Winning and Keeping the Freedom
to Marry for Same-Sex Couples
What Lies Ahead After Hawaii, What Tasks Must We Begin Now?
by Evan Wolfson
© December 1999, Evan Wolfson
Thank you for the opportunity to brief you on the status of Lambda’s Hawaii marriage case, and the challenges, opportunities, and work that lie ahead for our equality movement. Throughout the country, we must begin preparing now to defend the right to marry, which we are on the verge of winning. Lambda looks forward to working with you, others in our movement, and our allies, and is available as a resource to assist you and others, in organizing and preparing at this historic moment in our equal rights struggle.
[note: In the Hawaii case mentioned below, the State Supreme Court made a final ruling in December 9, 1999 which denied legal marriage to same-sex couples. Also, the litigants for the Alaska case decided to drop their suit after a bollot measure restricted legal marriage to opposite-sex couples only. For a review of the pursuit of marital legal status in the U.S., please see Legal Marriage Court Cases — A Timeline.]
Update on the Hawaii Marriage Case
In May 1993, the Hawaii Supreme Court ruled that the State's refusal to issue marriage licenses to same-sex couples under the Hawaii marriage law presumptively violates the state constitutional guarantee of equal protection. Baehr v. Miike [now called Baehr v. Anderson], 852 P.2d 44, 74 (Haw. 1993). The Court held that the “different-sex restriction” on marital choice constitutes unconstitutional sex discrimination, much as the analogous “same-race restriction” prevalent just a generation ago constituted unconstitutional discrimination based on race.
Unless the State can show a “compelling” reason why it should be allowed to continue discriminating, it will have to stop. Any justifications the State comes up with must undergo “strict scrutiny,” the strongest review. The case is now back in the trial court, scheduled for trial on July 15, 1996 [since changed to August 1, 1996] — which gives us real, although limited, time to organize and educate the public.
Given what the State has come up with so far as its “compelling” reason for discriminating, my co-counsel, Daniel R. Foley of Honolulu, and I are hopeful that we will be able to win in the lower court. On appeal, the Hawaii Supreme Court is likely to follow through on its earlier holding, and will probably thus uphold a trial court decision ending the “different-sex restriction” on marriage. That final ruling will likely come within the next two years. Equal marriage rights for same-sex couples would then be a reality in the Nation’s fiftieth state.
Many same-sex couples in and out of Hawaii are likely to take advantage of what would be a landmark victory. The great majority of those who travel to Hawaii to marry will return to their homes in the rest of the country expecting full legal nationwide recognition of their marriage unions. Despite a powerful cluster of expectations, logistics, rights, constitutional obligations, and federalist imperatives, there will likely be a backlash at both the federal and state level, possibly in almost every state.
These questions are likely to arise:
- Will these people’s validly-contracted marriages be recognized by their home states and the federal government, and
- Will the benefits and responsibilities that marriage entails be available and enforceable in other jurisdictions for people married in Hawaii?
We at Lambda believe that the correct answer to these questions is “Yes.” To support that answer, common sense and people’s general intuitions both back us up and are there for us to tap into: marriage is marriage; it’s a fundamental right; if you’re married, you’re married; this is one country, and you don’t get a marriage visa when you cross a state border. However, we also know that, as always, lesbians and gay men will have to fight against the tendency of some in politics and the judiciary to create a “gay exception” to even the clearest principle of constitutional law or fairness.
Throughout the country, we must now undertake the public education, political organizing, and just plain asking people and groups for support, while preparing, too, for the litigation and political backlash that will follow.
Legal Tasks Ahead
Lambda has prepared a summary of the legal issues and theories that will be invoked regarding nationwide recognition of marriages validly contracted in Hawaii, as well as a bibliography of articles on various aspects of equal marriage rights. Identifying the legal tasks ahead, we have also already begun work to:
- Develop networks of attorneys, law professors, and law students to research on a state-by-state basis the legal arguments available against backlash and in favor of recognition (working, i.e., through the ABA, NLGLA);
- Organize such research by developing checklist of issues and legal areas for analysis;
- Collect materials in a national clearinghouse for future battles;
- Promote, develop, and publish law review articles and spin-offs to mainstream idea of equal marriage rights, recognition, and related constitutional and federalist positions;
- Enlist legal scholars, former law clerks, etc. to do this mainstreaming work and reach judges through conferences, publications, trainings, and create a “buzz;” and
- Prepare materials for legislatures, ranging from briefings to explanatory materials to draft legislation directly on issue and on related issues, i.e., marriage validation.
