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Saturday, January 22, 2011

Speech: Is the Freedom to Marry Inevitable?

“Is the Freedom to Marry Inevitable?” 

January 17, 2011

University of Michigan — 25th MLK Symposium
In celebration of Martin Luther King, Jr. Day, Freedom to Marry Executive Director Evan Wolfson was invited to the University of Michigan Law School to deliver a keynote address on the struggle for civil rights in the context of marriage for same-sex couples.
Wolfson discussed the impact of Dr. King’s legacy on his life and activism and told the audience the best way to honor Dr. King’s commitment, sacrifice and hard-won gains is to end the denial of marriage for same-sex couples. He went on to ask, “Is the freedom to marry inevitable? The answer is, that is up to us. This is our time. In the name of those who came before us, in the name of those we love, in the name of those to whom we seek to leave a better country and world, let’s make it so.”

Watch Wolfson's speech here.

Martin Luther King, Jr. Keynote Address – Evan Wolfson 

University of Michigan Law School – January 17, 2011

Is the Freedom to Marry Inevitable?

It is an honor to be here with you as we gather to celebrate the inspiration of one of my
personal heroes, Martin Luther King, Jr. — an icon to us all — and to acknowledge the
inheritance given to us through the commitment, work, sacrifice, and hard-won gains of
Dr. King and many others who came before us.

Because the best way to honor that legacy left to all of us is to do our part to add to those
gains, our part to lighten the burdens of those with whom we share our precious time on
this planet and those who come after us, our part to hold America to its promise, our part
to mend the world, we must not just come together to celebrate the past, but commit to
working in the present to change the future.

Dr. King’s vision and mission, after all, were not just about addressing the immediate –
and enormous – injustices of his moment.  He wrote: 

Eventually the civil rights movement will have contributed infinitely more to the
nation than the eradication of racial injustice. It will have enlarged the concept of
brotherhood to a vision of total interrelatedness.1 

At the same time, Dr. King knew he had to do his part to change the injustices of his
moment.  In our campaigns and actions to tackle the immediate and specific, we step
toward, and contribute to, the eternal and universal.

As a law student2, inspired by America’s civil rights movements, I wrote my thesis on the
importance of ending gay people’s exclusion from marriage.  Since that was back in
1983, I suppose it’s now fair to call this a mission.  

I argued then that gay people have the same mix of reasons for wanting the freedom to
marry as non-gay people: reasons that are emotional as well as economic, personal as
well as practical, social as well as spiritual – and reasons that resonate in love as they do
in law.

I wrote that to be denied the freedom to marry is to be excluded from a powerful
vocabulary of love and commitment and what the Vermont Supreme Court later called
“our common humanity.”3  To be denied marriage is to be deprived of an important
safety-net that touches every area of life, from birth to death, with taxes in between.

 King Jr., Martin Luther. “Why We Can’t Wait.” First Signet Classic Print, New York. 1964. 142
 Amestoy, Jeffrey L. Vermont Supreme Court.
I believed that ending the denial of the freedom to marry is preeminently a question of
justice – of treating others as you would want to be treated; of fulfilling America’s
promise that everyone has the right to be both equal and different, and that no one should
have to give up her or his difference in order to be treated as equal.  And ending the
exclusion from marriage raises a question of love – helping secure for all our common
birthright, the pursuit of happiness; removing barriers and lifting burdens, making it
easier for everyone to take care of their loved ones, particularly in tough economic times
and through times of crisis, as well as life’s ordinary ups and downs.

And I concluded that you can’t say you are for equality and yet acquiesce in exclusion
from the central social and legal institution of this and virtually every society.

All prejudice, all discrimination, is painful and wrong, but as Dr. King knew4, the worst
kind of discrimination, the most intolerable, is discrimination by the government itself
against any group of us.  The denial of the freedom to marry is state-sponsored
discrimination against gay people, and we must end it.

As a young attorney at Lambda Legal, I began work in earnest on ending marriage
discrimination.  One of the very first tasks I set myself was to make people believe we
could and would win,  that triumph was inevitable.

