TOM MCNAUGHT: Good afternoon. I’m Tom McNaught. I’m the Deputy Director of the Kennedy Library Foundation. And on behalf of John Shattuck, our CEO of the Foundation, Tom Putnam, the Director of the Presidential Library, and our Board of Directors, I am truly honored to welcome you here today, to today’s forum, marking the fifth anniversary of a very proud and historic chapter of this nation’s journey of equal rights for all citizens.
First, let me offer my thanks to Amy MacDonald, who is our Forum Coordinator, who does all the work in putting these wonderful forums together and enlists the wonderful panelists we have, as we have today. I also want to thank our sponsors. Our forums are made possible by generous support from our lead sponsor, Bank of America, as well as our other Forum supporters, Boston Capital, the Lowell Institute, the Corcoran Jennison Companies, the Boston Foundation, and our media sponsors, The Boston Globe, NECN, and WBUR, which broadcasts all Kennedy Library forums on Sunday evenings at 8:00 p.m.
Just before taking his oath of office as 35th president of the United States, President-elect John F. Kennedy spoke of his pride in Massachusetts. In a January 9th, 1961 address at the State House, to a joint session of the legislature, JFK said, “I speak neither from false provincial pride, nor artful political flattery. For no man about to enter high office in this country can ever be unmindful of the contribution Massachusetts has made to our national greatness. Its leaders have shaped our destiny, long before the Great Republic was born. Its principles have guided our footsteps in times of crisis, as well as in times of calm. Its democratic institutions, including this historic body, have served as beacons lights for other nations, as well as our sister states.”
For what Pericles said to the Athenians has long been true of this Commonwealth, “We do not imitate, for we are a model to others.” And indeed we are. For over 300 years Massachusetts has lead the nation and the world in many ways. With a shot heard around the world, it started a revolution in 1776 that led to the creation of this Republic. In 1780, John Adams crafted the Constitution of the Commonwealth of Massachusetts, the world’s oldest functioning written Constitution, and a model for the United States Constitution. And on November 18, 2003, exactly five years ago this week, the Massachusetts Supreme Judicial Court ruled that, under the very same Constitution, same-sex couples have the right to marry in Massachusetts.
TOM MCNAUGHT: In that historic opinion written by Chief Justice Margaret Marshall, the court ruled-- I’m not going to read the whole opinion, just a short one-- “Marriage is a vital social institution, the exclusive commitment of two individuals to each other, nurtures love and mutual support. It brings stability to our society. For those who choose to marry, and for their children, marriage provides an abundance of legal, financial, and social benefits. In return, it imposes weighty, legal, financial, and social obligations. The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations, conferred by civil marriage to two individuals of the same sex who wish to marry.
“We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second class citizens.” Of course as we all know, this was not the end of it. The SJC decision set off a firestorm of debate across this state, and across the country, that spilled into that year’s presidential election, and in local and state elections across the land. In Massachusetts, the former Governor, the former Senate President, and the former Speaker of the House all pursued different strategies, including amending the State Constitution, to circumvent, or overturn, this SJC decision.
Governor Romney even dusted off a 1913 State Law, once used to prevent interracial marriages, like that of Barack Obama’s parents, to prevent out-of-state same sex couples from marrying in Massachusetts. But in the end, the Massachusetts Legislature overwhelmingly rejected attempts to amend the State Constitution. Elsewhere, the high courts of New York, New Jersey, and Washington State ruled that there is no right to same-sex marriage under their Constitutions. But in May, the Supreme Court of California ruled that a state law banning same-sex marriage constituted illegal discrimination under the California Constitution. Connecticut Supreme Court then followed, ruling in October that same-sex couples have the right to marry in Connecticut.
Earlier this month, however, a majority of California voters approved Proposition 8. A constitutional amendment overturned the court decision, and banned same-sex marriage. On the same day, Florida and Arizona amended their state constitutions to restrict marriage to heterosexual couples. Today, more than 40 states have constitutional bans, or laws, against same-sex marriage. In contrast, the right to marry is available to same-sex couples in the Netherlands, Belgium, Canada, Norway, South Africa and Spain. And both Rhode Island and New York continue to recognize same-sex marriages performed in Massachusetts and Connecticut.
