In the late 1980s, a friend of mine got a call at work that, while on a business trip, his male partner had been shot and rushed to the emergency room. My friend then spent four hours on the phone with the hospital, trying desperately to persuade them to tell him — a legal stranger, whose relationship he did not dare explain — whether his beloved was dead or alive. Shocked, my own partner and I quickly bought a do-it-yourself legal book, typed up health-care proxies, went out to get them notarized — and endured the notary’s and witness’s sneers and stares as they realized that we were queer.
All of which is to illustrate how unimaginable, back then, it was to think about being able to marry. In 1990, lesbians and gay men were presumptive felons in 25 states and the District of Columbia. If newspapers mentioned us at all, they called us “homosexuals.” Men were dying of AIDS and being told they deserved it. The religious right was running horrifying ballot measures against us in state after state. Hundreds of thousands of us blurred our pronouns when talking to co-workers and ducked family questions about when we were going to get married (“When hell freezes over, Aunt Jean. Can I bring my roommate to Thanksgiving again this year?”).
And yet by 2015, large swaths of Americans, gay and straight alike, were upset that same-sex couples weren’t already free to marry. What was taking so long, went the refrain, on a matter of simple and obvious justice?
What the heck happened in just 25 years?
A lot happened. Last year, in “The Gay Revolution,” Lillian Faderman gave us a broad and rollicking history of what we now call the LGBT (lesbian, gay, bisexual and transgender) movement, revealing a vast and roiling landscape of those who challenged our exclusion from full citizenship and changed the world.
But even the richest history of social transformation can’t show everything. Now researcher Nathaniel Frank fills in an indispensable part of the story. “Awakening” reports meticulously on the gay and lesbian lawyers who envisioned and ran the fight for marriage and the funders who helped put the effort over the finish line, carefully recounting the legal arguments and opinions all along the way. This book doesn’t paint the entire marriage fight; ground organizing and legislative battles get short shrift. But Frank is correct: The push for marriage equality was primarily conceived, led, managed and won by the movement’s legal advocates, whose story he tells. As he puts it, marriage equality arrived because of the “incremental strategy that LGBTQ legal advocates had formulated and refined over two decades: carefully assess the legal landscape; understand those you need to persuade, including judges; build familiarity [among the nongay mainstream] with committed same-sex couples through discussion and exposure to gay families; and accumulate state wins as building blocks to national marriage equality at the right time.”
This is a broad mural of collective strategizing. Within that, the most credit goes to Evan Wolfson, who — astonishingly — in 1983 wrote a visionary law school paper, 141 pages long, arguing that marriage rights had to be the central goal of the gay movement. At the time it seemed ridiculous. But he persisted — for decades. As a newly minted lawyer who found his way into a then-small cadre of full-time gay and lesbian civil rights advocates, Wolfson had to battle almost universal opposition to the pursuit of marriage in the movement as a whole.
Why opposition? There were two main lines of reasoning. A liberationist/radical feminist faction rejected what it saw as the confining patriarchal institution of marriage; it wanted queers to be a revolutionary vanguard inventing new legal forms of family, not retreating into normalcy. Another faction — call them the “whoa there, Nellie” folks — thought marriage might be a good goal someday, but for God’s sake, not yet. Their oft-used metaphor was that marriage rights were the roof of a house — and the LGBT movement hadn’t even cleared the ground, much less built the foundation. People were still getting fired or losing custody of their children for coming out; aiming for marriage so soon would only bring on a backlash and ugly case law, slowing progress.
All this got hashed out at the Gay Rights Litigators’ Roundtable, a little-known working group that Frank reveals as a critical source of strategy, tactics and an internal moot court testing every idea. For several years Wolfson was ordered to stand down, staying away from any potential marriage cases. But in 1993, a rogue lawsuit in Hawaii, brought by outsiders to the movement, was taken seriously at the Hawaii Supreme Court. Those justices thought denying marriage licenses because of gender smelled like sex discrimination — and sent the case back to trial under a higher standard. Wolfson’s boss at the Lambda Legal Defense and Education Fund sent him to Hawaii to help run that effort.
That hint of homosexuals marrying, coming just as President Bill Clinton was trying to let lesbians and gay men serve openly in the military, started a feverish nationwide debate — no, let’s call it a panic — about what people then called “gay marriage,” before Wolfson rebranded it “marriage equality.” Religious-right groups and Republican operatives rushed to put referenda on ballots and bills in front of legislators to define marriage as between one man and one woman. By 1996, 26 states and the federal government had passed Defense of Marriage Acts (DOMA) to protect innocent men, women and children from being overrun by married homosexuals, pedophilia, plague, incest, polygamy, bestiality and general apocalypse — and no, I am not exaggerating about the rhetoric. Hawaii voters passed one such measure, mooting the Hawaii lawsuit.