Young as I was, I was taking a page from another inspiration, women’s struggle for
equality.  I was heeding the words of a fighter for women’s right to vote back in the
1800’s, Hubertine Auclert – the woman who coined the word “feminism” – who wrote,
“If you would obtain a right, first you must proclaim it.”5

I remember, back in the 1990’s, being in my office as my non-gay co-counsel, Dan
Foley, and I were litigating the Hawaii case that launched this ongoing global movement
for the freedom to marry.  I remember clipping newspapers and putting articles in binders
– that’s how long ago it was – any time I could get the media to report anything about
gay people’s freedom to marry.  I remember considering it a good day if even one
mention, let alone action, got recorded somewhere by someone.  

As the historic Hawaii case proceeded, it put forward the life stories of the three couples
denied marriage licenses, highlighting their love and commitment.  It prompted
Americans to, in Lincoln’s words, “think anew”6 about the reality and diversity of gay
people’s lives, and how the denial of marriage actually harms families while helping no
one.  It invited non-gay people to push past their discomfort and rise to fairness.  And it
witnessed a ferocious and sustained assault by the anti-gay opponents of equality.7  
 King, Jr., Martin Luther. “Give us the Ballot.” Prayer Pilgrimage for Freedom, Washington D.C. 17 May
 Wolfson, Evan. “Why Marriage Matters: America, Equality, and Gay People’s Right to Marry.” Simon
and Schuster, New York. 2004. 180.
 Lincoln, Abraham. “The Collected Works of Abraham Lincoln,” ed. Roy P. Basler. Rutgers University
Press, 1953. Vol. 5, 537.
 "[T] there is really no white backlash, because that gives the impression that the nation had decided it was
going to solve this problem and then there was a step back because of developments in the civil rights

With the struggle joined, hearts and minds began to change, and by the end of the 1990’s,
polls reported that 2/3’s of Americans had come to believe that gay people would win the
freedom to marry in our lifetime – something they had for the most part never even
considered just a decade before.

In the succeeding decade, the 2000’s, we, of course, went on to win the freedom to marry
– first in Massachusetts, the cradle of liberty, and, as of today, in five states and the
District of Columbia, our Nation’s Capital. 42% of Americans, over 129 million of us,
now live in states8 that provide some form of family recognition, from marriage to civil
union/partnership to respecting out-of-state marriages – up from virtually zero a decade
ago.  Same-sex couples can now marry in 12 countries9 on 4 continents – up from zero a
decade ago.  

This year, Freedom to Marry, the national campaign to win marriage nationwide, hopes
to make more big gains.10  And quite honestly, the biggest problem we face is that too
many of those who are with us in support of marriage – as of last year, a majority
nationwide – airily say that winning the freedom to marry is inevitable, thereby excusing
themselves from having to work to make it so.

(The second biggest problem we face is that the opposition – the well-funded anti-gay
machine of Freedom to Marry’s counterpart, NOM, the self-styled “National
Organization for Marriage,” those who fund it, and others – is not going away, but rather
continues to funnel money and energy into attack campaigns that serve partisan purposes
as well as ideological aims.  They know they’ve lost the argument,11 but they’ve still got
power and money and poisonous rhetoric, and they are still wielding them against gay
families, policymakers and judges, and the Constitution itself.12).

So is the freedom to marry inevitable?  There are at least three major reasons to answer

First, generational momentum.

Earlier I described the global decade of progress on marriage and gay inclusion: the
trends are clearly with those who favor the freedom to marry.

movement.  Now, the fact is that America has been backlashing on the civil rights question for centuries
now....  [T]he backlash is merely the surfacing of prejudices, of hostilities, of hatreds and fears that already
existed and they are just now starting to open."  King, Jr., Martin Luther. “Seventh Annual Gandhi
Memorial Lecture.” Howard University, Washington, D.C. 6 Nov. 1966.
In 2009, New York Times polling guru Nate Silver put forward a model that used factors
such as the year an anti-gay measure such as California’s Prop 8 is on the ballot and the
percentage of white evangelicals in the state.  Silver found13:

Unsurprisingly, there is a very strong correspondence between the religiosity of a
state and its propensity to ban gay marriage, with a particular "bonus" effect
depending on the number of white evangelicals in the state.

Marriage bans, however, are losing ground at a rate of slightly less than 2 points
per year. So, for example, we'd project that a state in which a marriage ban passed
with 60 percent of the vote last year would only have 58 percent of its voters
approve the ban this year.