Political Tasks Ahead
At the same time, it is vital that all of us, and our allies, begin work now on the political tasks (i.e., public education, national and local organizing) that will shape the legal outcome. On both the national and local levels, all of us must begin now to:
- Send wake-up calls to our national and local community organizations, and our allies (through, for example, conferences, ad hoc forums, contacts, and briefings such as this);
- Create a non-defeatist sense of entitlement and expectation, and a climate of receptivity and inevitability (tempered with a commitment to the long haul) — tap into power of marriage as issue and personal desire even for those less politicized people in our communities;
- Prepare and begin public education campaigns (in conjunction with appropriate groups and professionals);
- Develop successful “messages” (with polling and public relations professionals) on the themes of marriage, lesbian and gay families, equal rights, fairness, people's expectations for their partners and children, and federalism — these are themes that work for us, and a chance to show who we are, frame the battle as we want, address our issues, and present our lives and love affirmatively — tap into more comfortable, genuine rhetoric for mainstream;
- Marshal evocative stories of how being denied the right to marry affects real people;
- Build a coalition (after developing lists of targets, teams for visiting, and talking points, educate and conduct repeated meetings with potential allies, i.e., progressive organizations, asking for their consideration of the issue over the next several months, and either now or eventually, for their support and endorsement of a resolution in favor of Baehr, lesbian and gay families, and equality);
- Conduct such repeated meetings with other opinion-shapers: community leaders, churches and religious groups, professional organizations (i.e., social workers, sociologists, psychologists, etc.);
- Initiate such repeated meetings with editorial boards (following advance prep work through networks, with briefing packets and explanatory memoranda);
- Prepare such briefing packets, memoranda, issue sheets, organizing manuals, talking points;
- promote and publish op-ed pieces, features, etc.;
- Organize public forums on topic;
- Organize and conduct trainings to assist local groups in doing this political, educational, and “mainstreaming” work, and
- Develop defensive legislative strategies for state legislatures and Congress
Although there are many challenges and a backlash ahead, there are also terrific opportunities for organizing and for taking our movement to a new and positive plane. Most Americans, gay or non-gay, have not yet had to give real thought to the validity or meaning of same-sex couples' marriages, or of gay people's being denied the equal right to marry.
While the initial reaction of many will range from incredulous to hostile, we also have much going for us: the fairness and rightness of respecting family relationships and committed, caring unions; the ability to present these stories in a compelling, positive, warm, and sympathetic manner (asking people how they would resolve the Catch-22 created by a denial of the right to marry); the logic, indeed, imperative of not requiring people to choose between marriage and movement from state to state; the sense that marriage is marriage, and this is one country in which if you are married, you are married; and a number of sound constitutional, statutory, common law, and fairness arguments.
Before we have even begun to do the public education work necessary, polls show that one-third of the public is already with us, and at least another third is reachable. We must solidify our supporters, and reach out to the persuadable, open-minded middle.
We must begin asking people and groups — first, our own communities and our allies, later, other opinion shapers and reachable neutrals — for their support. The very first step has to be bringing ourselves, our local and national community groups, and then our allies up to speed on what will follow a win in Hawaii, and on these legal and political tasks that we must undertake now. Lambda has begun such briefings and urges you to organize others, so that we can avoid the unpreparedness that was apparent in the 1993 battle over our right to serve in the military. This time, we have some lead time in which to prepare.
The next step is to get as many organizations as possible to endorse this short and simple marriage resolution:
The Marriage Resolution
Because marriage is a basic human right and an individual personal choice,
The Marriage Resolution serves as a vehicle for:
Resolved — the State should not interfere with same-gender couples
who choose to marry and share fully and equally
in the rights, responsibilities, and commitment of civil marriage.
- Promoting the necessary discussion and consideration of our equal marriage rights among gay and non-gay people (and organizations),
- Collecting signatories as evidence of a growing coalition (Lambda maintains the list of signers, which we will share with you upon request), and
- Giving people a tool and a task in building that coalition and approaching others.
