Mary Bonauto is a lawyer for Gay and Lesbian Advocates and Defenders (GLAD), who is often referred to as the Thurgood Marshall of the LGBT rights movement. Since joining GLAD in 1990, Bonauto has litigated on matters such as marriage equality and employment discrimination. Bonauto was lead counsel in Goodridge v. Department of Public Health, which in 2004 made Massachusetts the first state in the U.S. to allow same-sex marriage. Recently, Gill v. Office of Personnel Management, a case in which she successfully argued to repeal the federal Defense of Marriage Act (DOMA), was submitted for review before the U.S. Supreme Court. Bonauto also assisted litigators for United States v. Windsor, the DOMA case the Court ultimately chose to consider this term.
The Politic: News profiles have portrayed you as an astute strategist for the marriage equality movement, especially in terms of choosing which cases to pursue. What have been the most important elements of your strategy to advance marriage rights for same-sex couples?
It’s not so much my strategy as GLAD’s approach to our work. We see litigation in a larger cultural context and as a critical tool that cannot be used in isolation. In short, “we” must engage all branches of government and the critical court of public opinion about why different standards and rules for LGBT people, or whatever we’re litigating, contravenes our core constitutional guarantees and makes no sense in light of our shared values. With marriage litigation, you need to be immersed in the state law and culture. With DOMA, we spent years studying how the federal government has dealt with marriage generally in the context of numerous programs. We also work backwards from where we want to be to think about all of the groundwork and steps we need to take to reach our goals. That affects when and what we file. And we never forget that this is not a chess game. The heart and soul of this movement is real people who need their government to treat them equally and fairly.
The Politic: According to Gallup, support for same-sex marriage has increased from 37 percent in 2005 to 53 percent this month. To what do you attribute this dramatic increase in support? Do you expect support to keep growing at this pace?
I expect support to continue rising, although I cannot predict the pace. More and more Americans are seeing marriages of same-sex couples and experiencing the joy. The reality on the ground overcomes fears and counters stereotypes. Another [reason] is that some of the hot button issues are fading, at least in some places. Despite the attempt to make martyrs out of business owners who refuse to comply with non-discrimination laws, many people understand it is wrong to use religion to discriminate against people. Demographics clearly matter in terms of younger people knowing and supporting equality, but the good news is that every demographic group is engaged and changing.
The Politic: It has been nine years since Massachusetts became the first state to issue marriage licenses to same-sex couples as a result of Goodridge v. Department of Public Health, a case in which you argued successfully on the side of marriage equality. Have you observed any secondary effects that legalizing same-sex marriage has had on Massachusetts (e.g. more cultural acceptance of homosexuality, economic changes, etc.)? Have there been any difficulties in enforcing the ruling?
First of all, there is no doubt that the Goodridge decision, and the state’s support for the decision by refusing to amend the constitution, has lifted us up. Many people thought they would never see such a decision in their lifetimes; instead the Massachusetts ruling became a beacon of fairness and equality for LGBT people nationwide. In terms of other effects, several scholars have commented to me that by fighting so hard to participate in marriage, same-sex couples have helped to reinforce the best ideals of marriage. Because Massachusetts broke an historic barrier and the nationally-coordinated attempts to amend the state constitution were so ferocious, I think people have here have broken down stereotypes and helped make LGBT people more genuinely part of the larger community. It’s also been huge for children, who certainly understand the message of inferiority of their families when their parents are not allowed to marry. In addition, there has been a positive effect on the state’s fiscal health. Marriage of same-sex couples is estimated to have contributed about $111 million to Massachusetts’ economy in the first five years, and the Williams Institute has estimated even larger gains (about $166 million) for the Maine, Maryland, and Washington economies in the next five years.
The Politic: As you know, Hollingsworth v. Perry and United States v. Windsor deal with California’s Proposition 8 and the federal Defense of Marriage Act (DOMA), respectively. Do you think that one of these cases has more potential practical significance than the other?
Each is critically important. Perry addresses the right to marry, and denying marriage to gay people denigrates us and can be a soul-scarring experience. Even if the Prop. 8 case results in a “California-only” ruling, it would be a great victory to restore marriage to our largest state. DOMA treats already-married same-sex couples as though they are single for all federal purposes, cutting them out of spousal protections in the federal safety net. DOMA is also a national statement of disapproval of same-sex couples and gay people generally. Remember, the official House Report specifically stated that one of DOMA’s purposes was to express disapproval of homosexuality. Overturning DOMA would help married families, end the current regime of second-class marriages for gay people, and go a long way to ending second-class citizenship of gay people.
The Politic: Are you at all disappointed that the DOMA case the Supreme Court decided to hear was not the one that you successfully argued before the federal appeals court?
“At all disappointed?” In a minimal way only. We’re all in this together. The Windsor team could not have been more welcoming of my and GLAD’s assistance, so we were able to contribute substantially. When the possible recusal of Justice [Elena] Kagan came to light (regarding GLAD’s Massachusetts case issue), I preferred — like any sane person — that the full court hear a DOMA case rather than only eight justices.
The Politic: Justice Ruth Bader Ginsburg has criticized the Roe v. Wade decision by claiming that the Court’s lack of restraint “stopped the momentum” on the side of pro-choice advocates due to the backlash. Many pundits have speculated that Ginsburg was paralleling Roe to the current same-sex marriage cases in order to advocate for judicial restraint rather than a “50-state solution.” Do you think that controversial and far-reaching decisions in favor of same-sex marriage could in fact impede the marriage equality movement?