All of the other variables that I looked at -- race, education levels, party
registration, etc. -- either did not appear to matter at all, or became redundant once
we accounted for religiosity. Nor does it appear to make a significant difference
whether the ban affected marriage only, or both marriage and civil unions.

Silver went on to rank the progression of public opinion in every state, and concluded
that by 2016, “only a handful of states in the Deep South would vote to ban gay marriage,
with Mississippi being the last one to come around in 2024.”  He pegged Michigan for
2013.  All assuming local conversations and continued engagement.  

The other encouraging evidence on generational momentum is, of course, the fact that
young people in virtually every demographic –including evangelicals, including those
who went to parochial schools and religiously affiliated colleges, including Republicans 
– support the freedom to marry.

Young people have grown up knowing gay people, not just stereotypes; hearing the
weakness of the arguments against marriage equality and watching them crumble; and
seeing gay people married, happiness increased, and the sky not falling.

Generational momentum – in its starkest terms, generational replacement – clearly favors
the freedom to marry.

Second, historical momentum.
In my book, Why Marriage Matters, I describe how marriage has always been a
battleground for larger questions of what kind of country this will be, including the
balance between government and the individual in making important decisions about our
lives and our pursuit of happiness, and who should get to make those decisions; the roles
of men and women, and whether they should be equal and equally free to choose those
roles; and the boundaries between church and state, and the difference between r-i-t-e-s
of marriage and the legal r-i-g-h-t to marry.

In Why Marriage Matters, I discuss the history of marriage: a history of struggle, a
history of claims of gloom and doom made against those who sought inclusion and
fairness within marriage, a history of change.

These themes were taken up recently by a historian of marriage, Stephanie Coontz, in a
Washington Post piece titled, “Gay marriage isn't revolutionary. It's just the next step in
marriage's evolution14.”

Professor Coontz’s analysis begins:

Opponents of same-sex marriage worry that allowing two men or two women to
wed would radically transform a time-honored institution. But they're way too late
on that front. Marriage has already been radically transformed - in a way that
makes gay marriage not only inevitable, as Vice President Biden described it in an
interview late last year, but also quite logical.
Professor Coontz traces that history of marriage – the shift from marriage as a property or
dynastic arrangement to a union based on love and choice of a partner, and the discarding
of “traditional” gender roles and the subordination of women – and concludes:
Today, as … noted in [the] decision striking down California's Proposition 8, …
‘gender no longer forms an essential part of marriage; marriage under law is a
union of equals.’…. If gay marriage is legally recognized in this country, it will
have little impact on the institution of marriage. In fact, the growing acceptance of
same-sex marriage - an indication that it's not just the president's views that are
[as President Obama put it recently] ‘evolving’15 - is a symptom, rather than a
cause, of the profound revolutions in marriage that have already taken place.

Historical changes in marriage, our understanding of what liberty, equality, and the
pursuit of happiness mean and who should be able to share in them, all support the
freedom to marry.

