Mary Bonauto set to argue for gay marriage before Supreme Court
It was the early 1980s, and Mary Bonauto was a college student in upstate New York, struggling to come out as gay. She turned to a priest for help but left convinced her church would not accept her. Unsure where to turn, she felt her life might “be over.”
“The law was one way of making sure my life wouldn’t be over,” she recently recalled. “I could either just suffer from the system or change the system. I decided to opt on the change-the-system side.”
Over the last 25 years, the diminutive, soft-spoken lawyer with a self-described “underdog mentality” has changed the system, more quickly and dramatically than she could have imagined.
As the lawyer for seven gay and lesbian couples in 2003, she persuaded Massachusetts’ highest court to make the state the first in the nation to allow same-sex couples to wed. Now, 37 states recognize gay marriage, and polls show nearly two out of three Americans support the right of gay and lesbian couples to marry.
On Tuesday, Bonauto will lead what might be the final fight in the battle she began in Massachusetts a dozen years ago, when she delivers oral arguments before the US Supreme Court in a highly charged case that could make gay marriage legal in all 50 states. She will tackle the core issue before the court: whether state bans on same-sex marriage violate the US Constitution’s guarantee of equal protection under the law.
It will be her first time arguing before the nation’s highest court. She has been preparing by reading and re-reading past cases and by taking part in moot court sessions in which she is bombarded by the kind of pointed questions she might face from a skeptical Justice Antonin Scalia or Justice Samuel Alito.
If she and her cocounsels successfully argue their case, as many observers expect, Bonauto’s reputation would be cemented as one of the central figures in the evolution of gay marriage from the American fringe to the mainstream.
In addition to winning the landmark Massachusetts case, she was part of the legal team that made Vermont the first state to legalize civil unions in 1999 and helped win the first federal court rulings against the Defense of Marriage Act, in 2010 and 2012, before the Supreme Court struck down the law in 2013.
“Mary Bonauto’s contributions to the gay rights movement are analogous to those of Thurgood Marshall to the civil rights movement and Ruth Bader Ginsburg to the women’s rights movement,” Michael Klarman, a Harvard Law School professor, said in an e-mail.
Evan Wolfson, the president of Freedom to Marry, said Bonauto was chosen from among more than a dozen lawyers to argue the case because of her knowledge and history and because she represents the very issue the court is considering. The mother of 13-year-old twins, Bonauto married Jennifer Wriggins, a University of Maine law professor, in Massachusetts, after she won the case that secured the right for gays and lesbians. “She can not only answer the questions but embody the answer,” said Wolfson, who has known Bonauto since the 1980s. “She represents the movement because she’s lived it.”
Bonauto, 53, who lives in Portland, Maine, grew up in Newburgh, N.Y., and graduated from Hamilton College and Northeastern University Law School. In 1990, she joined Gay & Lesbian Advocates & Defenders in Boston. She represented clients who had been harassed or fired and helped the city of Cambridge draft its domestic partnership ordinance — the first in Massachusetts — in 1992.
In 2003, she gained national attention, when the Supreme Judicial Court agreed with her and ruled that same-sex couples have a right to marry under the Massachusetts Constitution’s guarantee of equal protection under the law. At the time, nearly two out of three Americans opposed gay marriage, and only a handful of countries worldwide recognized such unions.
“People forget that the argument before the SJC was, in many ways, entirely novel,” said Margaret H. Marshall, the former chief justice of the court, who wrote the gay-marriage decision. “The justices hadn’t confronted anything like this before. It would have been very, very difficult to prepare for it, and she was outstanding.”
Despite Bonauto’s legal victories, friends describe her as the antithesis of the showboating trial attorney. She rarely flashes emotion and is more apt to cite case law, or her clients’ struggles, than her own experiences as a gay woman.
“She is a pretty private person,” said Gary Buseck, legal director at GLAD. “She is not particularly comfortable with herself in the spotlight.”
In a briefing with reporters last week, Bonauto credited others with ushering marriage rights for gays and lesbians to the cusp of national recognition. “There are so many people who have been part of bringing this day forward, people who we will never know their names but have worked in their state legislatures, on ballot measures, in court cases, plaintiffs, and so on,” she said. “I’m just so grateful that we’re at a point now where we’re going to get a full and, I expect, fair hearing.”
Bonauto will argue the case with two attorneys with more Supreme Court experience: Doug Hallward-Driemeier, a Washington lawyer who has argued 15 cases before the court, and the US solicitor general, Donald Verrilli Jr.
Still, the pressures will be greater than any she has faced professionally.
Even veteran Supreme Court lawyers said they struggle to control their nerves when they step to the lectern in the center of the courtroom and see the nine justices staring down at them from their mahogany bench. Perhaps her toughest challenge will be to convince the justices that they should wade into the gay-marriage debate when public opinion on the issue is shifting so swiftly.
While Justices Anthony Kennedy, Sonia Sotomayor, Elena Kagan, Stephen Breyer, and Ginsburg may privately support same-sex marriage, “it is conceivable — just barely, I think — that not all five of them believe judicial intervention is needed to accomplish it, because the country is so clearly getting there on its own,” Klarman said.
Social conservatives said they respect Bonauto, even as they vigorously oppose her cause. “I’ve always held Mary in very high esteem,” said Kris Mineau, former president of the Massachusetts Family Institute, which opposes same-sex marriage. “She’s very capable and very talented.”
Bonauto said she believes the fight she is waging in the Supreme Court does have its roots in Massachusetts and the victory she won at the state’s high court more than a decade ago.
“There is one thing for certain that is exactly the same, which is that we’re dealing with real people, who truly have committed to one another . . . and yet they’re foreclosed from making that commitment simply because of who they are,” she said last week. “It’s a profound problem for people, and it’s why we’re at the court now.”