So, what are we to make of this new frontier of marriage equality? Will the Supreme Court eventually rule on same-sex marriage? Is the Federal Defense of Marriage Act constitutional? Will the U.S. Constitution be amended to prohibit same-sex marriage across the land? What role, if any, will President-Elect Obama take in ensuring equality for same-sex couples? To answer these questions, and many more, we have assembled an all-star panel, a historical panel, of those who have each played a direct and historical role in this chapter of civil rights. Let me introduce them, starting on my left. I’m going to skip over Renee until the end.
Our first panelist, to my left, is Lawrence Tribe, a professor of constitutional law at Harvard Law School, and the Carl M. Loeb University Professor. Professor Tribe is generally recognized as one of the foremost constitutional law experts and Supreme Court practitioners in the United States. He is the author of American Constitutional Law, the most frequently cited treatise in that field, Abortion: The Clash of Absolutes, and most recently, The Invisible Constitution, which is now on sale in our museum store. And I think Professor Tribe would be happy to sign it for you after. And how many people can have a friend of Obama’s sign their book? Professor Tribe graduated magna cum laude from Harvard Law School. He clerked for Supreme Court Justice Potter Stewart from 1967-1968. And he became the Assistant Professor of Law at Harvard in 1968, where he has taught ever since.
In addition to his stature as the nation’s leading constitutional scholar, Professor Tribe has long been a champion of defending civil liberties for all Americans. He has argued 36 high-profile cases before the United States Supreme Court, including one for President Al Gore during the disputed U.S. Presidential Election of 2000. In 1986, the U.S. Supreme Court ruled against Professor Tribe’s client in Bowers v. Hardwick, upholding a Georgia State Law criminalizing private, consensual sex by same-sex couples. Professor Tribe was vindicated, however, in 2003, when the Supreme Court in a 6-3 decision overruled Bowers in the landmark decision, Lawrence v. Texas, holding that intimate, consensual sexual conduct was part of the liberty protected by substantive due process under the 14th Amendment. Writing the ACLU’s Amicus Curiae Brief, supporting Lawrence, was Professor Tribe.
Long considered a potential Supreme Court nominee himself, Professor Tribe will most certainly be consulted by President-Elect Obama on future Supreme Court nominations. As law professor of Harvard Law student Barack Obama, who Professor Tribe describes as “The best student I ever had,” Professor Tribe served as judicial advisor to Senator Obama’s campaign. Please join me in welcoming Professor Lawrence Tribe.
TOM MCNAUGHT: Our next panelist, Attorney Mary Bonauto, was lead counsel in the landmark case of Goodridge v. Department of Public Health, which resulted in the historic decision of the Massachusetts’s SJC upholding the constitutional right of samesex couples to marry. Since 1990 Mary has been the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, or GLAD, which is New England’s leading legal organization dedicated to ending discrimination on the basis of sexual orientation, HIV status, and gender identity and expression. Mary has litigated widely in the state and federal courts and agencies of the six New England states on issues of employment discrimination, child custody, free speech, and civil rights. In 1999, she and two Vermont co-counsel won a ruling from the Vermont Supreme Court that same-sex couples are entitled to all of the benefits and protections of civil marriage in the case of Baker v. State of Vermont.
This ruling prompted the Vermont Legislature to enact the nation’s first civil union law for same-sex couples. A New York Times Magazine feature story on Mary Bonauto compared her to Thurgood Marshall and concluded, “Looking back 50 years to Brown v. Board of Education, most Americans have no difficulty in distinguishing the legacies of Thurgood Marshall, Martin Luther King Jr., and John F. Kennedy from those of the segregationist governors Orval Faubus, Ross Barnett, and George Wallace. And 50 years from now the odds are that Americans will have little difficulty in distinguishing the legacy of Mary Bonauto from those who oppose gay equality.” Please join me in welcoming Mary Bonauto.
