For Mary Bonauto, the U.S. Supreme Court ruling in favor of same-sex marriage marked the end of a long effort that began after an initial victory 12 years ago.
Bonauto, who was the oralist in the Obergefell v. Hodges case that brought marriage equality to all 50 states, also served as lead attorney in the 2003 Massachusetts case of Goodridge v. Department of Public Health that won same-sex marriage in the Bay State, making it the first in the nation to allow gay nuptials.
Looking back at her involvement in both historic cases during an interview with the Washington Blade, the Maine-based lawyer who serves as civil rights director for Gay & Lesbian Advocates & Defenders said, “there are obvious similarities and differences,” but the litigation boils down to the same principles of due process and equal protection.
“The same themes and principles are in our state constitution and in the U.S. Constitution,” Bonauto said. “That’s part of what the 14th Amendment is all about. So, the legal principles are the same…real people whose lives are dramatically affected about whether they can participate in marriage or not. I think the…legal principles are identical even though they’re different constitutions.”
But a key difference between the two cases is that before the Goodridge decision, no state in the country afforded marriage to same-sex couples. After the Obergefell ruling, those rights are guaranteed to same-sex couples wherever they go in the country.
In the aftermath of the Supreme Court decision, Bonauto acknowledged a kind of bookend feeling about the years-long endeavor, which started even before the Massachusetts decision during an earlier attempt to win marriage equality in Vermont that resulted in civil unions for the state.
“There’s a way in which that it’s incredible to sort of open the door and break that historic barrier at a state level and then obviously to break that historic barrier at a national level,” Bonauto said. “It’s incredible. It’s a real honor, and because millions of people made it happen, I don’t want to get carried in my own role. I am aware of how many people have worked so far to make this day come into being.”
Marc Solomon, national campaign director for Freedom to Marry, worked with Bonauto 12 years ago in his role leading MassEquality during the marriage equality fight in Massachusetts and more recently to win same-sex marriage nationwide before the Supreme Court.
“There’s a reason Mary Bonauto is one of two people I dedicated my book ‘Winning Marriage’ to,” Solomon said. “She’s a true warrior for the cause — unwilling to accept no for an answer and yet in for the long haul, knowing that real social change takes relentless persistence over many years. Mary refused to settle for civil unions in Vermont and drove forward the historic marriage case in Massachusetts. She and I partnered up in the State House to kill two constitutional amendments that would have undone the decision. And then she refused to accept the federal government’s refusal to respect those marriages, putting together a multi-pronged strategy to undo DOMA. To me, it was profound poetic justice that the legal teams asked Mary to argue the ultimate question before the Supreme Court — she’d earned it, and she nailed it.”
On the day of oral arguments on April 28, Bonauto had never argued before the U.S. Supreme Court. But she said preparation from each of the legal groups and private counsel involved in the cases assuaged the daunting stress of the task.
“I’ve always felt enormous responsibility for any case I’ve argued,” Bonauto said. “That’s both the joy and the terror of working in an LGBT legal organization where you’re really trying to break down barriers to secure equality and justice for people, so there’s a way in which the feeling was familiar. But I will say this, there are many people who offered their support and encouragement and advice.”
In some respects, Bonauto said the advice was dead wrong. She recalled an adviser telling her U.S. Associate Justice Anthony Kennedy would be very quiet during the argument, which ended up being wrong, as he posed questions during the arguments for and against finding a constitutional right to same-sex marriage. But Bonauto said that false prediction didn’t matter because she received many ideas on approaching the argument and valued each of them.
“One question that stays with me is Justice Kennedy when he suggested a possible analogy between the trajectory between Brown v. Board of Education and Loving v. Virginia on one hand, and Lawrence v. Texas — which, of course, many people view as our Brown v. Board of Education — and the arguments then before the court,” Bonauto said. “I do think that analogy is apt and tried to deepen it by saying the similarities go further in terms of how the issues have been tested. Gay people’s citizenship has been contested for a very long time, even to the point where marriage cases have been before the court previously in the case of Baker v. Nelson.”
Media reports, including an article in March in the National Law Journal, indicated the attorneys involved in the marriage litigation before the Supreme Court were in dispute over the best person to designate as oralist. At one point, attorneys representing same-sex couples asked the court to allow divided time for each of them to argue before the court, but in the end Bonauto was chosen to argue against state prohibitions keeping same-sex couples from marrying.
