The U.S. Supreme Court ruling last week legalizing same-sex marriage in all 50 states was a “transformative” development that should be seized upon by the LGBT rights movement to secure the passage of a federal LGBT civil rights bill much broader than the one now stalled in Congress.
That’s the assessment of Evan Wolfson, founder and president of Freedom To Marry, the New York-based advocacy organization credited with playing a key role in advancing marriage equality across the country since its launching in 2003.
“We now have won the freedom to marry as a matter of law,” Wolfson told the Washington Blade in an interview on the day the Supreme Court issued its landmark ruling.
“But the conversation is only now arriving to many parts of the country,” he said. “And since we’ve seen its transformative power we want to harness it, to build on it going forward, not turn away from it,” Wolfson said.
“And then while doing that we want to map out and begin calling to action the work of winning non-discrimination protections, particularly a federal civil rights bill that would prohibit discrimination on the basis of sexual orientation and gender identity much like federal civil rights law prohibits discrimination on the basis of race and sex and religion.”
Wolfson pushed for same-sex marriage rights through litigation beginning in 1991 in Hawaii, when many in the gay rights movement said the country was not ready for it. Now, following the sweeping victory on marriage equality, he may once again be ruffling some feathers among the establishment LGBT groups by pushing for legislation far broader than the Employment Non-Discrimination Act, or ENDA, which has long been stalled in Congress.
A number of LGBT rights strategists, including former U.S. Rep. Barney Frank (D-Mass.), have said limiting the initial legislation like ENDA to just employment protections was needed because congressional allies did not have the votes needed to pass a broader bill. Wolfson said he believes LGBT organizations are now ready to push for a broader bill.
“And what we need to be pursuing is not ENDA, not only employment protections but comprehensive civil rights protections,” he said. “And I think there’s this pretty strong agreement amongst most of the major organizations and advocates that what we want is the same kind of explicit federal protections for sexual orientation and gender identity that we have for race and sex, religion and other classifications that should not be used to justify discrimination.”
In keeping with an earlier promise, Wolfson said Freedom To Marry will be closing its doors soon because it has fulfilled its mission.
“Freedom To Marry was created as a campaign to drive the winning strategy,” he said. “And the strategy aimed at the goal of winning marriage equality nationwide. And today of course we hit our goal,” he said.
“And so Freedom to Marry will over a matter of months do a smart, strategic wind-down and close. The work of this campaign has now been achieved,” he said. “But the work of the movement is far from over.”
Evan Wolfson on the Supreme Court’s June 26 landmark ruling on marriage equality and what’s next for the LGBT rights movement:
Blade: What are your thoughts on the significance of the Supreme Court’s decision today on marriage equality?
Wolfson: Well we’ve transformed the country to get to this day. And there will be an additional transformation going forward because the power of winning marriage and the clarity and strength of the majority opinion signal that the day of the gay exception is over.
Blade: Do you think opponents of marriage equality will be able to claim the closeness of the vote – it was a 5-4 decision – detracts from the strength of the decision?
Wolfson: No, a 5-4 decision is a win. And I think the majority had the better of the arguments and the dissents are surprisingly tinny and out of touch with the American people and out of touch with the Constitution. Remember, we won 67 or so rulings even before today. And all of these judges found what Justice Kennedy found. So I think we have the better of the legal argument and the constitutional argument and we have a better connection with where the American people have moved. But at the end of the day, a Supreme Court decision is a win. And a win is a win.
Blade: Were those 67 decisions both U.S. district courts and appeals courts?
Wolfson: District and appellate, state and federal – Republican judges as well as Democratic judges. And all of them found what Justice Kennedy found. So I think it’s clear. We’ve moved the American people. We now have the Supreme Court clearly on the side of fairness. And the Constitution commands the freedom to marry and equality under the law. And that includes gay people.
Blade: What, if anything, will have to happen next to clear the way for same-sex couples to marry in the 13 states that did not recognize marriage equality?
Wolfson: I’ve been running around today and haven’t been able to fully monitor everything. But we have on our website our map, which we’re carefully monitoring and tracking the rolling forward and implementation of this decision. And so far I’ve not heard of any problem. And I think it will mostly proceed without problems very quickly. It is a big country. So if there’s an occasional instance of foot-dragging or acting out we will deal with it. But I expect that the vast majority of public officials will follow the law, and the American people are already there.
Blade: Will we see some cases in which a recalcitrant county clerk or marriage bureau official refuses to issue a marriage license because it’s against their religious beliefs?
Wolfson: I think there will be very, very little of that. And after all, when a clerk or an official draws a salary from the taxpayers it’s their duty to serve the taxpayers. And when you take an oath to serve the public it’s your duty to serve the public. And I think that’s clear. And if there is any problem, again, we will deal with it. But I think the overwhelming response is going to be positive and happy and joyous. It’s only going to get better as it goes.
Blade: Can you tell a little about your involvement in the early years of the marriage equality movement? You go back to when Hawaii became the first state where litigation was used to attempt to legalize same-sex marriage.
Wolfson: The Hawaii case was in the ‘90s. It began in 1991 and it ran through 1999. And of course my involvement with the freedom to marry began really a decade earlier when I wrote my thesis advocating for the freedom to marry back in 1983. I’ve been working on this for 32 years. And we’ve obviously had many steps forward and many stumbles and happy years and difficult years. But I always believed we would win if we kept doing the work. And today America proved me right.
