt confident, however, I still took a few extra precautions for good luck. I wore the same purple tie that I’d worn the day of the Windsor oral arguments, and I put whole milk rather than skim in my coffee. That was a nod to the line Ruth Bader Ginsburg had used two years ago, when she said that marriages without federal recognition were “skim milk marriages.”
As I walked along the streets of Capitol Hill toward the Supreme Court that sunny morning, the Jewish prayer “Oseh Shalom” (Make Peace) came to mind. After years of fighting for our dignity and equality, I felt like our movement had brought the country to where it needed to be. Now was the time.
The federal court victories that had begun in Utah in December 2013 had continued nearly unabated for the next eight months. Oklahoma in January. Virginia and Texas in February. Michigan in March. Idaho, Oregon, and Pennsylvania in May. Indiana, Wisconsin, Kentucky, Colorado, and Florida over the summer. The opinions had been written by judges who had been appointed by both Republican and Democratic presidents, and all relied on the reasoning in the Supreme Court’s DOMA decision, which eviscerated any justification for barring same-sex couples from marrying.
Oregon and Pennsylvania didn’t file appeals, so those rulings went into effect right away. In the other states, the decisions were “stayed”— in other words, put on hold—while appeals were filed in the circuit courts. Each circuit court controls from three to nine states and—unless the Supreme Court says otherwise—interprets the us Constitution for those states. The outcomes of those appeals were not foregone conclusions. Each case would be heard by a randomly selected panel of three appeals court judges. But the first three panels ruled in our favor, and in time for one of those cases to be taken up by the Supreme Court during the 2014–15 term, which began in October.
At the beginning of each term, the Supreme Court’s first order of business is to figure out which cases it will consider. Typically, the court takes up less than 1 percent of the cases before it. The nine justices meet in private to vote, with four votes required to hear a case.
On October 6, we received the shocking news that the Supreme Court had declined to hear any of the appeals, which went against all conventional wisdom.
Initially, I was frustrated. Did this mean that we’d have to win in each of the thirteen circuit courts in order to prevail nationwide? How long would that take? And even if we succeeded in that effort, we wouldn’t have the finality of a Supreme Court ruling declaring the righteousness of our cause. I wanted to finish with a bang, not a whimper.
There was still the possibility that one of the circuit courts would rule against us, obliging the Supreme Court to arbitrate between competing rulings and clarify what would become the law of the land. Two more circuit court opinions were pending, but we had no idea when those courts would rule. The clock was ticking on this Supreme Court session. I couldn’t bring myself to root for a loss, but I knew that a loss would get us to the Supreme Court more quickly.
At the same time, the practical result of the court’s action—or non-action—was huge. In the five states that had appealed to the Supreme Court—Indiana, Oklahoma, Utah, Virginia, and Wisconsin— marriages would begin immediately, as the three circuit rulings had rejected those states’ bans. What’s more, the Supreme Court’s refusal to take up those cases meant that the rulings were now law for all the rest of the states in those three circuits. That meant that marriage bans in six additional states—Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming—also would vanish. So the Supreme Court’s non-action would actually end bans in eleven states, increasing the number of freedom-to-marry states from nineteen to thirty.
By rejecting these initial cases, the court had given a strong indicator as to where it would land once it did take up the issue. If the majority of justices ultimately planned to rule against us, it seemed implausible that the court would allow marriage to begin in eleven new states, only to undo that action in the future. On the contrary, it seemed as if the court was laying the groundwork for a positive ruling, helping us out by adding to the number of states with marriage prior to its final ruling.
On October 7, the day after the Supreme Court made its announcement, the Ninth Circuit, covering most of the western states, held unanimously that the Idaho and Nevada marriage bans were unconstitutional. This meant that marriage bans would end in all of the states in that circuit where they remained in place: Idaho, Nevada, Alaska,
Arizona, and Montana. We now had sixteen new states, meaning that 65 percent of the country would soon be living in a state where gay couples could marry.
Based on past experience, we at Freedom to Marry had always argued that there would not be much direct resistance to a favorable ruling. We believed that the fear of a backlash had been overstated. Now, with marriage equality becoming law in a few states in the South, as well as in some of the most conservative states in the country (Utah and Wyoming were Obama’s worst-performing states in 2012), we had our sternest test. Overall, we were proven right. Some elected officials took the opportunity to become demagogues but, in the vast majority of cases, clerks did their jobs and provided marriage licenses to same-sex couples. Even where everyone wasn’t in agreement, there was very little organized resistance. It appeared that even in conservative states, once marriage became the law, support continued to increase steadily or to actually accelerate.
Once people moved beyond their fears and negativity and saw the love, commitment, and joy of same-sex couples in their own communities, they realized that their concerns had been misplaced.
On Thursday, November 6, 2014, our winning streak came to an end. The Sixth Circuit Court of Appeals ruled against us, 2–1, in a decision that covered cases from Kentucky, Michigan, Ohio, and Tennessee. Couples in all four states appealed to the Supreme Court and, on January 16, 2015, we got the news we’d been waiting for. The court would take up these cases, consolidate them all into one, and reach an ultimate decision by the end of the term, in late June or early July 2015. Oral arguments were scheduled for Tuesday, April 28, with briefs due March 6.