But by then Wolfson had a partner in Mary Bonauto, civil rights director at New England’s Gay and Lesbian Advocates and Defenders, who quickly became the movement’s chief marriage litigator. They won over the rest of the legal roundtable to what became their state-by-state impact litigation strategy: carefully identify states where there was already a strong foundation of laws and court rulings in favor of LGBT rights, and where the constitution was hard to amend; bring lawsuits under the state constitution, never implicating the federal government; work closely with the statewide infrastructure of LGBT activists and power brokers to prepare for and protect any win; and chloroform — er, persuade — individual rogue plaintiffs not to bring marriage lawsuits in states where they’d almost certainly lose, leaving behind trouble that would be hard to clean up.
It was a winning strategy, especially as carried out by Bonauto, who successfully plotted the lawsuits and marshalled the effort to win the first breakthroughs: civil unions in Vermont in 2000; marriage in Massachusetts in 2004; marriage in Connecticut in 2008. Wolfson, meanwhile, backed by visionary funders, launched a national organization to support activists who wanted to prepare the way for marriage in their own states. For several years he seemed to be everywhere, speaking and writing incessantly, fundraising and organizing, urging the troops onward, exhorting us all to do our part to win in public opinion as well as the courts.
While the roundtable strategy was winning, California became proof that the improv approach — let’s do it because it’s right! — made a big mess. In 2004, the straight mayor of San Francisco, acting with no legal authority and without consulting any LGBT advocates, started marrying same-sex couples. While the lines to city hall to marry were long and giddy, those marriages’ legal status was entirely uncertain. California had passed a Defense of Marriage Act in 2000. And so those rogue marriages set off a cascade of competing lawsuits, state court decisions, another referendum, and still more lawsuits and state and federal court decisions. Finally an impatient young activist named Chad Griffin met with some rich, straight Hollywood liberals and brought to life the legal roundtable’s nightmare: a lawsuit in federal court claiming that it was unconstitutional to deny same-sex couples the right to marry. Republican legal big shot Ted Olson teamed up with Democratic legal big shot David Boies in hopes of galloping to the Supreme Court with Hollingsworth v. Perry, which sought a ruling akin to Loving v. Virginia on interracial marriage, striking down every ban on marriage equality in the country at one blow.
Fortunately, Bonauto had already filed a more sensible and restrained federal lawsuit that challenged the federal DOMA on behalf of couples married in Massachusetts who were denied the federal recognition that all other Massachusetts marrieds got. That lawsuit was soon joined in the federal system by similar DOMA challenges. “Awakening” explains clearly why so many of us were relieved when, once at the Supreme Court, Perry was decided on very narrow grounds, letting Californians marry but not taxing the justices to decide the constitutionality question just yet. Meanwhile Windsor v. United States, which challenged only the Defense of Marriage Act, won.
And as Frank details, the success of Windsor set off a flurry of challenges everywhere in the country. Within two years, all those DOMAs had crumbled into dust, blown away by the Supreme Court declaring a federal freedom to marry.
It turns out that while the whoa-Nellies had been right about the backlash, Wolfson and others of us had been equally right about how marriage rights would transform understanding of lesbians and gay men. Marriage made us socially comprehensible to those around us, visible within the structure that organizes so much of our culture. We weren’t just people who had yucky sex; we were married or single, parenting or child-free, widowed or divorced, people who fell in love and organized our lives around the resulting commitments. Those who wished to reject marriage because it was confining or patriarchal or what have you could still reject it — just as similar straight couples did.
“Awakenings” isn’t perfect. It starts too early, spending too many indifferent pages sketching the LGBT movement’s background. It misses the vast uprising of ordinary lesbians and gay men who pushed their reluctant leaders to focus on marriage. It doesn’t show the ugliness of the attack ads against marriage, the front-line fights to win state campaigns and change legislative minds, the bitter internal divides about how to run those campaigns, or the breakthrough door-to-door strategy and television ads that finally turned the tide.
Most puzzlingly, this is a book about marriage that lacks personal stories. For so many of us, the marriage fight was intellectually thrilling and emotionally explosive, passionate and personal, complete with extreme swings of emotion, hope and terror, exhilarating wins and despairing losses. I remember sitting in the Supreme Court press gallery for the Perry and Windsor cases, and looking down at rows of the legal roundtable — our superheroes, our gods and goddesses — filling rows at the court as honored guests, while the dignity of our lives was fought out in the gladiators’ arena we call a courtroom. Such heart-stopping moments aren’t captured in this book’s careful academic prose.
But I don’t want to make the mistake of reviewing a book the author didn’t intend to write. Frank gets it down and gets it right. He has clearly mastered every document, interviewed every principal, detailed every legal argument and given credit where it’s due. His book is the text from which other histories will be written, and the textbook from which future impact litigation and advocacy will be planned.
By Nathaniel Frank
441 pp. $35