From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in Slate on April 22nd.
One fall day in 1990, Ninia Baehr found herself with an ear infection and no health insurance. When the pain became unbearable, she and her partner, Genora Dancel, called Bill Woods, a lawyer at a Honolulu gay and lesbian community center, to see if there were any options for domestic-partner insurance benefits. Woods said no, but as it happened he’d been looking for couples to challenge the Hawaii law barring gay couples from getting married. He asked Baehr and Dancel if they’d join. Dancel, who wasn’t out to her family, was hesitant, and thought hard about it. “I said to myself, ‘This is what my life has led up to,’ ” she recalled. “I’m tired of being treated differently, and I have as much right as anyone else to get married.” The next morning, Baehr and Dancel, along with two other couples, applied for a marriage license from the Hawaii Health Department. They were denied. So they decided to sue. A revolution had begun.
If you get hold of Forcing the Spring, a much-touted new book out today, you could be forgiven for thinking that revolution began 15 years later, in 2008. And that the success of gay marriage—it is now allowed in 17 states and the District of Columbia, supported by a solid majority of Americans, and poised to be legal nationwide in a matter of years—was not the product of intrepid gay activists who bravely came out, demanded dignity, and slowly but indefatigably brought the world along with them. Rather, it came about due to a tiny group of gay and straight strategists and lawyers who started the movement nearly from scratch six short years ago—against the wishes of hapless gay leaders who had run their movement into the ground.
“This is how a revolution begins,” commences Jo Becker, a Pulitzer Prize-winning New York Times reporter, in her new book, explaining that the gay marriage movement had “languished in obscurity” until 2008, when a young political consultant named Chad Griffin grew impatient and deployed his “unique ability” to leverage his Hollywood connections to “rebrand a cause.” It was a cause, argues Becker, that had to be rescued from established gay advocates who had spent 40 years doing virtually nothing worth mentioning in a major history of the marriage-equality battle. The book, excerpted in Sunday’s New York Times Magazine, focuses on Ted Olson and, to a lesser extent, David Boies, two straight lawyers recruited by Griffin and funded, initially, by Hollywood stars to challenge California’s Proposition 8, the 2008 ballot initiative that revoked gay marriage in that state. Olson and Boies were on opposite sides of the 2000 Supreme Court battle that landed George W. Bush in the White House, and their teaming up to fight for gay marriage was a brilliant coup by Griffin. Olson’s conservative bona fides and eloquence in embracing the cause of gay marriage was enormously valuable in growing support for the cause just as it was reaching a tipping point.
Yet that’s a far cry from suggesting that this small, well-heeled group was responsible for bringing the nation gay marriage, or for a major leap in public approval, something that was in the works long before these players arrived on the scene, and which was jolted forward by widespread national anger against Prop 8, not just the anger of Chad Griffin and Ted Olson.
The actual revolution that led to gay marriage began, of course, not in a spacious San Francisco hotel suite in 2008 but on the streets of New York in 1969, when LGBTQ activists got tired of perpetual abuse and chose to fight a police raid at the Stonewall Inn. This remarkable uprising, which built on earlier efforts that can be traced back to the first gay rights organization in Chicago in 1924, led to gay marriage lawsuits in the early 1970s that were laughed out of court but were followed by the victorious 1993 Hawaii ruling that launched the gay marriage revolution.
And let’s be clear how we’re using revolution. This revolution began within the LGBTQ movement, which had been split over thoughtful, principled differences about the value and role of marriage in the social structure and, specifically, for the LGBTQ population. It was not a split between appeasers of the forces of inequality and heroic young proponents of change who were the first to consider that barring gays from getting married was an injustice that needed to end right quick. And it was undertaken not by straight, white-shoe superlawyers, but by LGBTQ activists, passionate and at times brilliantly strategic, who put themselves on the line when most of the world found them and their claims detestable.
How any of this can be left out of a book whose subtitle is Inside the Fight for Marriage Equality, and whose marketing material breathlessly broadcasts the author’s “free rein in the legal and political war rooms where the strategy of marriage equality was plotted” is a major mystery that some intrepid reporter may one day unravel. The book relegates Edie Windsor and Roberta Kaplan, the plaintiff and litigator who actually brought gay marriage to the Supreme Court and won, to the back of the bus, bringing them up only to hand that victory to Olson and Boies, who joined the cause at the last minute.
