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The Freedom to Marry: Eyes on the Prize

Commentary by Evan Wolfson
Lamdba Legal Defense and Education Fund's Marriage Project Director

September 10 saw a historic convergence of events that reflect our enormous progress toward winning the freedom to marry. In Honolulu, Lambda's landmark Baehr v. Miike trial began, and the government, for once, was required to justify its harsh sex discrimination in civil marriage. On the same day, clear across the country, the United States Senate shamed itself by approving the federal anti-marriage bill with the Orwellian title, the "Defense of Marriage Act" (DOMA).

By the end of September, with the Hawaii trial concluded and the federal bill signed into law by President Clinton, several truths were as clear as the dawn on a bright new day.

First, once the government was obliged to give a reason for refusing same-sex couples the freedom to marry, the trial showed that it doesn't have one! In two powerful weeks of testimony, day after day, the state's pitiful and offensive rationales were undermined by their own witnesses, and soundly rebuffed by the national and local experts my co-counsel Dan Foley and I called to the stand.

The decision is now in the hands of the lower court, and ultimately, the Hawaii Supreme Court, with a final decision expected in 1998. But as we wrapped up the trial, it seemed to me that everyone in that courtroom, from the national and local press to the committed activists, from the public to our ferocious opponents, from our terrific client couples to us, the attorneys... everyone felt the power of the truths that had been established, under legal process, about lesbian and gay lives and love, about our families and our children, about equality and our equal human right to share in the freedom to marry. I know everyone felt the force of history with us in Hawaii that day -- we are winning the freedom to marry and the equality it represents.

Second, the election-year passage of DOMA, while despicable, was a historic concession by our enemies. When 1996 began, they said the idea of "gay" and "marriage" in the same sentence was laughable, and would never happen. With DOMA, they acknowledge that lesbians and gay men will indeed win the freedom to marry, so now they want to discriminate against those lawful marriages!

Inserting the federal government into marriage for the first time in U.S. history, DOMA creates a radical caste-system of first- and second-class marriages. If the federal government likes whom you marry, you get a vast array of legal and economic protections and recognition. If the federal government doesn't like whom you married, recognition and protection are withdrawn in all circumstances. DOMA's blatant violation of constitutional principles of federalism, non-discrimination, and respect for lawful marriages shows this political assault to be, not just gay-bashing, but, in the words of The New York Times, "constitution bashing."

DOMA is not -- as our enemies would like America to believe -- the end of our struggle to win the freedom to marry. It is merely one more mountain on our march. Once we win the freedom to marry, we will challenge this sweeping and invidious federal discrimination as couples fight to protect their families and their lawful marriages, state by state, court by court.

In the battles that will follow our victory in Hawaii, Lambda and others will fight until it is clear that just as we are not supposed to have second-class citizens in America, so we should not have second-class marriages.

Finally, our enemies have failed in their effort to squelch the rich and pervasive public discussion that began with our case in Hawaii. As long as we (gay people and non-gay allies) continue to engage the public, we will continue to enlist fair-minded people to our side. Once people see lawfully-married same-sex couples being discriminated against, and our country forced into absurd "now you're married/now you're not" contortions, the discrimination will fall. Our enemies may want America to be a "house divided," but most Americans will not. Poll after poll, and, for that matter, election result after election result, shows that even those who do not yet support equal marriage rights for gay people do not like the anti-marriage attacks of our opponents. The force of history is with us.

But there is no marriage without engagement. DOMA only serves to highlight what Lambda has said now for years: We are in a struggle for the map of the country. This year, the Christian Coalition and their ilk pressured legislatures in 37 states to consider anti-marriage legislation; we beat them back in 21! But next year, they will be back.

We must seize this historic moment of public engagement to reach out to non-gay people. We must reject opponents' efforts, as well as the ambivalence, denial, or timidity of those within our own movement, who wish to avoid this battle and moment. As Martin Luther King, Jr. reminds us, "In this Revolution, no plans have been written for retreat. Those who will not get into step will find that the parade has passed them by."

A century before him, Frederick Douglass wrote:

If there is no struggle, there is no progress. Those who profess to favor freedom and yet deprecate agitation are people who want crops without plowing up the ground. They want rain without thunder and lightning.... Power concedes nothing without a demand. It never did and never will. People might not get all they work for in this world, but they certainly must work for all they get.

And during the congressional debate on DOMA, civil rights hero Rep. John Lewis (D-Georgia) rose to declare:

This bill is a slap in the face of the Declaration of Independence. It denies gay men and women the right to liberty and the pursuit of happiness.....

Marriage is a basic human right. Dr. King used to say when people talked about interracial marriage, Races do not fall in love and get married. Individuals fall in love and get married.'...I have known racism. I have known bigotry. This bill stinks of the same fear, hatred, and intolerance. It should not be called the Defense of Marriage Act. It should be called the defense of mean-spirited bigots act.... Every word, every purpose, every message is wrong. It is not the right thing to do, to divide America.

All of America is now talking about our equality and families, and about our freedom to marry. It is our task at this time to engage, fully and with determination, knowing that history is with us as we move forward in Hawaii, throughout the country, and, indeed, across the globe, to full equality and inclusion for lesbians, gay men, and those we love. It is a struggle not just for marriage, not just for gay people, but for what kind of country we want this to be. And we will win.


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