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Advancing Past the Injustice
by Evan Wolfson
© November 1998, Evan Wolfson


The following was written in the wake of November 1998
ballot measures in Hawaii and Alaska which perpetuated
the denial of legal marriage to same-sex couples.

Freedom to marry is a basic civil right, a basic human right, and an important, individual, personal choice that belongs to the couple in love, not to politicians or the state. The denial of civil marriage — with all the protections, benefits, obligations, and support it brings — imposes real harms on real-life families. It is wrong to deny that commitment to those willing to undertake it. It is cruel and wrong to withhold that protection, that support, that equality, from lesbians and gay men and our loved ones.

Whenever we have had a fair day in court, most notably in the historic Hawaii trial of 1996 [See the actual Hawaii Court Finding, and also Legal Marriage Court Cases — A Timeline.], it is clear that the government does not have any good reasons for denying the freedom to marry to same-sex couples.

The record is clear: when forced to show a reason, they do not have one that can stand up in the cool, clear, dispassionate light of a court of law. So fearful of being required to show a rational for this discrimination, that those who oppose legal marriage turn desperately to tearing holes in state and federal constitutions, thus hoping to avoid defending this discrimination.

Equality and civil rights of vulnerable minorities should never be put to a vote. It is wrong to strip protections from the constitution in order to prevent courts from assuring equality for all. Ironically, if further proof of this basic American proposition were needed, it can be found in another vote that took place in South Carolina in November 1998. Voters were asked to approve an amendment to their state constitution to remove language banning interracial marriage. Although that law has been null and void since the Supreme Court's decision in Loving v. Virginia a generation ago, nearly 40% of the vote was against deleting the ban on interracial marriage!

Imagine the result if — as is now done to lesbians and gay men — America had tolerated a vote on whether or not to end race discrimination in marriage, rather than in courts. It wasn't until 50 years ago that the California Supreme Court, by a 4-to-3 vote, became the first court ever to strike down race discrimination in marriage. It took nearly twenty years for this question to be resolved by the U.S. Supreme Court in Loving. In our struggle to end sex discrimination in marriage, we, too, deserve the equal protection of the constitution and courts, rather than having our equality put to a vote — particularly in a campaign massively funded by the political, religious right.

As with any civil rights struggle, our work to end sex discrimination in marriage is for the long-haul. And any setbacks and disappointments do not mean the end of our work, or our commitment to see it through. We endeavor to continue our press for legal marriage with state legislation and with litigation. We move forward.

We have come so far already. We have changed the discourse, the stakes, the allies, and the dialogue. We have enlarged the possibilities. We have instilled a hope, especially in young people, and we owe it to them, and ourselves, to bring it to fulfillment. We have made clear our intention to settle for nothing less than full equality for our love and loved ones.

I carry in my wallet two quotations. One is from civil right hero and Congressman John Lewis' magnificent defense of our freedom to marry on the floor of Congress [See Lewis' A Mean Bill], speaking against the federal anti-marriage bill: “I will not turn my back on another American. I will not oppress my fellow human being. I have fought too hard and too long against discrimination based on race and color not to stand up against discrimination based on sexual orientation.”

The other is from Frederick Douglass, who long-ago wrote, “People may not get all they work for in this world, but they certainly must work for all they get.”

Our work may increase; our long haul may get longer. But with determination and perseverance, with the patient engagement of non-gay people in dialogue, in direct action, in legislatures, and in the courts, we will win.

It is good to note how far we have come, and also how much further we have to go. There may be more obstacles in our path, but they will not stop our march. The only sure way to lose is to surrender. And if our opponents think that we will, I believe they do not know the first thing about lesbians and gay men.

Let us show them we believe in ourselves, and take seriously — even if they do not — our country's promise of equality. Let us redouble our efforts to engage fair-minded non-gay people. Let us make this truly a country where everyone has the right to be both different and equal, and where no one is compelled to give up her or his difference in order to be treated equally.


© 1998, Evan Wolfson

Mr. Wolfson may be reached at evan@freedomtomarry.org
and the Freedom to Marry organization.
He is the former “Marriage Project” director for Lambda Legal
Defense and Education Fund
, and co-counsel in the Hawaii marriage case.


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