Third, in favor of the inevitability of the freedom to marry there is moral
During last year’s federal trial challenging Proposition 8, which stripped away gay
couples' freedom to marry in California, Chief Judge Vaughn Walker asked Charles
Cooper16, the attorney defending Prop 8, "What would be the harm of permitting gay men
and lesbians to marry?" Cooper replied, "Your Honor, my answer is: I don't know ... I
don't know."17 
 Wolfson, Evan. “Single-Sex Marriage: The Proposer’s Opening Remarks,” The Economist. Jan. 3, 2011.
That pivotal exchange, and indeed the whole trial, showed that opponents of the freedom
to marry are not able to defend their opposition on the merits.  As in our freedom to
marry trial in Hawaii in 1996, the opponents came into court with no evidence, made no
coherent and non-tautological arguments, and have nothing to back up their scare-tactic
When I was in law school, they taught us: If the law is against you, argue the facts. If the
facts are against you, argue the law. If neither's on your side, pound the table18.
A "pound the table" strategy is exactly what opponents have opted for in court cases, in
waves of ballot-measure attacks, and in the dust they throw up through the media.  Check
this out – The Economist magazine hosted an extended debate between NOM’s Maggie
Gallagher and me last week.19   Go and read the back and forth on The Economist
website20 and you will see why she and other opponents of gay people's freedom to marry
have shifted to a succession of distractions: stoking fears about kids, making false claims
about infringement on religious freedom, drumming up allegations of harassment and
violence, and concocting contorted arguments about how we must deny gay couples the
freedom to marry in order to fight “accidental procreation” by heterosexuals.  
Distractions are all they’ve got left – that, and the power and money to pound the table
and the gays.
As we’ve seen now in places from Massachusetts to Iowa, Canada to Mexico, Israel to
Argentina, when marriage discrimination ends, the world does not.  Gays do not use up
the marriage licenses.  Families are helped, and no one is hurt.
Gay people, of course, are not the first to fight against discrimination, and not even the
first to have to fight exclusion and discrimination on the human rights battleground that,
as Why Marriage Matters shows, marriage has always been.  Race restrictions on who
could marry whom, like women’s subordination in marriage, were ferociously defended
by churches, the law, and even public opinion; were viewed as natural, necessary, and
part of the “definition” of marriage; and only ended with a struggle.21
Another civil rights icon, John Lewis, quoted Dr. King when Congressman Lewis fought
against the federal anti-marriage law, the so-called “Defense of Marriage Act” back in
Dr. Martin Luther King, Jr., used to say when people talked about interracial
marriage, and I quote, “Races do not fall in love and get married. Individuals fall
in love and get married.”22
 Why Marriage Matters, 2004, 60.
 Lewis, John. Defense of Marriage Act. Congressional Record, 11 July 1996. 
The first court to strike down race restrictions on marriage put it this way: “the essence of
the right to marry is freedom to join in marriage with the person of one's choice.”  Each
person seeking a license to marry the “wrong” kind of person, the justices said, “finds
himself barred by law from marring the person of his choice and that person to him may
be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would
make them as interchangeable as trains.”23 
Because of these powerful moral truths about why marriage matters, and the powerful
moral claim to fairness they entail, Coretta Scott King was an early supporter of the
freedom to marry.  She declared:
My husband, Martin Luther, King, Jr., understood that all forms of discrimination
and persecution were unjust and unacceptable for a great democracy. He believed
that none of us could be free until all of us were free, that a person of conscience
had no alternative but to defend the human rights of all people.... The civil rights
movement that I believe in thrives on unity and inclusion, not division and
exclusion.  All of us who oppose discrimination and support equal rights should
stand together to resist every attempt to restrict civil rights in this country.24
So is there moral momentum for the freedom to marry?  
Well, Bill Clinton,25 the president who signed so-called “DOMA” into law back in 1996,
has now joined Freedom to Marry in calling for DOMA’s overturning and now supports
marriage equality, as do Laura Bush and even, God help us, Glenn Beck.26 When we
were doing the Hawaii case and battling over DOMA in the 1990’s, polls showed 26% of
Americans favored the freedom to marry.  Last year, not one but two national polls27
reported that now 52% of Americans – a majority nationwide – now are with us, and
those who oppose equality and inclusion for gay people are in the minority.
As Dr. King put it most movingly, “Truth crushed to earth will rise again….  The arc of
the moral universe is long but it bends toward justice.”28  
So is the freedom to marry inevitable?

Again, we turn to Dr. King.  He cautioned us: 

 Perez v. Sharp. California Supreme Court. Oct. 1, 1948. 32 Cal.2d 711, 198.
 Speaking at a Lambda Legal event in 2002, Mrs. King repeated her strong commitment to inclusion and
belief that gay rights are part of civil rights: “I still hear people say that I should not be talking about the
rights of lesbian and gay people and I should stick to the issue of racial justice… But I hasten to remind
them that Martin Luther King Jr. said, ‘Injustice anywhere is a threat to justice everywhere.’” “A Seat at the
Table: Struggles for Equality in America,” New York: Oxford University Press, 2001. 138
Human progress is neither automatic nor inevitable... Every step toward the goal
of justice requires sacrifice, suffering, and struggle; the tireless exertions and
passionate concern of dedicated individuals.29

And in his Letter from a Birmingham Jail, Dr. King wrote: 

Human progress never rolls in on wheels of inevitability; it comes through the
tireless efforts of men willing to be co-workers with God, and without this hard
work, time itself becomes an ally of the forces of social stagnation.30

It was complacency and faith in inevitability that allowed the anti-gay forces to prevail in
the Prop 8 battle in California.  Too many non-gay people – indeed, too many gay people
– just assumed that we were going to win, that making the case was superfluous because
the truth is so obvious, that rights could not be stripped away, and that momentum and
time would take care of needed change.