Bonauto had no comment on the dispute or why she was designated to argue before the Supreme Court in the cases.
“As you know, we’re not really discussing that,” Bonauto said. “The bottom line is there are many capable people who could have done it, and this is where we landed. So, I really don’t want to say anything more on that.”
Also arguing before the court in favor of same-sex marriage was U.S. Solicitor General Donald Verrilli, whom Bonauto said “did a terrific job” both in briefing and argument, and Doug Hallward-Driemeier, who argued before the court that states must recognize same-sex marriages performed elsewhere.
Twelve years ago, Bonauto learned about the Massachusetts decision on same-sex marriage after obtaining a copy of the ruling, erroneously believing at first she had lost the case because she had turned to the dissenting opinion. She realized the truth of her victory after turning to the majority opinion.
There was no room for such confusion with the Obergefell decision because she found out about the ruling on June 26 in the courtroom after Chief Justice John Roberts announced Kennedy had the opinion in the case.
“When the chief announced that it was Obergefell, really you could just sort of feel the change in the room, and you also just heard at the point, you could have a heard a pin drop,” Bonauto said. “Honestly, I was sitting next to people who I knew stopped breathing for a period of time, and then eventually you began to heard sniffling and one person was actually sobbing when the decision was read.”
But Bonauto said she was struck by Roberts, who read his first-ever dissent from the bench, when he said the Constitution had nothing to do with the victory for same-sex marriage. As she prepared to address the crowd and media waiting before the Supreme Court, Bonauto said she “wanted to make clear that the Constitution had everything to do with it.”
“I was pretty excited,” Bonauto said. “Everybody else was excited, too. It turned out I couldn’t go down out the front door. For some reason, they closed the front doors and they routed us out a side door, but we eventually connected with the people from the other states, from Ohio and Kentucky. It was beautiful.”
Reflecting on the majority opinion, Bonauto said she thought Kennedy’s attention to the personal aspects of the cases and details of plaintiff same-sex couples was powerful.
“Having read it now a number of times, one of the interesting things that really jumps out at me is how the majority opinion clearly talks about gay and lesbian people, same-sex couples,” Bonauto said. “It talks about the petitioners a number of times in various cases as the flesh and blood who we are. By contrast, each of the court’s dissenting opinions never really address the petitioners.”
Questions remain about the extent to which Obergefell v. Hodges will prove useful for LGBT advocates in subsequent litigation, such as potential challenges to non-discrimination laws or religious freedom measures seen to enable anti-LGBT discrimination.
Much like the other gay rights decisions Kennedy has written, no mention in the Obergefell decision is made of level of scrutiny, such as whether laws related to sexual orientation should receive heightened scrutiny in the court system, nor does Kennedy bring up animus.
But Bonauto said “there is a very robust equality portion of the opinion” and noted that each of the four criteria for a classification to receive heightened scrutiny are present in the decision: a history of discrimination, immutability, political powerlessness and a distinguishing characteristic that doesn’t inhibit the group from contributing to society.
“All four of the heightened scrutiny factors are mentioned in the opinion, leading to the question of well, maybe the court is wanting the lower courts to develop this issue,” Bonauto said. “You can drill down on Obergefell if you want to, and you should, but at the same time where the court has essentially said if you treat gay people or same-sex couples differently from everyone, it is not permissible under the Constitution. Four times in 20 years.”
What’s next? Bonauto cited a long list of potential areas, including passage of a federal non-discrimination bill, work to highlight issues facing LGBT youth, parenting issues for same-sex couples and transgender visibility.
“Cutting across all of this are the severe discrimination experienced by trans people, the disproportionate poverty rates in the LGBT community, particularly for women and persons of color,” Bonauto said. “The U.S. and DOJ could consider more trainings to ensure hate crimes are reported and prosecuted, including ensuring that anti-LGBT crimes are in fact reported as what they are. Immigration reform would affect many LGBT people.”
But for the time being, Bonauto said the ruling for same-sex marriage nationwide is a milestone decision for same-sex couples and the nation as a whole.
“Fears and moral type objections, traditions could not carry the day when it comes to denying people the Constitution and equal right to marry, and culturally what that meant was equality,” Bonauto said. “I think this decision is very powerful for us to make sure that we should be able to live lives with the same freedoms and opportunities [as others], but really there’s so much we have to do to make that a reality after this court decision.”