TOM MCNAUGHT: Our third distinguished panelist is Senator Marian Walsh, who serves as Assistant Majority Leader in the Massachusetts State Senate, where she has been a leading advocate for upholding the equal protections granted to same-sex couples by the State’s Constitution. Senator Walsh served in the Massachusetts House of Representatives from 1989 to 1992, and in the State Senate since 1993, where she has served as Assistant Majority Leader for the last five years. A native of Boston, Senator Walsh graduated from Ursuline Academy and Newton College of the Sacred Heart, with a Bachelor’s degree in Philosophy and American Studies.
She went on to earn her Master’s Degree in Theological Studies from the Harvard Divinity School, and later a Juris Doctor from the Suffolk University Law School. In February, 2004, Senator Walsh, a devout Catholic, representing one of the most conservative Catholic districts in Massachusetts, rejected the urgent appeals of Archbishop Sean O’Malley and voted against the successive amendments to ban gay marriage in Massachusetts. Her vote of conscience made her a target of efforts to oust her from office. The Massachusetts Catholic Conference, the church’s lobbying arm, later put Senator Walsh at the top of its list of incumbents who needed to “feel the backlash in November,” in the words of an editorial in The Pilot, the house organ of the archdiocese.
Instead Senator Walsh handedly defeated her opponent in 2004 General Election, winning every precinct in the district. And in 2006, Senator Walsh, again, won every town in her district, and I assume you won every district in 2008. As a public official who has made courageous decisions of conscience without regard for the personal or professional consequences, Senator Walsh has demonstrated the kind of political courage described by John F. Kennedy in Profiles in Courage. She was actually nominated for the John F. Kennedy Profile in Courage Award. And the reason I know that is that I nominated her.
Please join me in welcoming Senator Marian Walsh.
TOM MCNAUGHT: And now we are particularly honored to have as our moderator this afternoon Renee Loth, editor of the editorial page of The Boston Globe, a post Renee has held since 2000. Renee previously served as Deputy Editorial Page Editor for six years. She was also political editor, State House reporter, and magazine writer for The Boston Globe. Before coming to The Globe, Renee was an associate editor of the New English Monthly Magazine, and for five years a political reporter for The Boston Phoenix. In addition to chairing the editorial board, Renee writes frequently on issues of state and national policy, women’s rights, and international development. As editorial page editor of The Boston Globe, Renee brought both civility and reason to the public debate on marriage equality for same-sex couples. And we are extremely fortunate to have her as our seasoned moderator for this afternoon’s discussion. Thank you, Renee.
TOM MCNAUGHT: So please join me in welcoming all of our panelists, Mary Bonauto, Professor Lawrence Tribe, Senator Marian Walsh, and Renee Loth.
RENEE LOTH: So good afternoon and happy anniversary. I want to thank Tom for that wonderful introduction-- and did such a good job of bringing the movement for marriage equality to the present moment, kind of a condensed version-- but bringing us to the present moment. And I hope that this conversation will help us peer a little bit into the future of this movement.
I particularly loved hearing Margaret Marshall’s words again in the Goodridge Decision. The quote from her about how the Massachusetts Constitution does not accept secondclass citizens reminds me of my favorite line from the play Angels in America. This happens near the end of the play where the character, Prior, who is looking forward to the dawn of the new millennium, is optimistic despite his many trials. And he says, “The world only spins forward. We will be citizens. The time has come.”
We have a terrific panel here today as you’ve heard. And I can’t say how great it is to be here with them. What we’re going to try to do is have a conversation that’s about, I think now, 45 minutes long, a real conversation. And then we’ll open it to questions from the audience. You can see there are microphones for you to line up behind. We’re going to try to get as many questions as we can in, because I know there is many to be asked. And so, this becomes a responsibility of yours to be as brief as possible, and I will enforce that.
