Evan Wolfson received a B on the law school paper that helped change the world.
It was 1983 and Wolfson, submitting the paper required of all third-year students at Harvard Law School, had chosen a topic — constitutional protection for same-sex marriage — seemingly so far-fetched that some of the distinguished scholars he had asked to serve as faculty advisers declined.
“The more prominent, more liberal ones who one would have thought would have been most supportive were not,” Wolfson recalled in an interview. “It’s not that they were against it — I think they didn’t see it as that important or that likely to happen and in some cases a little bit trivial.”
A few gay couples had tried to make the argument in the 1970s, following the Supreme Court’s declaration that laws prohibiting racial intermarriage were unconstitutional, and were summarily laughed out of court.
At the time, the nascent legal movement on gay rights was focused more on combating anti-sodomy laws, overturning policies that excluded gays from being allowed to enter the country, dealing with issues of workplace discrimination. Some gay rights advocates didn’t see the point of pressing for inclusion in a traditional, patriarchal system. For others, marriage seemed a nice notion but a foolish priority, given the hostile landscape of existing injustice.
Wolfson saw it differently. “You can’t say you’re for equality but acquiesce in exclusion from the central social and legal institution of this and every other society,” he said. “What I felt was we needed to transform the movement from ‘we want to be let alone’ to ‘we want to be let in.’ ”
Wolfson’s quest for the freedom to marry — he used the term same-sex marriage in his paper, but now bristles at its connotation of difference from “regular marriage” — has been transformed from quixotic to attainable.
With the Supreme Court ruling striking down the Defense of Marriage Act, the federal government is out of the business of discriminating against couples on the basis of their sexual orientation.
Still, for the time being at least, America remains a patchwork nation when it comes to marriage rights. It will require another, major step for the court, one that Wolfson believes is inevitable, to declare that marrying the person you love, regardless of sexual orientation, is a fundamental constitutional right.
Wolfson’s story demonstrates the force of idea combined with execution. It demonstrates how society can be reshaped by the power of a seemingly radical idea matched with — indeed, married to — a carefully calculated, inch-by-inch strategy for putting it into practice.
The movement toward marriage equality for gays and lesbians in the United States was inexorable, and certainly other advocates have helped drive the debate. But as much as any individual, Wolfson served to shape and accelerate the still-emerging reality of same-sex marriage. (Disclosure: Wolfson was a classmate in college and law school.)
Wolfson began practicing law as a prosecutor, first for Brooklyn District Attorney Elizabeth Holtzman, then for Iran-contra prosecutor Lawrence Walsh. But he moonlighted on gay rights issues and eventually joined Lambda Legal Defense and Education Fund, where he argued, and lost, the Supreme Court case involving the Boy Scouts’ right to exclude gay scoutmasters.
But marriage remained his priority, if not one universally shared by those gay rights advocates who feared pushing too far too fast. Ten years ago, when Wolfson founded Freedom to Marry, not a single state allowed same-sex couples to marry. Today, 13 states and the District of Columbia recognize the right to marry.
In 2011, after New York joined those ranks, Wolfson married his partner of 10 years, Cheng He, a molecular biologist and management consultant. Just before our interview, Wolfson was consulting with an immigration lawyer about his husband, a Chinese-born Canadian citizen eligible for a green card in the wake of the DOMA ruling.
Still, his work is far from done. For starters, 29 states have constitutional amendments banning same-sex marriage. Only a Supreme Court ruling can trump those.
“There’s no question where it’s going. The only question is how soon we can bring it home, and I believe it’s a matter of years, not decades,” Wolfson said. “At every stage of this campaign we were told, ‘You can’t win in court.’ We were told, ‘You can’t win in the legislatures.’ ‘You can’t win Republicans.’ ‘You can’t win beyond the coasts.’ ‘You can’t win at the ballot box.’ We’ve overcome every one of those. We will make this happen.”
It may be time to rethink that B.