Blade: What’s next for you? You have said that if the Supreme Court ruled as it has today you would eventually disband Freedom to Marry as an organization. Is that still the plan?
Wolfson: Yeah. Freedom to Marry was created as a campaign to drive the winning strategy. And the strategy aimed at the goal of winning marriage nationwide. And today of course we hit our goal. And so Freedom to Marry will over a matter of months do a smart, strategic wind-down, and close. The work of this campaign has now been achieved. But the work of the movement is far from over.
Blade: Do you have any thoughts on what the movement should do next?
Wolfson: I do. I think two big priorities for the movement right now are, number one, to harness the power of the marriage win to bring that conversation – reclaiming this vocabulary of marriage and the visibility it gives to couples and the empathy and understanding it awakens to seize that and bring it to the parts of the country where we will only have just begun. We now have won the freedom to marry as a matter of law. But the conversation is only now arriving to many parts of the country.
And since we’ve seen its transformative power we want to harness it, to build on it going forward, not turn away from it. And then while doing that we want to map out and begin calling to action the work of winning non-discrimination protections, particularly a federal civil rights bill that would prohibit discrimination on the basis of sexual orientation and gender identity much like federal civil rights law prohibits discrimination on the basis of race and sex and religion.
And while pursuing a federal bill we also want to win as many state and local non-discrimination measures as possible, both because they’re important in their own right and because they can be a building block – building blocks to the federal protections that we need. And the one other thing that I would add is that while doing all that legal and political work hopefully with the same kind of campaign focus we eventually brought to the marriage work, we should be remembering that it’s not just about the law. It’s also about improving people’s lives, making sure kids are growing up safe and secure and able to dream, making sure that seniors are aging with dignity and not forced back into the closet because we don’t have the facilities and services to help them. So it’s about lives, not just laws.
Blade: Speaking about laws, today we heard some of the Republican presidential candidates say they will push for a constitutional amendment to overturn this Supreme Court ruling. What are your thoughts on the chances of that happening?
Wolfson: I think the chances of that happening are even less than the chances of some of those same guys ever getting the presidency.
Blade: Is that because you feel the sentiment in the country is such that the required three-fourths of the state legislatures would not pass a constitutional amendment of this kind?
Wolfson: The American people support the freedom to marry by more than 60 percent and it’s only going to grow. The latest poll two days ago reported that 57 percent wanted the Supreme Court to rule nationwide as a matter of a constitutional right. It’s going to be a little difficult going from that level of support with all the facts on the ground of couples married and complete happiness and nothing bad happening – and turning all of that into the three-quarters support for a constitutional amendment to cement discrimination that the American people don’t favor in the first place is not going to happen. They are demagogueing to their base and history will not judge them kindly and nor will the polls today.
Blade: Concerning a federal LGBT civil rights bill, you’ve been credited with pushing the envelope by advocating for marriage equality in the early 1990s starting with Hawaii. Are the establishment LGBT rights groups being too timid in pushing for the Employment Non-Discrimination Act, or ENDA, which is limited to just employment protection? Should we be adding housing and public accommodations protections to ENDA?
Wolfson: I’m not talking about ENDA. On ENDA – many of us came out against the version that others were pursuing. And what we need to be pursuing is not ENDA, not only employment protections but comprehensive civil rights protections. And I think there’s this pretty strong agreement amongst most of the major organizations and advocates that what we want is the same kind of explicit federal protections for sexual orientation and gender identity that we have for race and sex, religion and other classifications that should not be used to justify discrimination.
Blade: Do you think we are now beyond where we were in past years when some black civil rights leaders objected to opening up the Civil Rights Act of 1964 to an amendment to add protections for gay people out of fear that opponents of civil rights would try to weaken that law for blacks and others who are covered by the law?
Wolfson: I think you are kind of mixing two different things. One is the broader point I’m making, which is that we should be pursuing federal civil rights protections across the board. The question of how you do that as a matter of legislative drafting – whether you do it by amending civil rights statute or whether you have another bill that goes alongside those bills like, for example, what we did with the ADA, the Americans With Disabilities Act — that’s a different question. And that I think we will sort out hopefully soon. But we don’t have to start that today.
What I’m saying today is our goal should be a federal civil rights law that prohibits discrimination broadly on the basis of sexual orientation and gender identity. The question of the mechanics of how to do that is something we will turn to in the weeks ahead. And others will hopefully build the same kind of campaign to drive that strategically as we did with the freedom to marry.
Blade: And we feel the country is ready for that now?
Wolfson: Well not only do I feel the country is ready, I think the polling shows nearly 90 percent support for non-discrimination protections. The challenge is that the American people don’t fully realize that we don’t already have it. So what we need is a robust conversation and a smart campaign to get what the majority already favors passed into law. With marriage we had a bigger challenge. We first had to persuade the majority. Then we had to bring it into law. We’re ahead of the game here. We just have to get the kind of campaign and the kind of commitment and the smart strategy underway.
Blade: People like former Rep. Barney Frank have been saying we didn’t have the votes to do that in Congress.
Wolfson: Well that may have been true at one time but that doesn’t mean you just stop. It means you start. Go get the votes.
Blade: Is there anything else you’d like to add to the importance of the Supreme Court ruling today?
Wolfson: I think this is a real epic transformation from a despised minority to the freedom to marry. And now we need to build on that and keep going. And it’s a real win for gay people; but it’s as profoundly a win for America. Everybody won today.