We’ve seen, now, three distinct ways of making public policy evident in the fight around same-sex marriage rights: the legislature, starting probably with the Vermont Civil Unions and including Congress, the Courts, and the popular initiative.
I’m wondering, from all of you, if you think that one or another will be where most of the action is, looking forward into the future, if one institution is more appropriate, or perhaps better, as the way to solve this question. And for Professor Tribe particularly, and I might as well start with you, if you think that The Supreme Court is ever likely, at least in the near future, to settle this matter as they did in the Loving Decision, Loving v. Virginia decision, which settled the interracial marriage question in the 1960s I believe it was.
PROFESSOR LAWRENCE TRIBE: Well, it took a while for The Supreme Court to do what it did in Loving against Virginia. Remember Brown v. Board was ’54. And, for 13 years, The United States Supreme Court turned back opportunities to hold that there was a fundamental violation of human rights, civil rights, equal protection, due process when a state said that there could be no marriage between a Caucasian and an AfricanAmerican, which was what Virginia had said. I think it will take a considerable period of time before the Court now, which is split with four clear conservatives, four moderate to liberals, no genuine liberals on the court, no Thurgood Marshalls, no William J. Brennans, no--
RENEE LOTH: -- Mary Bonautos.
LAWRENCE TRIBE: -- No Mary Bonautos. The Court is pretty conservative. There is a guy in the middle, a swinger, Anthony Kennedy. And even though it was Anthony Kennedy who wrote the court’s landmark decision in Lawrence v. Texas, a decision which not only overruled the obscene ruling in Bowers v. Hardwick, but held, for the only time in the history of The United States Supreme Court, that that decision was wrong on the day it was decided. Usually when they overrule decisions they say, “We’ve seen the light. Things are better now. Things have changed.” In Lawrence they said that Bowers v. Hardwick was wrong the day it was decided.
Justice Scalia, dissenting in that case, said that the logic of Lawrence means that samesex marriage is also required by the Constitution. Now, sometimes Justice Scalia lives to regret his words.
LAWRENCE TRIBE: I think he was really tweaking the majority. He was doing what he often does, trying to be dramatic, unlike “No drama Obama.” He does tend to revel in drama. And I think, in fact, if you view it as a prognostication, as a prediction, it was premature because I don’t think the majority is ready. And it won’t be ready even with some Obama appointments because the people who are going to leave the Supreme Court are guys like David Sutter, who hates Washington, wants to go back to New Hampshire.
He’s already moved his books back there; Stephens, who’s going to be 89 soon. He’s very vigorous. I think he wants to stay until well beyond 90. And maybe he will, but maybe he won’t. Ruth Ginsburg, who’s not in the greatest health.
But when they are replaced with people whose ideology and outlook on this issue is really very similar to theirs, we’re still going to have youngsters, like the 13 year old Chief Justice of the United States, also a former student of mine, by the way. The young ones are there to stay for quite a while. And so, I don’t think the U.S. Supreme Court is where the action is going to be. And, in fact, I think defensive litigation, to keep this issue away from the U.S. Supreme Court, might be in order. So that those who want to attack, for example Prop 8 in California, on federal grounds, in order to make a federal case out of it and get it to Supreme Court may be a bit ahead of their time.
I think most of the action on this issue is going to be legislative. I think some of it will be in the state supreme courts. I mean the landmark decision that Mary, to her great credit, helped to win in this state, The Goodridge Decision, whose anniversary we celebrate, started what looked like it could be a mini-avalanche with California and Connecticut following. The aftermath of the Connecticut decision was a kind of yawn. It was really wonderful to see that people realize the sky doesn’t fall when courts render decisions of this kind. And it may well be that Prop 8, which money helped ultimately to win, will be turned back by the California Supreme Court.
It is a question of courage. Because under the California Constitution, in Article 18, a fundamental revision of the Constitution, unlike a mere amendment, cannot be done by a mere majority of the electorate, requires that it get two-thirds of each House of the state legislature, and then be put to the people. As you would imagine, a genuine change in the Constitution-- and if this isn’t a genuine change, I don’t know what is-- has to do.