This case felt like the right one for several reasons. First, each of the four national LGBT legal organizations—the ACLU, GLAD, Lambda Legal, and the National Center for Lesbian Rights—had been involved in at least one of the original cases, before consolidation. This meant they’d all be working together on what had the possibility of becoming the final presentation on marriage to the Supreme Court. Because these organizations had helped guide the legal strategy on marriage equality for many years, it was great news that they’d all get a chance to participate in this historic moment.
Even more thrilling was the fact that the attorney teams had decided to name Mary Bonauto as the lead attorney in making our arguments to the Supreme Court, joined by the solicitor general of the United States, Donald Verrilli, and Supreme Court expert Douglas HallwardDriemeier. Bonauto had been carefully stewarding the legal strategy on marriage since Vermont in 1998, and it felt like poetic justice that she would argue this one.
Exceedingly modest, Bonauto called Evan Wolfson before agreeing to do the argument. She was especially concerned that she’d only have about a month to prepare.
Evan was thrilled that his comrade-in-arms during all these years had gotten the nod. “You have to do this,” he told her. “Nobody could do this better, and you could do it tomorrow if you had to.”
Evan had no doubt she’d do it. Mary was steely tough, and she was in.
Bonauto went back to her home in Maine and buried herself in preparations. She, for one, didn’t think that a win was a sure thing and was taking nothing for granted. The case would not rest solely on the oral arguments, of course. The briefs of the legal team, along with those of “friends of the court”—interested parties who wanted to weigh in—would lay out the case in powerful terms. And this wasn’t new terrain—the justices had heard arguments on marriage just two years earlier. Still, the oral arguments were one of the crucial elements and she felt the weight of the world on her shoulders. She thought about all of the couples and families she’d represented over twenty-five years of heading up GLAD’s civil rights practice. As the first attorney to present, she’d be peppered with questions, one after another, and she’d have to be quick on her feet. She wanted to be ready for anything the justices threw at her, so she dove right in to work, determined to squeeze as many minutes of preparation as possible out of each day.
While I shared the conventional wisdom that our side would prevail, I wanted our team at Freedom to Marry to uncover every possible person of influence and get them to announce their support before oral arguments. This was our last chance to show both how much momentum we had and how much support we had—in unexpected quarters and from every part of the country. I wanted us to leave no stone unturned.
I asked our team of organizers to enlist signers for friend-of-the-court briefs. In particular, we focused on four briefs—one for major businesses, one for Republican leaders, one for clergy, and one for mayors—that I thought would be most influential among the two Republican-appointed justices that could be in play: Anthony Kennedy and Chief Justice John Roberts.
Two hundred companies had signed onto the business brief for the DOMA case two years before. I wanted us to blow that number out of the water and get an even stronger showing of Fortune 500 companies. The law firm Morgan, Lewis & Bockius led the outreach effort. I pulled in Open Finance, a group of senior LGBT Wall Street execs, as well as several other key individuals and groups with strong ties to the business world. Together, we lined up 379 companies—including 40 from the Fortune 100. The list also included 33 Wall Street and financial firms— more than double what we’d had from high finance the last time out. Knowing the media’s interest in anything regarding professional sports, I reached out to old Boston friends who were close with Robert Kraft, the owner of the New England Patriots. Soon we had the Super Bowl champs, along with the World Series champions San Francisco Giants and the Tampa Bay Rays onboard. Our efforts secured the support of many large companies headquartered in the South and Midwest, including American Airlines, Bank of America, Coca Cola, ConAgra Foods, Cummins, General Mills, Nationwide, and Procter & Gamble. We had now grown far beyond such firms as Google and Starbucks, which cater to our community, and become able to reach some of America’s most iconic brands.
As for Republicans, Ken Mehlman once again opened his deep Rolodex and worked the phones to compile an A-list group that included twenty-three current and former members of Congress, retired general Stanley McChrystal, and even GOP billionaire David Koch. Freedom to Marry added multiple young conservative leaders and former state GOP officials, people we’d been cultivating for months.
My personal target was my former long-time boss, us Senator Jack Danforth. I’d stayed in close touch with Danforth over the years, encouraging him to shift his perspective on LGBT equality issues. And he’d done so. His willingness to think independently was something I had always admired deeply. At my request, he’d penned a poignant op-ed in the St. Louis Post-Dispatch on why Missouri should pass a strong anti-discrimination law to protect LGBT people. He wasn’t quite there on marriage yet, but I thought it was worth one last shot.
I laid out a lengthy case in an e-mail, concluding, “It’d mean a lot to me for you to add your name—and I’ll love you whether you do or not!” Three hours later, I got his answer: “There’s time for political debate on values issues and time to bring the debate to a close. It’s time to bring it to a close. You can sign me on.”
In the end, through the collective effort of many supporters, we were able to enlist more Republican signers to our briefs than our opponents were. Significantly, not one large corporation signed onto a brief against us. We secured nearly 2,000 signers on the clergy brief, with the greatest number from Ohio, where a case was pending before the Supreme Court. And we enlisted more than 200 mayors and 40 cities for the mayoral brief. These were just a few of the many briefs that were filed for our side.
We had one additional burst of momentum in the period before oral arguments. When federal courts in Florida and Alabama ruled our way, the Supreme Court again refused to stay the decisions. So as Mary Bonauto got ready to make our case, Florida—the fourth largest state in the country—and Alabama—the center of many of the civil rights battles of the 1950s and 1960s—had joined as freedom-to-marry states. The subsequent resistance to the federal ruling by the Alabama Supreme Court was a reminder of the importance of us Supreme Court involvement in civil rights cases.