Indeed, that cause has taken 40 years (and counting). And Becker’s book doesn’t just erase the contributions of the main characters of this struggle; it casts them as profound obstructionists, portraying one of the earliest and most important leaders of the marriage movement, Evan Wolfson, as a seething, grumbling crank who sought slow change for its own sake and who gratuitously refused to make room for new collaborators. Nothing could be further from the truth.
Jo Becker was granted extraordinary access to the Griffin-Olson team’s effort to overturn Prop 8 and to use that victory to get an immediate Supreme Court ruling allowing gay marriage in all 50 states. It was a high-risk strategy—at the time, only two states had marriage equality, making it very unlikely the Supremes would issue a decision forcing it on the remaining 48—that ultimately failed (though, to be sure, it did much good in amplifying the national conversation about gay equality). Yet Becker’s access clearly blinded her to the need to conduct basic research outside of the star-studded cadre of strategists and lawyers whose heroic tale she dutifully and uncritically tells in her book.
Becker should have done her homework, but she didn’t. So below I offer a preliminary and partial corrective, a highly abridged history of some of the indispensable developments that Jo Becker’s story unconscionably left out, events that led to what is surely now an unstoppable trajectory toward marriage equality in all 50 states. It is based on both publicly available sources and extensive interviews I have conducted over the last five years for various articles I wrote while covering the marriage-equality battle, including with most of the key players that Becker does and does not cover.
As the Honolulu lawyer Bill Woods prepared for his lawsuit, he reached out to the ACLU and Lambda Legal, the nation’s pre-eminent gay legal advocacy group, for help. The ACLU declined, in part because its local office found little enthusiasm among community members for gay marriage. So Ninia Baehr reached out to Evan Wolfson, a gay legal strategist she’d met when living in New York. Wolfson worked at Lambda, and was known as a fierce advocate of marriage equality. Even before he wrote a 1983 Harvard Law School paper, “Same-Sex Marriage and Morality: The Human Rights Vision of the Constitution,” Wolfson had viewed the freedom to marry as a proper goal of the larger gay rights movement, and he said so at every opportunity.
Wolfson quickly came to see that marriage equality was not only a noble end in itself but the perfect vehicle to help the nation truly grasp the equal dignity of gay people. In this view, he was joined by Andrew Sullivan, the prolific gay author who, in 1989, wrote a high-profile New Republic cover story making a conservative case for same-sex marriage. Though the liberal Wolfson and the conservative Sullivan had very different politics, the two became friendly co-conspirators as they crisscrossed the country arguing for a very simple idea—equality—in the face of derision, deafness, and worse.
Resistance and neglect came not only from the straight world—in its 1986 Bowers decision upholding sodomy bans, the Supreme Court had dismissed the very notion of a gay claim to equal dignity as “facetious”—but from LGBTQ people, many of whom did not view marriage as a worthy priority. But this was not because gay people didn’t feel passionately about their own equality, as Becker, through her protagonists, suggests. It was because many other concerns preoccupied them, particularly the AIDS epidemic, which decimated entire communities and put the need for relationship protections front and center. Many lesbians, although often intimately involved as caretakers of HIV-positive men, faced other pressing concerns when they came out of straight marriages and had to fight for custody of their children. Many viewed marriage as the source of their woes, not the solution. In short, many gay and lesbian advocates found marriage to be totally at odds with their lifelong fight for liberation from social arrangements they considered stifling, patriarchal, and exclusionary.
Indeed, marriage was one of the most contentious issues that gay lawyers debated when they convened at what became a gay legal “roundtable” in the 1980s—both whether and how to achieve it. “One bad loss can mean wiping out a generation of rights,” said Paula Ettelbrick, who had led Lambda Legal, referencing the Supreme Court’s 1986 Bowers decision upholding sodomy bans. The lawyers accepted a heavy sense of duty to the future. “We didn’t want to screw the whole thing up for generations to come,” said Ettelbrick, “and took very seriously our responsibilities as lawyers to be prudent and thoughtful when messing with the constitutional rights of millions.”
These pragmatic concerns, along with the alternate ideological vision many activists shared, meant the legal groups were not keen to embrace gay marriage as a top priority—though for highly principled reasons, not the ineptitude and lack of concern for equality that Becker’s book implies. To Wolfson’s regret, Lambda would not take up the Hawaii case.