But, even though there is a petition pending in the California Supreme Court that invites it to rule that the people of California had no authority to do what they did, it’s a state where justices of the state’s highest court can be recalled; it’s a state where the chief justice is going to come up for election anyway in two years. It’s going to be interesting to see whether they have the backbone, really, to hold that this was an impermissible revision.
So I think that, even though a few state supreme courts have managed to make change, it’s something which, within a generation at most, is going to be taken for granted. And legislatures everywhere are going to see that it is senseless, as well as inhumane and cruel, to deny them the benefits and privileges and burdens of marriage by that very name, to same-sex couples.
RENEE LOTH: Mary, anything in there you disagree with?
MARY BONAUTO: I don’t disagree with [simultaneous conversation]
MARY BONAUTO: I actually think we are going to continue to see action in all three venues. We’re going to continue to see some action in the courts because, of course, courts play the role of being a check and a balance on the legislature. And, when a law is passed to target gay people or to exclude gay people from a fundamental right or whatever, it is the job of the legislature-- the duty of the court to step in and say the legislature drew the wrong line. So, I do think courts will continue to be involved.
Legislatures clearly will continue to be involved because, of course, it’s still the majority of the states where gay and lesbian couples live their lives in essentially a legal void, where they have no legal connection. They might as well be legal strangers. And that’s not acceptable, more and more, as people across the country in big towns and little towns, all across the country, understand more and more that there are gay people in their midst. There are parents of kids in school, co-workers and so on. So I think legislatures will continue to be pressed about these issues.
And I don’t want to jump too far ahead about the future, but I have certainly some senses of where legislative action is imminent and likely to be successful. And then, when it comes to the ballot box, you know, there were 37 states to be clear, 37 that had some sort of constitutional amendment or statute barring marriage for same-sex couples by the time we filed The Goodridge Case in 2001. So, to the extent that some people have seen it as a good rallying cry and opportunistic for their own reasons to attack same-sex couples, of course we’ll see more of the same.
And then, of course, post-Goodridge in November 2003, many of those states had no where to go but up and ratcheted their efforts into a constitutional amendment, so that we now have 30 states--if you want to count California in that temporarily-- 30 states with some sort of constitutional amendment, and then 40 states that have statutes, so some states have both.
And will we continue to see these kinds of attacks? Yes. Are they limited to gay people? No. It’s sad to think about how the initiative and referendum process over the years has been distorted because when it was, I think, really hatched in the West in the ‘20s it was really intended to be a progressive thing to work around the monied-interests in the legislature and so on. And now, if you actually go back and you look for the last 15-20 years about how the initiative and referendum process has been used, it’s primarily used to attack minority rights of all sorts.
Will we see more of that? Yes. But I also have to say this. With these amendments that we have in 30 states-- assuming that Professor Tribe is right, that the day in which we can go to the Supreme Court and have those amendments struck down, ask for our fundamental right to marry to be vindicated, assuming that that day is not immediate, then the task in the states with amendments is to reverse those amendments at the ballot box. And, it’s certainly the task of people in those states and really their responsibility-- all of us, and especially responsibility of those of us who live in Massachusetts, and have these rights and have this lived experience-- to share what it’s like, to show that not only the sky doesn’t fall, but that things are better when families are stronger and have more protections. So yes, we’re going to be at the ballot box both on defense and, I think, on offense.
RENEE LOTH: Senator, what is the answer to those who say that these matters must be decided by the people’s representatives, or by the people themselves, and not by an unelected-- of course in California they’re elected-- but not by an un-elected court? How do you answer that?
MARIAN WALSH: Well, as we know in many jurisdictions judges are elected-- not necessarily the highest courts of those States, but that’s very common. So that’s what I would have, maybe a little less of a problem with judges doing it. I would say a number of things-- one, I’m so happy to be here. I’m so happy that it’s five years from a very positive witness to human rights. And I’m so grateful to Mary Bonauto for her fine legal mind, her wonderful temperament, her great leadership. Professor Tribe, there are so many ways we can be grateful to you and what you’ve done for law and freedom in this country, especially in our area. And, you know, The Boston Globe-- and my district sometimes call it The Boston Glob.