On the morning scheduled for oral arguments, Mary Bonauto woke early at the Residence Inn in downtown Washington, DC, after a difficult night of sleep. But that was something she’d grown accustomed to recently. She’d been holed up at the hotel for nine days, and every morning she’d woken at dawn and spent the day reviewing cases and briefs, prepping for potential questions from justices, and practicing the points she wanted to make. She knew that her main job in oral arguments was to drive home the points that would advance the ball while conceding nothing that could harm the case.
Mary had completed several practice or moot courts, including one where five conservatives acted as justices and grilled her for more than an hour. In fact, most of her contact with the outside world was with other attorneys on the case, including her colleagues from LGBT legal organizations (who were in Washington with her), a couple of Supreme Court experts, and Douglas Hallward-Driemeier, who would argue another part of the case. All had helped her hone her arguments.
The night before the big day, Mary did what she had done for every one of her previous oral arguments: she condensed the points she wanted to make in the order in which she wanted to make them, writing them out on two legal-sized pages. She did so knowing that she’d probably only make it through her first couple of sentences before the justices began bombarding her with questions. But now wasn’t the time to prepare any differently. This was an approach that had served her well.
That morning, I walked around the front of the Supreme Court building, looking at the signs that thousands upon thousands of our advocates were holding, and greeting people I’d come to know over the past decade of this fight. One woman held a dog on a leash and a sign that read, “Tax-Paying Lesbian With Supportive Black Pug.” She told me that she’d officiated at 700 weddings of same-sex couples in Northampton, Massachusetts. We reminisced about the early days in that state, when we went to constitutional conventions and fought back against anti-gay constitutional amendments. We snapped a couple of pictures and I gave her a hug.
I also took in some of our opponents’ outrageous signs, including “Homo Sex Is Sin,” “Your Sin of Sodomy Is Worthy of Death,” and “Homosexuality Is a Threat to National Security.” Although this horrific scene was familiar, I now felt almost nostalgic about it. I knew that, if all went as I hoped and expected, this could be my last encounter with such protesters. I also knew that America as a whole had moved far beyond them, that they had become almost a parody of themselves. In fact, one of Jon Stewart’s correspondents from The Daily Show was standing by, ready to interview some of them for what would clearly be a satiric segment.
I met up with Evan Wolfson at 8:30, between the Russell and Dirksen Senate Office Buildings, a block north of the court. As we walked along First Street, past all those who were rallying on our side, people kept coming up to both of us, especially Evan, with heartfelt thanks. It felt amazing to be walking into the Supreme Court for these arguments with the guy who was responsible—more than anyone else—for driving the movement to this point over the past three decades.
We went up the steps of the court, where I told the guards that we had reserved seats inside the courtroom. I’d secured two of these highly sought-after seats through old Republican connections, and couldn’t help but smile at the irony of my own political journey over the years. Evan and I were the special guests of Justice Clarence Thomas. We went through multiple security checks, locked our cellphones in special lockers, then took our places in the ornate courtroom, which was packed for this historic argument.
Mary Bonauto had arrived for a 9:00 a.m. briefing in the Supreme Court clerk’s office, along with all the other attorneys who’d be arguing that morning. On her way out, she ran into her spouse Jenny and their twin daughters, who were there to watch her argue the case. The past week and a half in Washington was the longest she’d ever been away from her children. They all embraced. “Go get ’em,” Jenny told Mary.
What a great omen, Mary thought. She was ready.
At 9:55 a.m., Mary walked into the courtroom and took her position at the front of the room.
Five minutes later, the marshal banged his gavel and asked everyone to rise. “God save the United States and this honorable court,” he said, as the justices came forward and took their seats.
“Ms. Bonauto,” said Chief Justice Roberts.
Mary stepped forward and began: “Mr. Chief Justice and may it please the court. The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society.”
She got two more sentences in before the justices began their barrage. I was focused on Justice Kennedy, who spoke up early.
“The word that keeps coming back to me in this case is millennia,” he said. “This definition has been with us for eight millennia. And it’s very difficult for the court to say, oh, well, we know better.”
I’d been told over and over not to read too much into the questioning in oral arguments, but it wasn’t comforting to hear our crucial swing vote saying this right off the bat.
Archconservative justice Samuel Alito was clearly prepared to try to knock Mary off her game. He brought up ancient Greece as an example of a place that accepted homosexuality but still didn’t allow gays to marry. Trying to show that the notion of gay couples marrying had been a novel one over the course of history, and not as a result of discriminatory treatment per se, he asked, “So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”
“I can’t speak to what was happening with the ancient philosophers,” Mary responded, steering the conversation back to the constitutional issues at hand.
Alito also asked two questions about polygamy. Then fellow archconservative Antonin Scalia chimed in: Would clergy who refused to perform religious marriages for same-sex couples still be authorized by the state to issue marriage licenses? This struck me as an odd line of questioning, since it seemed clear that the First Amendment would protect clergy.
Mary easily shot all of these questions down; for her, they were well-trodden issues.
Chief Justice Roberts raised the most serious question: Wouldn’t it be better to continue letting this issue play out in the political arena, in the states, rather than allowing a Supreme Court ruling to resolve the debate, particularly given “how quickly has been the acceptance of your position across broad elements of society”?