All the national gay/lesbian groups and hundreds of groups and religious leaders nationwide have already signed on, including such impressive examples as the Japanese-American Citizens League (the nation's largest Asian American civil rights group), the National Organization for Women, and a mainstream religious denomination, the Federation of Reconstructionist Congregations and Havurot.
Please use the Resolution, contact us to sign up your group, and get others on board! One effective approach is to send the Resolution with some materials to ten groups, asking them to sign on (give them a form to fax or mail back to Lambda) and then send a similar letter and the Resolution to ten others. This really does work (especially with a response form that they can send right in). Contact us for materials.
Already, in three states, we have seen the backlash begin before we have won our freedom to marry. In Utah, South Dakota, and Alaska, radical-right legislators introduced anti-marriage legislation aimed preemptively at thwarting recognition of marriages we someday may lawfully celebrate in Hawaii or elsewhere.
The results of these opening skirmishes are revealing. In Utah, by cheating, the bill passed through the legislature and became law. In Alaska, it is too soon to predict, but so far we are winning. And in South Dakota, thanks to the hard work of local activists together with National Gay and Lesbian Task Force [After October 2014, known as the National LGBTQ Task Force.] and Lambda, we won. Round one offers us hope: we can win.
As activists and committed organizers, you and your organizations have a critical role in preparing the groundwork now for when this issue comes to your home state, as it will. This landmark civil rights battle cannot be left just to lawyers, nor is this is an issue only for Hawaii. Every state, every gay person, every person who cares about equality will be called upon to defend the rights we will have won. The backlash could happen anywhere, any time.
Lambda is available to assist you in your leadership at this historic juncture. Contact the Lambda Marriage Project for materials or more information, to share your thoughts and plans, and to join with us and others in this work. Ask for our Resource List, copies of our Marriage Resolution Brochure, our legal summaries, or press kit. And please — help organize, educate, and promote the Resolution in your community and state now!
 See Loving v. Virginia, 388 U.S. 1 (1967) (“same-race restriction on choice of a marriage partner violates U.S. Constitution, both as denial of equal protection and as intrusion on fundamental right to marry”).[Jump back to text.]
 See, e.g., 1994 Haw. Sess. Laws 217, 1994 Hi. H.B. 2312 (June 1994) (legislature asserts that marriage statute “intended to foster and protect the propagation of the human race through male-female marriages”). Contrary to some press reports, this law is unlikely to impede the progress of the litigation, which is very much still on track. [Jump back to text.]
 Because the case involves state, not federal, constitutional questions, the Hawaii Supreme Court has the final word. There can be no appeal in Baehr to the U.S. Supreme Court, nor can the legislature alter the outcome (notwithstanding legislation such as that it adopted in June 1994 reiterating its desire to discriminate), short of a highly unlikely constitutional amendment. [Jump back to text.]
 There is a vast demand among lesbians and gay men, as among non-gay people, for the freedom to choose whether and whom to marry. See, e.g., Evan Wolfson, “Crossing the Threshold: Equal Marriage Rights for Lesbians and Gay Men, and the Intra-Community Critique,” 21 N.Y.U. Rev. L. & Soc. Change 567 (1994). Marriage brings with it a host of legal and social benefits and protections otherwise largely unattainable. And even those in our movement who may not have chosen to fight to win this right are undoubtedly not willing to see us lose it — with all the potential damage such a setback would entail across a range of lesbian and gay concerns. [Jump back to text.]
 Lambda and the other legal groups strongly recommend that, for now, people not file or precipitate marriage lawsuits. The strategy for now is to do the nitty-gritty work of political organizing and public education, to accompany the legal work in progress. [Jump back to text.]
 See David W. Dunlap, “Some States Trying to Stop Gay marriages Before They Start,” N.Y. Times, Mar. 15, 1995, p. A18, col.1. [Jump back to text.]
 See “Recognition of Marriages,” H.B. 366, Gen. Sess. (1995); see “Utah Won’t Accept Same-Sex Marriages,” N.Y. Times, Mar. 3, 1995, p. B&, col.4.; Tony Semarad, “Ban on Gay Marriages to be Annulled? Passage May Have Come Too Late to Be Valid,” Salt Lake Tribune; Peter Freiberg, “Gays Win in South Dakota, lose in Utah,” Wash. Blade, Mar. 3, 1993, p.1, col.1. [Jump back to text.]