So the plaintiffs turned to Dan Foley, a straight lawyer who had previously worked at the ACLU of Hawaii and who accepted Wolfson, with Lambda’s blessing, as a adviser on the case. Foley was eager to take the case, but he had little hope they would actually win. Nor did most others in the legal—or gay—communities. So nearly everyone was shocked when, on May 5, 1993, the Hawaii Supreme Court ruled that the state constitution, which prohibits gender-based discrimination, guarantees equal protection to same-sex couples wishing to get married.
Conservatives swung into action, planning legislation and constitutional amendments to ensure they would not have to recognize gay marriages performed in Hawaii. In 1996, the federal government passed the Defense of Marriage Act, which defined marriage as exclusively heterosexual and said no state had to recognize a gay marriage performed outside its borders. In 1998, before Hawaii could implement the freedom to marry, voters in the state chose to amend the constitution to bar same-sex marriage, rendering any further action by the courts moot. Hawaii had been a critical victory, though it had also led to backlash in the form of DOMA and numerous state marriage bans, another cautionary tale about the perils of litigating before the climate is ripe.
Mary Bonauto had joined Boston’s nonprofit Gay and Lesbian Advocates and Defenders in 1990, where she quickly became Evan Wolfson’s sister-in-arms. The two were among the most vocal proponents of marriage equality as a priority for the gay rights movement—cautious but determined. In the late 1990s, even as colleagues continued to balk, Bonauto geared up for battle. With Wolfson’s blessing, GLAD moved forward in Vermont, a state with several advantages over Hawaii, including a court with positive past rulings and a constitution that was hard to change. In December 1999, the Vermont Supreme Court ruled unanimously that those in gay unions were entitled to the same benefits and protections as married people. The court did not force the state to let gays and lesbians wed, but invited the legislature to create a separate institution, which became known as “civil unions.” It wasn’t marriage, but Vermont was the first state in the union to offer gays the same marital rights as straights, minus the all-important word itself.
The momentum of the Vermont decision was unstoppable. “Once Vermont was over, the pressure on us to file something in Massachusetts was intense,” said Bonauto. On April 11, 2001, days after the state’s first female governor, Republican Jane Swift, announced she would veto any gay marriage bill that hit her desk, GLAD sued the state of Massachusetts. In the meantime, the Supreme Court issued a major decision in June 2003 in the case of Lawrence v. Texas, brought by Lambda Legal. In a sweeping ruling, the court said the shrinking number of states that still had anti-sodomy laws on the books, now reduced from 24 to 13, revealed “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” It reversed its own ruling in Bowers from just 17 years earlier, clearly helped along by the fact that so many additional states had scrapped their own bans—further evidence that a state-by-state strategy is key to a national win at the Supreme Court.
On the heels of Lawrence, and citing the case repeatedly, Massachusetts became the first state court in America to strike down its gay marriage ban without leaving an easy recourse for reversal. Like Vermont, Massachusetts had a difficult constitution to amend, and gay groups had worked for years to build support for gay families to avoid the fate of Hawaii.
Backlash was immediate. That November, as Bush won re-election, voters in 11 states chose to amend their constitutions to ban gay marriage. Under the direction of Karl Rove and Ken Mehlman, who was then the closeted director of Bush’s re-election effort, the campaign had devised a strategy to draw conservative voters to the polls by putting anti-gay-marriage initiatives on the ballot in several key states. (Mehlman later came out and threw himself into the marriage equality battle. He is featured prominently as a hero of the cause in Becker’s account.)
The 2004 defeats devastated morale among gay rights advocates. As the 1993 Hawaii court victory had led to DOMA in 1996 (and to state marriage bans as well), the catastrophic losses in 2004 were, in part, a backlash to the pro-gay Massachusetts and Lawrence rulings, which mobilized anti-gay forces to write difficult-to-reverse bans into law. This historical reality—not some inexplicable timidity on the part of gay legal advocates—was more than enough to breed caution when considering yet more legal actions that could produce more long-term setbacks.