“The closing of debate can close minds,” Roberts said, “and it will have a consequence on how this new institution is accepted.”
Mary Bonauto responded forcefully. Practically speaking, she argued, “there are some serious structural problems,” referring to the constitutional amendments barring the freedom to marry in many states. “It is extraordinarily difficult to amend the Constitution.”
More fundamentally, though, she spoke of the serious costs of waiting while this debate played out. In many places, there were “virtually no protections for gay and lesbian people in employment, in parenting.” She referenced her clients from Michigan, who “are not allowed to be parents of their own children.”
When Mary’s thirty minutes came to an end, she sat down.
It had been quite a barrage against our position, and the liberal bloc of the court hadn’t pushed back very hard, seeming content to let Mary sink or swim on her own. She had weathered the storm well, however, conceding nothing that would hurt the case while also reminding the justices that a drawn-out, state-by-state fight would not be a neutral result, for it would leave many couples and families as second-class citizens for an indefinite future.
Next up was the solicitor general of the United States, Donald Verrilli, arguing on behalf of the Obama administration. The president had been an ally for some time now, but it was still a momentous feeling to have the us government arguing on our side before the Supreme Court.
As Verrilli was about to begin, a religious fanatic a couple of rows behind me started screaming his head off. “If you support gay marriage, you will burn in hell!” he shouted, as security guards rushed over to drag him away. “Homosexuality is an abomination!”
This incident was jarring, but it reinforced Mary’s argument that resolving the issue via referendum at the state level would be dangerous for a minority against which there was still so much hostility.
The solicitor general began his argument. Unlike Mary, he was allowed to speak uninterrupted for a while.
At one point, Justice Kennedy spoke of the “tremendous amount” we’d learned as a society about gay people since he’d written the majority opinion in Lawrence v. Texas, the case that overturned laws banning consensual gay sex more than a decade ago.
The solicitor general concurred. Those ten years, he said, have “brought us to the point where we understand now, in a way even that we did not fully understand in Lawrence, that gay and lesbian people and gay and lesbian couples are full and equal members of the community.”
Verrilli closed his argument simply and powerfully. “Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.”
Next up was the attorney for the state of Michigan, John Bursch, a former state solicitor general who was defending the marriage ban.
I presumed he’d rely on the notion that Justice Roberts had raised, that the country would be better off if the issue played out in the states. But instead he focused on the idea that allowing same-sex couples to marry would damage marriage for straight people. His core argument was that the only legitimate purpose of marriage is to bind children with their biological parents. If gay couples can marry, he argued, that would change that definition, which would lead to fewer straight couples marrying. As a result, more children would be born out of wedlock, with resultant harms.
“When you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad,” he argued, “that has consequences.”
I was floored. Was this the best they could come up with? There were so many ways to poke holes in this argument. None of the conservatives on the court spoke in support of it, while the liberals, along with Justice Kennedy, challenged him aggressively.
What about straight couples who couldn’t have children or didn’t intend to have children? Should they be blocked from marrying if the only legitimate reason for marriage is to bind kids to their biological parents? How does allowing same-sex couples to marry interfere with the relationship between straight couples and their children? Is there any proof at all—or any logic at all—in the notion that gay couples marrying would lead to a reduction in straight couples marrying? And what about all of the gay parents who have kids and the importance of strengthening those families?
Bursch responded by rejecting “the marriage view on the other side here . . . that marriage is all about love and commitment.” He continued: “The state doesn’t have any interest in that.” And when pushed to offer proof that marriages of heterosexual couples would be diminished if gay couples could marry, he offered none, only the assertion that “it’s reasonable to believe that.”
Justice Kennedy wasn’t buying the limited view of marriage that the Michigan attorney was peddling. He argued that marriage was noble and sacred in its binding of two people together, and that, at its heart, it bestows dignity on committed couples, whether or not they procreated. “Same-sex couples say, of course we understand the nobility and the sacredness of the marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.” At the same time, Kennedy was offended by the implication that gay parents who had adopted children were less well suited as parents because they weren’t biologically connected. “You had some premise that only opposite-sex couples can have a bonding with the child. That was very interesting, but it’s just a wrong premise.”
The four liberal justices also joined in the grilling of the Michigan attorney.
When the oral arguments came to a conclusion, Evan and I quickly exited the courtroom and walked outside, into the sea of our supporters, who were cheering, chanting, and waving flags. I was feeling great. Kennedy hadn’t offered up a definitive signal on how he’d vote, but he’d sure sounded unsympathetic to our opponents’ limited view of the purpose of marriage. The vapidity of that argument seemed to confirm that we were headed toward a win.
That afternoon, at a reception hosted by Lambda Legal, I got the chance to have a private moment with Mary Bonauto, away from all of the others who wanted to thank her. She and I looked one another in the eyes momentarily, and I could feel the emotion brewing inside of me. I could tell by the way she looked at me that she was feeling it too. We embraced, then I congratulated and thanked her. We’d been fighting on different fronts in the same battle for so many years—and now it seemed we were close to victory.
