Evan Wolfson, Director of the Marriage Project at the Lambda Legal and Education Defense Fund, discusses the right-wing war on gays and lesbians and the prospects for same-sex marriage.
Platt: There were two ballot initiatives in this election cycle banning same-sex marriage -- in Nebraska and Nevada. As you know, the initiatives passed easily. How would you put these referenda in the context of the decade-long quest for the recognition of same-sex partnerships?
Wolfson: It is very important not to characterize the Nebraska anti-gay, anti-family, constitutional amendment as being about marriage alone. The Nebraska amendment sweepingly bars gay people from all family protection under state law, at all levels of government big or small, and in fact spells out that gay people must be excluded from marriage, from respect for domestic partnership, from civil unions and from "any other similar relationship." What's clear is that the right-wing is maintaining a steady attack -- state-by-state as well as nationally -- on gay people's freedom to marry as well as any form of protection or respect for our family relationships.
They are desperately eager to erect legal barriers and prevent us from having protections for our family, and to try to shut down the discussion that our movement for the freedom to marry has engendered all around the country. They don't want non-gay people hearing real life stories about committed gay couples. They don't want people talking about how excluding gay people from marriage hurts our kids, how it makes no sense as a matter of public policy, and contradicts the rest of their rhetoric about the importance of supporting families. They don't want people talking about gay people's lives with a vocabulary of love and commitment and responsibility.
The great thing is that even though they may be able to beat us in a particular battles here or there, month by month we are seeing growing support for gay people's freedom to marry. Two-thirds of Americans now believe that gay people will win the freedom to marry, according to the NBC News-Wall Street Journal poll. That is unbelievable if you consider that it was only seven years ago that the Hawaii Supreme Court first put this question of the denial of marriage before the country. So, despite the right wing attempts to choke off the movement and despite their occasional successes in attacking us, the momentum here is that non-gay people are coming to understand that the sky does not fall when gay people are included.
Q: Are there any plans in the works to challenge the constitutionality of the new measures in court? In light of previous cases, how successful would a court challenge be?
A: In Nebraska, the right wing pushed through a constitutional amendment. They have now written into their constitution this flat-out, sweeping exclusion from family protections at every level. In order to amend the constitution [in Nevada] they have to put it on [the ballot] in two election cycles. So there was a vote on the first election and now it goes back before the voters for possible ratification into the constitution two years from now. What needs to happen is that people need to not sit around and wait until two months before the vote in 2002, but need to use this as a wake-up call to fight this despicable attempt to write this exclusion into the state constitution.
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Q: Is there anything to be done in Nebraska?
A: Absolutely. This constitutional amendment, shoving gay people outside of family law is blatantly unconstitutional. It violates the basic principles of equality, and the rule that government cannot make any group of Americans "strangers to the laws" that apply to everyone. I think there definitely will be a constitutional challenge -- and Lambda is studying that right now together with local families and leaders.
Q: In terms of court battles, what lessons can we draw from Hawaii and Vermont? What are most successful legal strategies?
A: I think the most important lesson is that when we get into the clear, cool, dispassionate light of a courtroom, it is evident that the government does not have a good reason for denying gay people the freedom to marry. In both Hawaii and Vermont, the government was not able to show a reason to justify this discrimination. There is now a body of evidence and there are these court decisions that have looked at this. The state had ample opportunity to call any witnesses it wanted at taxpayers' expense, to bring in experts, to make any arguments, to write any briefs, and they were unable to show a good reason for denying gay people the opportunity to share in the commitments and responsibility of marriage. That is lesson number one.
Lesson number two is that the role of the court is vital and essential as it always has been historically in promoting inclusion in our society. On the other hand, it is not enough to leave it to the courts, because what happened in Hawaii is that we were winning in court, and the right wing poured millions of dollars for a campaign to tear a hole in the state constitution to prevent the courts from doing justice.
Q: What do you think about the way that the issue of same-sex marriage was handled in the vice-presidential debates this October? I remember being pretty amazed at Dick Cheney's stance. He said: "People should be able to enter into any kind of relationship they want to enter into. It's really no one else's business in terms of trying to regulate or prohibit behavior in that regard." Not really a ringing endorsement -- but is this rhetoric from a conservative politician a step forward?
A: It was only one presidential election ago that candidates from all the parties were falling all over themselves [to endorse] the anti-marriage law being pushed in the Congress -- the federal Defense of Marriage Act -- and the Republicans put it forward and Clinton signed it as an election-year maneuver. And here we are one election cycle later and you have the candidates of both parties -- including a conservative Republican and (at most) a centrist Democrat -- saying that they are grappling with, wrestling with, struggling with, not just whether gay people should be protected against violence, but whether gay people should be allowed to marry.
What's even more striking is that the question didn't even ask about marriage! The question was basically "a man loves a man, a woman loves a woman . . . do you believe they should have equal constitutional rights?" and both Cheney and [Senator Joe] Lieberman answered that question by bringing up the vocabulary of marriage, because Americans have now come to understand that the freedom to marry is an essential aspect of talking about gay people's equality and inclusion.
Q: What do you think the implications of a Bush presidency will be for the movement for same-sex marriage?
A: It may be slower going in the courts and the legislature for a few years now, given the country's probable gridlock and wrangling and the fact that we won't see strong positive leadership for civil rights from the president. But at the same time, presidents come and go. It is engaging the public that will make the difference. And there is no turning back on that unless we ourselves give up. The presence of gay people in the American family is now out for everyone to see and that's not going to change even if there is a more conservative -- or even more hostile -- administration.