Yet while some movement leaders retrenched in the face of these setbacks, Wolfson and other movement actors were pushing ahead. And it’s here that Becker’s sloppy narrative runs into more trouble. Becker defines “the gay rights movement” as a monolith, a “constellation of established groups” committed to a plodding, incremental approach. It is true that the main LGBTQ legal minds took a brick-by-brick approach to winning marriage equality; they correctly reasoned that the best chance of winning it nationally was by reaching a critical mass of states and public approval before taking it to the Supreme Court. But this is hardly the “tranquilizing drug of gradualism” that Oscar-winning screenwriter Dustin Lance Black accused gay movement leaders of accepting at a 2009 speech that Griffin helped orchestrate. “The strategy of the past decade has failed,” Black declared after quoting Martin Luther King Jr. to a group of veteran civil rights activists, appearing to lay blame at their feet. “It is time for us to stop asking for crumbs and demand the real thing.”
Becker uses the episode to endorse the idea that the gay movement had failed because it was too timid, and that Black, Griffin, and Olson were poised to rescue it from obscurity. Yet if any single group in the “gay establishment” was counseling gradualism, it was the Human Rights Campaign, the world’s largest gay lobbying group, which ate up more than $40 million in gay money every year and, up to that point, had not a single major national legislative win to show for it. Becker might not know about HRC’s retrenchment from the marriage battle or the years of righteous anger directed at HRC’s failures by the rest of the LGBTQ community because she seems not to have done any real research outside her access chamber. And she wouldn’t likely have heard about it from Chad Griffin, because, on the strength of his high profile in the Prop 8 case, he became the group’s president in 2012. Again and again HRC had pulled back from the marriage-equality battle, with its leaders and spokespeople defending incrementalism, touting civil unions instead of marriage, and even reportedly pushing out one leader because she made marriage too high of a priority. Following the 2004 ballot losses, theNew York Times reported that HRC planned to “adopt a selective and incremental approach to winning rights rather than reaching for the gold ring of marriage right away.” Critics of HRC said it was “entirely characteristic” of the group “to believe that what is required is a sort of retrenchment and a return to a more moderate message.”
The point is not that incrementalism is necessarily a bad or cowardly strategy; it’s that what Becker paints as a contest between the entire gay rights “establishment” and a tiny sliver of outside-the-movement saviors was in fact a principled strategic debate within the gay rights movement across decades. And notably, HRC was on the side of gradualism that Griffin and Black lambasted and that Olson and Boies tried and failed to leapfrog. (This makes it amusing that Hilary Rosen, one of the HRC leaders who retrenched from marriage in favor of civil unions, is now doing public relations for HRC that includes e-blasting its 1.5 million members to tout Becker’s book and the heroic narrative it tells of Chad Griffin.)
It was frustration with the timidity of groups like HRC, which, like Becker, too often seemed to prize access over results, that drove a course correction in the gay rights movement, not the arrival of movement parvenus quoting Martin Luther King. Following the 2004 disappointments, the state-by-state work that advocates like Wolfson had been promoting took on greater appeal to other movement players. In 2003, Wolfson began Freedom to Marry, an umbrella organization designed to support groups across the country working for marriage equality. At the same time, dozens of small, state-based organizations began strategizing about how to secure equal rights on a state-by-state basis. As a final piece of the puzzle, and particularly after the 2004 ballot losses, major funders such as the Gill Foundation, began to direct grants in support of same-sex marriage into carefully selected states where wins seemed most viable.
As part of this work, they also began to direct money to state political races, in an effort founder Tim Gill pioneered to create pro-gay legislatures. Although nonpartisan in principle, they targeted states where throwing the legislature to Democratic control might make the difference in winning gay marriage legislatively, or defending it from a referendum once it was won. Having helped turn the Colorado state house Democratic in 2004 with hundreds of thousands of dollars of support, Tim Gill was sold on the idea that gay donors could “punish the wicked.”
This state-focused strategy worked in conjunction with gay marriage litigation and was instrumental starting in Iowa. Armed with confidence from the win in Massachusetts, and with knowledge that Iowa was being targeted for support by large gay donors, Lambda filed suit in the state in December 2005. On April 3, 2009, the ruling in Iowa created another earthquake in gay rights when it overturned the state’s gay marriage ban. On cue, opponents vowed to fight to amend the constitution. But the legislature was now controlled by Democrats friendly to the gay donors who had helped put them in power, and so the ruling survived.