At 9:30 a.m. on Friday, June 26—two months after oral arguments—I was in our New York City office sitting around a large conference table with fifteen staff members, including Evan Wolfson. The walls were adorned with framed front pages of newspapers from the day after victory in each of the first twenty-five marriage states, with another twelve lining the hallway. Nearly everyone’s laptop was open, and most of us were typing nervously, finalizing graphics and tweets for social media, organizing press lists, and making other final preparations for a possible decision. A box of Dunkin’ Donuts, courtesy of Evan, sat in the middle of the table. The large-screen television at one end of the conference room was streaming SCOTUSblog, the best source for up-to-the-minute information on court decisions.
There were only a handful of decisions left for the court to announce that term, so it seemed likely the final decisions would come either on this day or the following Monday. This day was the two-year anniversary of the Windsor decision and the twelfth anniversary of Lawrence v. Texas, the two most important gay rights decisions by the Supreme Court, both written by Justice Kennedy. If Kennedy were writing for the history books, it made sense that today would be the day.
I’d woken up that morning thinking about two young people. One was a high-school junior, the first cousin of my two nieces, Madeline and Zoe, ages fifteen and twelve, both amazing allies. One of them had recently shown me their cousin’s prom picture, with pride. His date had been another boy who looked to be the same age. They were sitting on a swing together, their arms around one another, both wearing black tuxedos with white boutonnieres, looking happy, adorable, and carefree. The other young person on my mind was the son of close friends, a teenager who had just come out of the closet. I’d seen his mother the night before, and she told me how proud she was of him for telling his friends and family members. The notion that gay kids in their teens, along with future generations of LGBT young people, might grow up in a world where the most important social and cultural institution— marriage—treated them, their relationships, and their love as worthy of dignity and respect was profoundly moving to me.
As we waited for news from the court, I showed some of my colleagues the prom photo that my niece had shown me on Facebook and told them that these teens embodied what I was fighting for.
When the clock hit 10:00 a.m., the room grew completely silent. I was jittery as I read SCOTUSblog aloud for the entire room.
10:01 Here’s Lyle with the first opinion.
That meant that Lyle Denniston, the octogenarian Supreme Court reporter, had a copy of the first opinion they were releasing that day.
“Holy shit,” I said. Here it comes.
About two seconds later, Evan, who was sitting to my left and watching his Twitter feed, said quietly, “We won.”
“How do you know?” one of our young staffers asked excitedly. “Chris Geidner,” Evan replied, referring to BuzzFeed’s legal editor. His voice cracking, Evan read the tweet aloud: “The Supreme Court ends same-sex marriage bans nationwide.”
I belted out a loud woohoo and joined my colleagues in cheering, applauding, and hugging.
“Well, that only took thirty-two years,” Evan said, to lots of laughs. Then he said, “Oh my God,” twice in a row. It was clearly just beginning to sink in.
I just kept letting out hoots and hollers, clapping and asking, to no one in particular, “Can you believe it?”
I popped open two bottles of champagne and Evan gave a toast.
“We were the campaign working to win marriage nationwide,” he said. “Now here’s to the campaign that won marriage nationwide.”
Lots more applause, cheers, and hugs.
In Washington, DC, Mary Bonauto was seated in the Supreme Court, waiting for the decision to be announced, just as she had been on three prior decision days since June 15. She’d grown accustomed to taking the 5:50 a.m. flight to Washington from her home in Portland, Maine, getting to the court by 8:00 a.m., then waiting for decisions to be announced at 10:00—only to turn around and go back to Maine each time. This week, she’d come down on Wednesday, preparing to wait until the decision was announced.
Sitting in the majestic courtroom that morning, she noticed a water glass in front of Justice Kennedy’s seat. Did that mean today was the day? After the justices came out, Chief Justice Roberts announced that Obergefell v. Hodges, the marriage case, was up first. The room went completely silent as Justice Kennedy began reading a condensed version of his opinion from the bench. Ever cautious, Mary didn’t presume victory until Kennedy began talking about the changes in marriage over the millennia. But as she listened intently to Kennedy’s words, she began to feel a deep sense of relief. The courtroom was packed with plaintiffs, attorneys, and other onlookers. She could hear sniffles and, in at least one case, sobbing.
When Mary saw that, for the first time in his decade as chief justice, John Roberts would read a summary of his dissent from the bench, she braced herself. Roberts compared Kennedy’s majority opinion to the infamous 1905 Lochner v. New York decision, which relied on the us Constitution to strike down worker-safety laws. To Mary, the reference couldn’t be clearer—he was accusing the majority of inventing a right that didn’t exist. As ecstatic as Mary was about the win, this was painful to hear. (In his written dissent, Roberts also compared the court’s ruling to the infamous Dred Scott decision, which asserted that slaveholding was a property right protected by the Constitution.)
After the justices finished their readings, she strode out of the courtroom to the scrum of journalists and cameras waiting outside. Attorneys and plaintiffs stood behind her.
“Today was a momentous decision,” Mary said, full of excitement, a smile on her face. “It’s going to bring joy to millions of families, gay and straight, around this country,” she continued.
But she also wanted to make it clear that this decision was all about the Constitution. “The court stood by a principle in this nation that we do not tolerate laws that disadvantage people because of who they are.”
In New York, Evan got a call of congratulations from Vice President Joe Biden, whom Evan had worked for when he was a college student. Biden joked about how proud he was of his former intern, then thanked Evan profusely for his vision, his courage, and his willingness to fight so hard for so long.
