The long road ahead

The following is excerpted from a speech Wolfson delivered on September 30 at the National Lesbian and Gay Law Association's Lavender Law Conference, an annual gathering of attorneys, legal academics, and law students. Find the full speech on the Freedom to Marry Web site.One of the good things about my job [as executive director of the Freedom to Marry coalition] is, I have plenty of time on planes and trains in which to read.Right now I'm reading the Library of America's anthology Reporting Civil Rights. In two volumes, they've collected the journalism of the 1940s, '50s, '60s, and '70s describing the blow-by-blow, the day-to-day, of what the struggles of those years felt and looked like--before those living through that moment knew how it was going to turn out.Exhilarating, empowering, appalling, and scary.That's what a civil rights moment feels like when you are living through it--when it is uncertain and not yet wrapped in mythology or triumphant inevitablism.This year our nation celebrated the 50th anniversary of Brown v. Board of Education [the U.S. Supreme Court decision overturning the policy of "separate but equal" public schools].But what followed Brown was not the sincere and insincere embrace it gets today, but--in the words of the time:

• legislators in a swath of states declaring "massive resistance,"
• billboards saying IMPEACH EARL WARREN, the then-chief justice who wrote the decision,
• members of Congress signing resolutions denouncing "activist judges" (sound familiar?),
• and, of course, the marches, Freedom Rides, organizing summers, engagement, hard work, violence, legislation, transformations--pretty much everything we, today, think of as the civil rights movement--all after Brown.

America is again in a civil rights moment--as same-sex couples, their loved ones, and nongay allies struggle to end discrimination in marriage. A robust debate and numberless conversations are helping our nation (in Lincoln's words) "think anew" about how we are treating a group of families and fellow citizens among us. Today, it is gay people, same-sex couples, LGBT individuals and their loved ones, and nongay allies--we--who are contesting second-class citizenship, fighting for our loved ones and our country, seeking inclusion and equality...and it is scary as well as thrilling to see the changes and feel the movement.How can we get through this moment of peril and secure the promise?

There are lessons we can learn from those who went before us--for we are not the first to have to fight for equality and inclusion. In fact, we are not the first to have to challenge discrimination even in marriage.You see, marriage has always been a human rights battleground on which our nation has grappled with larger questions about what kind of country we are going to be:

• questions about the proper boundary between the individual and the government,
• questions about the equality of men and women,
• questions about the separation of church and state,
• questions about who gets to make important personal choices of life, liberty, and the pursuit of happiness.

As a nation, we have made changes in the institution of marriage and fought over these questions of whether America is committed to both equality and freedom in at least four major struggles in the past few decades:

• We ended the rules whereby the government, not couples, decided whether they should remain together when their marriages had failed or become abusive. Divorce transformed the so-called "traditional" definition of marriage from a union based on compulsion to what most of us think of marriage today: a union based on love, commitment, and the choice to be together and care for one another.
• We ended race restrictions on who could marry whom [that were] based on the traditional "definition" of marriage--defended as part of God's plan, seemingly an intractable part of the social order of how things have to be.
• We ended the interference of the government in important personal decisions such as whether or not to procreate, whether or not to have sex without risking a pregnancy, whether or not to use contraceptives--even within marriage.
• And we ended the legal subordination of women in marriage, thereby transforming the institution of marriage from a union based on domination and dynastic arrangement to what most of us think of it as today: a committed partnership of equals.

Yes, our nation has struggled with important questions on the human rights battlefield of marriage, and we are met on that battlefield once again.As in any period of civil rights struggle, transformation will not come overnight. Rather, the classic American pattern of civil rights history is that our nation goes through a period of what I call in my book, Why Marriage Matters, "patchwork."During such patchwork periods, we see some states move toward equality faster, while others resist and even regress, stampeded by pressure groups and pandering politicians into adding additional layers of discrimination before--eventually--buyer's remorse sets in and a national resolution comes.So here we are in this civil rights patchwork. On the one hand, as the recent powerful and articulate rulings by courts in Washington and New York states demonstrated in the past few weeks, several states are advancing toward marriage equality, soon to join Massachusetts in ending discrimination and showing nongay Americans the reality of families helped and no one hurt.Meanwhile, on the other hand, as many as a dozen states, targeted by opponents of equality as part of their own ideological campaign and for their political purposes, could enact further discriminatory measures this year, compounding the second-class citizenship gay Americans already endure.These opponents--anti-marriage equality, yes, but also, antigay, anti-women's equality, anti-civil rights, anti-choice, and anti-separation of church and state--are throwing everything they have into this attack campaign because they know that if fair-minded people had a chance to hear the stories of real families and think it through, they would move toward fairness, as young people already have in their overwhelming support for marriage equality.Most important, as Americans:

• see the faces and hear the voices of couples in San Francisco,
• witness the families helped and no one hurt in Massachusetts, and digest the reassuring way in marriage equality is already finding acceptance there after just a few months,
• [and] engage in conversations in every state, and many families chat with people like us and nongay allies...

Hearts and minds are opening, and people are getting ready to accept, if not necessarily yet fully support, an end to discrimination in marriage.