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opinion | E.J. Graff

The fight for marriage equality

Hillary and Julie Goodridge, left and center, emerged from Boston City Hall On May 17, 2004, with marriage papers in hand. Attorney Mary Bonanto, right, accompanied them.

David L. Ryan/globe staff/file

Hillary and Julie Goodridge, left and center, emerged from Boston City Hall on May 17, 2004, with marriage papers in hand. Attorney Mary Bonanto, right, accompanied them.

What a week that was, 10 years ago, when same-sex couples started to marry. I remember the klieg-lit, crazy, late-night party at Cambridge City Hall, staked out by news trucks, when at midnight on May 17, the city issued the first licenses. I remember the phalanx of international cameras at the Goodridges’ wedding, at the Unitarian Universalist headquarters on Beacon Hill. I remember which lesbian and gay couples beamed from the cover of the Herald, the Globe, and every local paper. The spring and summer of 2004 overflowed with weddings, as a rush of couples who had long been married in daily life were abruptly, joyfully, licensed to marry in law.

We know who got us there: Mary Bonauto of New England’s GLAD (Gay & Lesbian Advocates & Defenders), the Thurgood Marshall of the marriage equality movement. So did attorney Evan Wolfson, who had advised the first marriage lawsuit in Hawaii. A preliminary 1993 Hawaii Supreme Court win (saying the lawsuit should be re-heard at trial) triggered a national conversation about marriage equality — and a rash of referenda and legislation banning same-sex marriages in many states and the federal government. Ten years later, in 2003, Wolfson founded the national organization Freedom to Marry, and issued his “2020 Vision,” saying that we could have full marriage equality nationwide by 2020, “if we did the work.” It seemed absurd: We faced more than 30 laws against our loves, and hadn’t yet won a single state.

Attorneys David Boies and Ted Olson talked to the media after oral arguments at the Supreme Court in 2013 in Washington, D.C., after the high court heard arguments in California’s Proposition 8 case.

Getty Images/file

Attorneys David Boies and Ted Olson talked to the media after oral arguments at the Supreme Court in 2013 in Washington, D.C., after the high court heard arguments in California’s Proposition 8 case.

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But Wolfson did the work. And, after Bonauto’s Massachusetts victory, so did scores of LGBT activists. Hardworking staff and volunteers laid out lobbying strategies, visited legislators, spoke to neighbors, and did all the gruelingly necessary work of changing individual minds. Bonauto collaborated with other states’ visionaries to painstakingly win marriage in the rest of New England, sometimes through lawsuits, sometimes through legislation, sometimes through a combination of the two. Wolfson and his staff worked nationally on messaging, polling, organizing, and campaign strategy.

Because of them, public opinion shifted far more quickly on marriage equality than on almost any other social issue — so quickly that many nongay people got righteously enthusiastic about marriage equality. That includes Ted Olson and David Boies, celebrity Supreme Court lawyers who, without consulting the marriage equality movement’s leaders, launched a lawsuit challenging Proposition 8, a California ballot initiative that had eliminated same-sex marriage in that state. The suit struck terror into many LGBT hearts.

The marriage equality strategy had long been to lay down a substrate of state wins before heading into federal court to demand that the federal government recognize those states’ marriages. Anything too broad too early risked setting down a terrible precedent, as had happened with sodomy laws in Bowers v. Hardwick in 1986. The role model: Thurgood Marshall’s careful legal strategy leading up to Brown, of course, and the Supreme Court’s nearly two decades of refusing to hear lawsuits challenging anti-miscegenation laws until 1967, when most states had gotten there first.

But Olson and Boies filed a federal lawsuit intended to impose marriage equality in one fell swoop from above. Fortunately, Bonauto was a step ahead of them. She and GLAD had already filed a long-planned federal lawsuit against the Defense of Marriage Act’s refusal to recognize Massachusetts’ same-sex marriages. Other LGBT groups and lawyers launched similar lawsuits in other marriage-equality states, hoping to beat Olson and Boies to the top.

Attorney Evan Wolfson left the Supreme Court in 2000. The court heard arguments on whether the Boy Scouts have a constitutional right to exclude gay members.

Getty Images/file

Attorney Evan Wolfson left the Supreme Court in 2000. The court heard arguments on whether the Boy Scouts have a constitutional right to exclude gay members.

Bonauto’s strategy won. Since the Supreme Court’s decision last spring in Windsor v. United States, the federal government has had to recognize legally performed same-sex marriages. The Supreme Court trimmed Olson and Boies’ ambitions on a technicality; the Prop. 8 lawsuit did reopen California’s marriages to same-sex pairs, but left the rest of the states to come along on their own time. Which they have. There are now 17 marriage equality states, and another 13 that are either already issuing licenses or in the queue to do so imminently. The next Supreme Court case is expected to knock open the whole pinata, almost certainly sooner than Evan Wolfson envisioned a decade ago.

In other words, the LGBT insider strategy worked. The heterosexual outsider strategy failed.

So why does the Prop. 8 lawsuit gets most of the national media attention? In the book “Victory,’’ former Brandeis University professor Linda Hirshman touted the Prop. 8 challenge as the pivotal moment in the marriage equality battle. In her recent book “Forcing the Spring: Inside the Fight for Marriage Equality,’’ New York Times reporter Jo Becker treated Olson and Boies as heroic, ignoring or even distorting any context about who was actually changing the world.

Yes, the Prop. 8 trial showcased the best experts and made bold claims about equality — which may be more exciting than incremental effectiveness. But the book about the real movement for marriage equality is yet to be written. Just remember: The victory started here.

E.J. Graff, senior fellow at the Schuster Institute for Investigative Journalism, is the author of “What Is Marriage For? The Strange Social History of Our Most Intimate Institution.’’
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