“You changed the country and we owe you,” Biden said. “This makes a big difference because getting this country where we need to be on civil rights will help us lead globally.”
“I appreciate that,” Evan replied, “and I completely agree with you.” Then he thanked the vice president for the administration’s leadership. “We wouldn’t be here today without your support and the president’s support.”
Evan shut the door to his office and began reading the 5–4 opinion, authored by Justice Kennedy. Tears rolled down his cheeks. It was almost surreal to read a Supreme Court opinion that contained some of the themes he’d presented in his Harvard Law School thesis thirty-two years earlier. These were ideas that so many people had laughed at or ignored—because they sounded so improbable. Like his thesis, the opinion spoke of the “transcendent importance of marriage,” how excluding gay people from marriage exacts a deep and penetrating harm, and how the Constitution’s guarantee of liberty and equality meant that participation in such a fundamentally important institution couldn’t be denied to same-sex couples.
Evan also realized that an enormous weight had been lifted from his shoulders. For decades, he’d promised that the attainment of marriage for gay couples nationwide was possible if people did the requisite work to bring it about. At so many difficult points along the way—following the passage of DOMA and the numerous state constitutional amendments, during the threat of a federal constitutional amendment, after John Kerry’s loss in the presidential election and the resulting blame on the LGBT community—many leaders had wanted to slow down or even stop, and many pundits had called the pursuit either impossible or counterproductive.
All during that time, Evan had been the unflappable, optimistic driving force who argued, persuaded, cajoled, and convinced our community—along with its allied straight leaders, donors, the media, and so many others—that winning marriage was both worth it and could be done. At this moment, he could feel the armor he’d worn as the marriage warrior for so many years falling away. Carrying this burden had taken its toll on him, and now he began to feel a deep sense of relief.
Sitting next door in my office, I felt like I was floating. I too experienced a tremendous sense of relief and unburdening. Ever since we’d won marriage in a Massachusetts court in 2003, I’d had an overwhelming feeling of responsibility. I knew how crucial momentum could be. After that victory, we had to defeat efforts to take it away while continuing to put more wins on the board. That burden had taken a toll on me as well. My neck became so contorted from stress that I suffered permanent nerve damage in the thumb and index finger on my left hand.
After Proposition 8 passed in California, I was driven to relocate there—to build a ballot campaign that would win marriage back. When it became clear that Prop 8 would be handled in court, and Evan described his vision of a campaign operation to fast-track our gains, I made the decision to move to New York and run it. Each time we won a state, my mind would quickly shift to the next battleground—to all the work that wasn’t yet far enough along.
But on that day in June, there were suddenly no more states to worry about, no more momentum that needed to be created. It felt amazing.
At that moment, I had a clearer vision of what had been motivating me all this time. It was about much more than marriage. It had to do with my own experience as a gay man, about coming to terms with my sexuality over the past four decades. When I was a child and first began to recognize that I was different, I was sure that there was something terribly wrong with me. Every message I got from the outside world was that homosexuality was a horrible defect, a secret I could never share with anybody else. When I entered my teens, in the 1980s, it also became something that could kill me. And so I stayed firmly in the closet for many years.
On the day we won marriage equality throughout the nation, however, I realized what a powerfully different message young people who were discovering their sexuality would now receive. The Supreme Court decision told the kids of today and the future—as well as the eight-year-old living inside of me—that society accepts and loves you just as you are. That was the transformative power of equality in marriage. For our government and our society to say that same-sex couples could marry sent an unmistakable message that the love of LGBT people was perfect just as it was. I could even imagine that, someday, there might no longer be a closet. Young people would speak about their sexuality once it became apparent to them, free of shame.
That felt really, really great.
That evening, I spoke at a massive rally outside the Stonewall Inn in Greenwich Village. Thousands of people were gathered, many holding signs. The atmosphere was electric.
“We did it!” I announced, to great cheers.
“This was the win of a movement,” I continued. “Everyone who has had a conversation with a family member or friend about why marriage matters, who has met with a lawmaker, who has volunteered, who has donated—this win is because of you.”
I acknowledged that there was still plenty of work to do to advance the cause of LGBT equality, but declared that, “Tonight we get to celebrate. Our work together over these many years has made America better—for LGBT people and straight people alike.”
“Let freedom ring!” I concluded.
In rereading the decision, what became most powerful for me was its focus on the crucial role of social movements in securing constitutional protections. “The nature of injustice,” Kennedy wrote, “is that we may not always see it in our own times.” Thankfully, the drafters of the Fourteenth Amendment “entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
And how do new groups of people publicize injustice and make claims for their fundamental liberties? “Through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” In other words, through social movements.
In several pages, Kennedy documents the evolution of society’s treatment of LGBT people. In the first half of the twentieth century, same-sex intimacy was “condemned as immoral” and criminalized. “Gays and lesbians,” he continued, “were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate.” The consequence was the closet. As Kennedy put it, “a truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”
During the post-Stonewall era, as people began coming out of the closet, agitating for equal treatment, and living more openly, our community was able to make “substantial cultural and political developments,” which in turn led to “same-sex couples [beginning] to lead more open and public lives and to establish families.”
Kennedy countered the notion that marriage for gay couples was new and untested, pointing directly to the freedom-to-marry movement. He spoke of the “deliberation” that’s gone into reaching this “enhanced understanding of the issue,” such as “referenda, legislative debates, and grassroots campaigns,” along with “extensive litigation in state and federal courts” resulting in judicial opinions “that reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades.” He also spoke of the amicus briefs supported by “many of the central institutions in American life,” including large and small businesses, religious institutions, the military, state and local governments, and others.