In Argentina, the most recent – and, to many, most surprising – country to end marriage
discrimination, President Cristina Kirchner knew that the change was necessary not just
as a matter of fairness and dignity for gay people, but as an essential step in the
maturation and securing of constitutional democracy itself. She said, in 201031:

The opponents are portraying this as a religious moral issue and as a threat to ‘the
natural order,’ when what we are really doing is looking at a reality that is already
there….It would be a terrible distortion of democracy if they denied minorities
their rights.

Prime Minister Jose Zapatero said something very similar when he hailed the advent of
the freedom to marry in Spain in 2005:32

It is true that [gay people] are only a minority, but their triumph is everyone's 
triumph.  It is also the triumph of those who oppose this law, even though they do
not know this yet: because it is the triumph of Liberty.  Their victory makes all of
us (even those who oppose the law) better people, it makes our society better.

But in Spain, in Argentina, in South Africa, and other places that have led in our
movement for the freedom to marry, leaders and advocates know from their history and
their struggles that democracy, human rights, constitutional guarantees of law and
equality, and progress itself are not handed to anyone, and do not defend themselves. 
They must be fought for and tended and guarded, and, as Frederick Douglass wrote:
 Phillips, Donald Thomas. “Martin Luther King Jr. On Leadership: Inspiration and Wisdom for
Challenging Times.” New York: Warner Books, 2001. Part II.(King, Martin Luther, Jr. 1959)
 "Letter from Birmingham Jail." Encyclopædia Britannica. Encyclopædia Britannica Online.
Encyclopædia Britannica, 2011. Web. 18 Jan. 2011.

Those who profess to favor freedom and yet depreciate agitation, are people who
want crops without plowing the ground; they want rain without thunder and
lightning; they want the ocean without the roar of its many waters. Power
concedes nothing without a demand; it never has and it never will.33

Just fifteen years ago, in the midst of our Hawaii freedom to marry case and the battles in
Congress over so-called “DOMA,” many people, gay and non-gay, believed, and loudly
asserted, that the idea of what they wrongly labeled “gay marriage” was impossible. 
Now, most believe it inevitable.

We’ve gone in a historical eye-blink from Impossibility to Inevitablity – and somehow
skipped over the part where we must do the work.

Is the freedom to marry inevitable?    The answer, yes or no, hinges on the difference
between, say, 5 years and 50 years.  If the question is will the cumulative effect of other
people’s actions, other people’s coming of age, other forces , and the very flow of time
itself waft us to justice eventually, without us having to work for it … yes, maybe – if
you want it in 50 years.

But if the question is, can we make it happen now, in 5 years, the answer is, yes –if we
each make a personal commitment and join the collective effort to do the work, to have
the conversations, to make the case.  There is no marriage without engagement – not in
the United States, not in Michigan.

Freedom to Marry is the national campaign to win, and has put forward its Roadmap to
Victory.  Read it on our website.  It’s up to us to march it, not wait to be carried or watch
change waft along.

As Dr. King told us in that same Letter from a Birmingham Jail, “We must use time
creatively, in the knowledge that the time is always ripe to do right.”34 35

Civil rights leader Dorothy Height, whom we lost last year, told us, “If the time is not
ripe, we have to ripen the time."36 37

Is the freedom to marry inevitable?  The answer is, that is up to us.  This is our time.

In the name of those who came before us, in the name of those we love, in the name of
those to whom we seek to leave a better country and world, let’s make it so.
 Douglass, Fredrick. “An Address on West India Emancipation.” Aug. 4, 1857.
 Emphasis added.
 “Letter from Birmingham Jail."
 Emphasis added.
 “Dorothy Height, Female Civil Rights Leader, Dies” The Associated Press. Retrieved from 


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