I believe we are at a point where the nation could embrace a 50-state ruling in favor of marriage. We have changed the map of the country (12 states and DC have legalized same-sex marriage, another seven have civil unions or registered domestic partnerships, and two others have more limited state-wide laws) and opened so many hearts and minds to support — or at least tolerate — government marriage licenses for all committed couples. Of course, some would resist, and inevitably there would be an attempt to amend the Constitution, but I do not believe it would make its way through Congress. I believe a federal amendment to take away marriage rights could not garner support from three quarters of the states, i.e. 38 states. There are already 12 marriage states!
The Politic: If the Supreme Court does decide that DOMA and all state bans on same-sex marriage are unconstitutional, what are the next steps for the LGBT rights movement? What are the next steps if they only strike down DOMA?
There are many types of work ahead. We need 50 states to forbid discrimination based on sexual orientation (currently 21 and DC do) and gender identity (currently 16 and DC do) with one overarching federal law. We need a sensible immigration policy that encompasses same-sex couples. We need the military’s sustained efforts to root out anti-LGBT discrimination and attitudes. And of course, there is more. Even in states with significant legal protections in place, we see that prejudicial attitudes can be slow to yield, thus diluting hard-won victories and effectively denying freedoms and opportunities based on sexual orientation and gender identity. The nitty-gritty of changing attitudes — positively and productively — must be a mainstay of our work.
At GLAD, we often wonder how much better things really are in schools. Why does “comprehensive” health care education still offer nothing specific for lesbian and gay students? Why is the curriculum nearly everywhere devoid of any LGBT specific elements? Why are anti-gay slurs still the epithets of choice? Why are many LGBT youths homeless? And what cultural transformation must occur so that all parents embrace their LGBT children? It should be noted that an estimated 40 percent of homeless youth are LGBT, even though LGBT youth make up about five to seven percent of the youth population as a whole.
The law is still struggling to encompass LGBT people — our seniors, our families and who is a parent, for example — when so many laws are framed with a heterosexual model in mind. And we must prevent new efforts at gay exceptionalism, meaning tolerating different treatment of gay people that we would not tolerate for other personal characteristics like sex, race and ethnicity. In short, there is plenty of work to do to ensure that one’s sexual orientation and gender identity neither complicates nor compromises the lives LGBT people lead.
The Politic: I’ve read that heterosexual couples with a transgender member have gotten married in states with bans on same-sex marriage. Yet, these marriages are still subject to questions of legal validity since many states have not fully addressed the matter. Do same-sex marriage cases satisfactorily address this issue, or does this area require additional legal advocacy?
If there is a Supreme Court ruling that same-sex couples can marry nationwide, that would help a great deal as it would make a person’s gender irrelevant for marriage. Even if we had a broad ruling on marriage, I am concerned that the transgender spouse could still be vulnerable if a divorcing spouse claimed the marriage was not valid at the time of its inception, as sometimes happens now. On DOMA, there are plenty of marriages in which one spouse transitioned and the couple is not penalized by DOMA, but we are also aware of times when a transgender spouse has been caught in DOMA’s snare.
The Politic: Opponents of same-sex marriage, such as Senator Lindsey Graham, have expressed concern that allowing same-sex marriage may lead us down a slippery slope towards legalizing polygamy. What are your thoughts on this?
I think it is a red herring. The question is always one of whether there is adequate government justification for denying any group of Americans the ability to participate in a fundamental right. If the Supreme Court decides that the fundamental right to marry includes same-sex couples, that is as far as that decision goes. If someone were to seek recognition of multiple spouse marriages as a fundamental right, the government could argue whatever justifications it has for restricting those marriages. I think it is also fair to observe that gender is not relevant to marital rights and responsibilities — unlike even a few decades ago. Marriage has become a relationship of mutual and identical rights and responsibilities to one other person. I was also intrigued by a reference in the brief of the American Historical Association to a conception dating back to Montesquieu’s The Spirit of the Laws that viewed consent-based monogamy as the model for our republican form of government.
The Politic: Many religious institutions have staunchly opposed same-sex marriage. Do you have any hopes that LGBT groups can reconcile with them or do you think that the efforts of LGBT community are better spent elsewhere? Have there been any attempts to do so?
A substantial set of mainstream religious voices affirm the inherent dignity of lesbian and gay people, our relationships, and our families. The United Church of Christ, the Episcopal Church, the Unitarian Universalist Church, and portions of the Religious Society of Friends (Quakers) and Judaism’s Reform, Reconstructionist, and Conservative movements support gay people’s freedom to marry. The passion of our friends in religious communities is something to behold! Religious faiths are not a monolith opposed to us. Far from it. They are divided on the issue — both as a matter of government licensing and the distinct question about how each faith will address same-sex couples within its own doctrine. The litigation pertains only to the government licensing issue.
The Politic: What is the best way for interested students to get involved in the movement for LGBTQ rights?
First, talk — and listen! — to family and friends and work it through. Your voice matters more than you can know. Make sure you are informed since some people reason from their heads (where legal, logical and historical arguments matter) and others from their hearts (where the human impact of exclusion matters).
To get involved in state-by-state efforts, contact local organizations doing work on the ground. Leverage your expertise: no matter your interests — whether health, history, policy, or anything — there is work to be done on this issue from every angle.