So it was the movement for marriage that Kennedy credited with being responsible for making manifestly clear that what “may long have seemed natural and just”—“the limitation of marriage to opposite-sex couples”—is in fact “inconsistent with the central meaning of the fundamental right to marry.”
And that led naturally to the opinion’s conclusion:
It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The main reason I wrote this book was to show how significant social change can happen in America. It is crucial to recognize that there are no shortcuts: such change requires hard and taxing work, over a long period of time. Also required are a powerful vision and a strategic roadmap for bringing change about, but without hard work the task is impossible. It’s not enough to assert that what you want is right. If it were, then Jack Baker and Michael McConnell—who sued the state of Minnesota for the right to marry in 1970—would have prevailed. But their suit lost in the Minnesota Supreme Court, in a decision that quoted from Genesis, and then was summarily dismissed by the us Supreme Court.
In an interview earlier in 2015, Justice Ruth Bader Ginsburg had explained what it actually took to win. “There hasn’t been any major change,” she said, “in which there wasn’t a groundswell among the people before the Supreme Court put its stamp of approval on the inclusion in the equality concept of people who were once left out.”
President Obama’s words immediately after the decision was announced reflect the same point, reminding me that he is truly a community organizer at heart. Although he acknowledged that our win was the direct result of a Supreme Court ruling, he noted that “it is a consequence of the countless small acts of courage of millions of people across decades who stood up, who came out, talked to parents, parents who loved their children no matter what, folks who were willing to endure bullying and taunts, and stayed strong, and came to believe in themselves and who they were. And slowly made an entire country realize that love is love.”
The amount of hard work required to bring about real social change might be frustrating at times, but there are at least three rewards that make such effort so tremendously worthwhile.
First, as President Obama said in those same remarks, “progress on this journey often comes in small increments,” but “sometimes there are days like this, when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.” Momentum begets momentum, and victories come much more quickly at the end of the larger battle, when that momentum has reached a truly powerful level.
We certainly saw that effect in the marriage movement: although our first victory came in a Hawaii court in the mid-1990s, no state had marriage until our victory in Massachusetts a decade later, and the next victory did not come until California—another four and a half years later. (And that win was subsequently taken away at the ballot.) The New York legislative win, in 2011, gave the movement our sixth state. Then, with public support reaching a majority nationwide, things started moving more quickly. By the end of 2012, we had nine states; by the end of 2013, we had seventeen; and by the end of 2014, we had thirty-five.
The second reward is the deep satisfaction of engaging in the struggle, knowing that you’re part of something bigger than yourself, that you’re helping move the country in some small way toward a better, freer, more just society. It’s impossible to know in advance when the key turning points will come, but the act of working to make progress every day is for me exceedingly satisfying.
So is the act of enlisting others in the work and helping them to find their voices—from couples who discovered the strength to share their lives with lawmakers (and were able to see how their own stories were powerful enough to make a real difference), to business leaders who experienced the satisfaction of lending their power to something so meaningful, to elected officials of both parties who worked through their discomfort, voted our way, then became spokespeople for the cause because they wanted to help bring the country closer to its true values.
For me, it’s been especially gratifying to recruit young organizers and campaign staffers into the ranks, something I did along with my partner and field guru Amy Mello for the past eleven years. I’m so proud of having helped hundreds of young organizers and operatives get started in this work, and of seeing so many of them find their voices and blossom. Most went to work in a state marriage campaign, developing strength and courage by sharing their own stories, enlisting others, honing their skills as effective advocates, becoming part of a team. The work they did was challenging physically, emotionally, and financially. I’ve had organizers who were bitten by dogs, involved in car accidents, chased by cops, and pursued on the street by cursing homophobes. But I cannot think of anyone who’s been a part of this work who has regretted having done it.
The third reward is the recognition that, even with difficulties and impediments, America remains a country where profound change can be made by “we the people.” The success of the marriage movement should give hope to anyone who doubts that. It certainly gives me the deep and abiding hope that we can create a more perfect union, with liberty and justice—for all!
Right after the victory, I created a top-ten list of lessons learned that I think are particularly applicable to other social movements.
1. Convey a bold, inspirational vision. Identify what you really want to accomplish and communicate that vision early and often. The aspirational possibility of being able to marry spurred hundreds of thousands of regular people to become champions— something a watered-down goal like civil union wouldn’t have accomplished. While half-measures along the way are part and parcel of our political system, accepting increments must not preclude reaching the true goal. Remind people and politicians why it matters, and don’t settle in the end for anything less.
2. Have an overarching strategy. A strategy maintains focus, provides structure, and is a crucial source of support when the going gets tough. When Evan Wolfson embarked on winning marriage nationwide, he envisioned a pathway to victory that included a national ruling by the us Supreme Court. To get the court to act, however, he knew—based on the lessons of history— that we needed to rack up victories in a critical mass of states and grow public support beyond a majority. That big-picture strategy for marriage was called the “Roadmap to Victory,” and it provided a simple (but not easy!) approach that served us well when the going got tough and others questioned whether we were on the right path.