As the first non-coastal state to allow gay marriage, Iowa was pivotal. A week after the Iowa decision, the Vermont legislature overrode the governor’s veto to allow same-sex marriage for the first time without a court order. Legislators were explicit about how one state built on the next. “There’s no question the fact that Massachusetts had marriage, and that Connecticut had court-ordered marriage, and then Iowa—definitely this leadership from the courts was tremendously important,” Vermont Gov. Peter Shumlin told me back when, as president of the state senate, he led the state’s legislature to pass gay marriage. And the vote in Vermont started more dominoes falling. Next came Maine, whose legislators were talking to those in Vermont. On May 6, 2009, Gov. John Baldacci signed a freedom to marry bill into law. (It was reversed by voters that November but was finally reinstated by voters in 2012, legalizing gay marriage there, as well as in Washington and Maryland, in an election that marked the first time popular ballot initiatives went for, instead of against, gay marriage.) On June 3, New Hampshire Gov. John Lynch signed a marriage-equality bill into law. In December, Washington D.C. followed suit.
And so the dominoes were falling, just as the gay legal groups had planned them to, when the Griffin-Olson effort burst onto the scene in 2009, charging ahead with its risky plan to secure a constitutional right to marriage in all 50 states. The plan failed, as the Supreme Court threw the case out for lack of standing, suggesting that the cautious view of the gay lawyers Becker derides was absolutely right: There weren’t enough justices ready to declare a constitutional right for gays to marry, as Olson had hoped. It was an entirely different case, the one brought by Edie Windsor challenging the Defense of Marriage Act, that won at the Supreme Court and has been cited most widely by federal judges knocking down gay marriage bans.
Facing intense criticism for her highly selective narrative, Becker told Politico that her book is “not meant to be a beginning-to-end-history of the movement” but is simply “about a particular group of people at an extraordinary moment in time.” This is a wholly predictable and unsatisfying response for an author whose website touts the book as “the definitive account of five remarkable years in American civil rights history” that encompasses “all aspects of this momentous struggle.” Which is it—a profile of a small group of participants or the definitive account of “all aspects” of the marriage equality battle?
By far the most egregious—and historically harmful—thing about Becker’s narrative is the total misunderstanding of what the actual strategy to win national marriage equality has been—and how it’s succeeding. The whole point of the incremental, state-by-state strategy is to secure marriage nationally through a Supreme Court win as soon as it’s achievable, while avoiding the catastrophic setbacks that history shows can occur if litigation goes forward before the climate is ripe for a win. The Olson playbook tried to leapfrog this timeline, and couldn’t, so the implication that his approach was the heroic one that saved the movement from itself is ludicrous.
In a Times Q&A, Becker writes that the gay establishment’s strategy before Olson blasted it apart “had not been to bring a federal lawsuit, but instead to fight this state by state” and that outsiders rightly changed course, “because the passage of Prop 8 had galvanized this small group of very connected people.” It was Griffin and Olson alone, she seems to think, who viewed Prop 8 as “an opportunity to take this from what had been a partisan legal debate to try to turn it into a civil rights conversation.” This is wretched history. The gay legal strategy was precisely to bring a federal lawsuit, but to do it at a time when it would succeed (after building up enough states), which the Prop 8 case did not. And it was the gay legal “establishment” that, decades ago, first understood the critical value of lawsuits in creating a national conversation to bring about gay equality.
But glibly dismissing the state-by-state strategy as an overly cautious failure allows Becker to cast her protagonists as heroes who swooped in and set a failing movement right. She suggests that some brief conversations Griffin had with the president and vice president were single-handedly responsible for their decision to support gay marriage. Never mind the prior and simultaneous work of numerous other actors whose patience and tenacity successfully played the long game—including the public and private pressure of numerous activists and bloggers, some of whom had far less access to power.
Ultimately, Becker implies that the righteous impatience—and even impetuousness—of Griffin and Olson were responsible for driving a “tectonic shift on the issue of marriage equality” and “bring[ing] marriage equality to the nation.” Note: This hasn’t happened yet—fewer than half the states have marriage equality—so this suggestion is absurd on its face. Becker simply assumes that her protagonists caused, rather than reflected, a shift already well under way—in 2011, several polls showed that, for the first time, a majority of Americans favored same-sex marriage, but the trend had been moving more or less steadily upward since the 1990s. In reality, the Griffin-Olson team joined the cause at the 10-yard line, did terrific work in moving the national conversation forward, and tried a risky strategy to win nationwide marriage equality at the Supreme Court—which failed. They added (back) exactly one state, California, furthering the successful state-by-state strategy that was already winning because of the lifelong work of Evan Wolfson, Mary Bonauto, and countless other gay advocates. That work will be responsible for national marriage equality when it finally happens.