3. Focus on values and emotions. With a cause that is as fundamentally important to so many people as marriage, it is essential to tap into fundamental values when making your case. We showed straight America that same-sex couples want to marry out of profound love and commitment—which are the same reasons they want to! We thus helped them to see that supporting marriage for same-sex couples aligns with their own deep-seated values: respect for the golden rule—treating others the way you’d want to be treated—and for freedom—the right to live the way you want as long as it doesn’t hurt anyone else. Tapping into those values was a powerful antidote to the fear-mongering that our opponents employed (that the freedom to marry would harm children, for instance). One mistake that some of our campaigns made along the way was in focusing on messages that polled well but didn’t have emotional resonance.
4. Meet people where they are. To create lasting change in America, it’s crucial to make the case to people who are conflicted about your cause and give them time to really think it through. On marriage, we knew that nearly everyone had grown up in a society where they were taught that marriage was between a man and a woman, and in a faith tradition where they were taught that homosexuality was wrong. Many good people were conflicted, and we were asking them to take a journey that challenged some of their deepest understandings about marriage, family, and religion. That required engaging with their questions, leaving no question unanswered, and tackling their concerns head-on. To get people to yes, we had to encourage them to open their minds and hearts, to listen, question, and reconsider. That meant starting early, staying with the process, and making the case in multiple ways. A shift like that is much less likely to happen if you write someone off or call someone who isn’t with you yet a bigot or bad person.
5. Find the right messengers. The person who delivers the message—and how it is delivered—matter as much as the message itself. The target audience—in this example, conflicted Americans—must identify with and trust the messenger. It was crucial that same-sex couples make their case in person to family members, neighbors, and friends. Over the airwaves, however, it was parents who were most effective. They could speak to their own struggles with accepting a child’s sexuality, about their journey to overcome that struggle, and ultimately about wanting their gay kid to have all that they’ve had, including the right to marry. Straight people could identify and empathize with that story. Unexpected champions—such as Republicans, first responders, service members, and clergy—also were especially effective in explaining and modeling how their own deeply held values of freedom, faith, and service to country fell squarely in line with the freedom to marry.
6. Build state campaigns designed to win. Winning at the state level requires an experienced manager running a professional campaign—with field organizers, communications professionals, and lobbyists—along with a dedicated board helping to raise sufficient resources to carry out the plan. Each campaign must be designed to meet a specific challenge. For example, when we needed to fight against repeal of a freedom-to-marry law in New Hampshire, where the legislature was 80 percent Republican, we built a campaign heavy on GOP operatives and business leaders.
7. Invest heavily in local organizing. Inspiring and mobilizing supporters—then enlisting them to persuade other voters and elected officials—takes a robust organizing campaign. On challenging issues, advocates too often think they can convince a legislature simply by using top-notch lobbyists, or can win at the ballot box merely by deploying good television ads. That’s simply not the case. The most effective way to persuade lawmakers and voters is to let them hear from local people—from ordinary citizens to influential leaders—living in their own communities. On marriage, it was especially crucial to show that we were talking about same-sex couples and families who are active participants in their own communities, not “those people out there in the big city.”
8. Accept this reality: politicians care about re-election above almost everything else. The most important priority for the vast majority of elected officials is continuing to be an elected official. That means that if elected officials think they’re going to lose their seats by supporting your cause, you’re going to lose first. So you need to be relentless about engaging electorally. First and foremost, that means helping to ensure that those who vote with you win re-election. In the first marriage state of Massachusetts, we re-elected every incumbent who voted our way—195 out of 195 in both 2004 and 2006—in spite of concerted efforts by Governor Mitt Romney and other social conservatives to defeat some of them. And there’s simply no better way to show lawmakers you’re serious than by defeating at least a small number who vote against you. That means figuring out who is vulnerable, finding quality candidates to run against them, and using tried-and-true campaign techniques to defeat them. Fight Back New York, a PAC that marriage-equality advocates set up in 2010, did just that. It took out three incumbents who voted against us on marriage and completely changed the political calculus in New York State.
9. Be serious about reaching across the aisle. In today’s terribly divided political climate, it’s extremely helpful—and in many cases essential—for the cause to be bipartisan. On issues that began as liberal or progressive causes, it’s especially important to have Republican voices making the case. Doing so effectively means years of dedicated and serious work, demonstrating to sympathetic Republicans that you’re serious about enlisting them, sensitive to their political concerns, and committed to helping them in a way that serves both your needs and theirs. When trying to shift the political center of gravity on marriage, having Rob Portman, Laura Bush, and Dick Cheney speak out was worth its weight in gold.
10. Build momentum every day. A cause is either moving forward or backward. At the heart of my job as the national campaign director for Freedom to Marry was figuring out how to grow momentum every single day. That meant being consistently creative and nimble in identifying opportunities to move the ball forward, and in building a narrative that our campaign was succeeding. So whether it’s enlisting a Fortune 500 company or a new Republican member of Congress, amplifying the results of a public-opinion poll that demonstrates growth in support, focusing attention on a winning streak in court, or going on television with a new ad campaign, connecting real accomplishments to a compelling and cohesive narrative demonstrates that you’re continuing to move toward your goals. An especially crucial element of building momentum is conveying optimism—even in the face of defeat. You have to remind your base and opinion leaders that you can do this by highlighting the wins, large and small, that the campaign has already secured, while continuing to point toward the end result that you seek.