RENEE LOTH: You’re not the first.
MARIAN WALSH: It’s really been providing a great service for real civil discourse. To get to the question which you’d like me to address, I would say this-- and it’s not a particularly juicy answer, but one that I am familiar with. There is no shortcut. There is no shortcut for a very practical, and also political but, more importantly, human reasons. We all know that the reason why those bans were all passed, in great lightning-- I mean, every day my heart was breaking-- and then the federal one, and we watched that-- why this fear? There is some education that has to be done. And there are groups and movements and individuals that are promoting this.
It’s not happening in a vacuum. And I found, from my own experience, that-- As you know my district politically is very conservative and incredibly politically active. It’s also highly educated. And what I came to learn-- And Mary and I had quiet sidebars on occasion during this-- I frankly didn’t entirely expect to be re-elected.
RENEE LOTH: But you got The Boston Globe’s endorsement so it was--
MARIAN WALSH: That cost me points.
MARIAN WALSH: You said this was a conversation. I’m grateful, however, very grateful. What I decided was this, that-- how did I get to that vote and what kind of maturation, and information, and moral development, and civil education, and science did I need, did I Marian Catherine Walsh need? And I went down that journey. And the people that I had relied on for a lot of moral development and guidance were on the other side of it. So I couldn’t go to my traditional coaches. As a matter of fact they were on the other side in many respects.
But at some place I found information in moral development from the Jesuit community, from certain legal counsel. And so, I approached one as a lawyer and then as a human being. And, what I came to find out, is I was wrong, that the largest institutional influence in my district, and probably in the country, are institutional religions. They are very politically powerful. It might not be official, but it’s true. And what I came to understand is the premises of their arguments were shallow, and sometimes wrong.
And so, that’s why my legal training was so helpful. And I said to Mary “I don’t know if I could have taken that vote and this analysis if I had not been a lawyer.” So, I peeled the onion-- Marriage has always been between a man and a woman. That was what I hear every single day. That wasn’t true. So we showed historically how that wasn’t true. We took every one of their concerns and politely and respectfully said, “I used to think that too. And I have learned more because I had to, not because I wanted to. I, like you, want to move towards pleasure and away from pain, but this is here.”
And we took every one of those items-- And I had said to my staff and to our campaign that I will go to as many coffee hours as possible. And I want people to ask me questions, providing they’re not already against me. They’re on the fence- which you know were many. And so, we did that. And, we had 61 coffee hours, from August until November. There were some days when there were three or four or five. And we had great World Series and pennant races, so we would plan it before the first pitch. It became very practical. And I wore MBTs-- are those MBTS?--as I door knocked I know 40 or 50 hours a week. And I look at those shoes, and I still have to wear them by the way.
But, at any rate, what I came to learn is that most people are good; most people want to do the right thing; most people are very proud to be from Massachusetts. They’re very proud of the longest enduring Constitution. They feel, even if they can’t articulate it, a connection so real, so sincere. And what we all needed to do was have more education and more conversation where we weren’t going to be polarized in our corners. So that‘s why I recognize that the preemptive strikes are only temporary in these bans, both national and state-wide.
We just have to have many more thoughtful, respectful, humorous conversations. And I know that one day we will come here- maybe not individually each of us- and we will be celebrating this in a national movement. It is the truth. And we as human beings are like a moth to the flame. We like the truth. Right now it’s a little messy. And we’re not quite comfortable because we don’t have enough of our institutions giving witness to that.
But we have younger people getting more powerful in those institutions. We have had some great satisfaction and real moral joy with what’s happened here. And that can’t be contained. So, I guess the short answer to your question for our chat here today, is this will take a lot of work, a lot of discipline, and a lot of humor. And it’s going to have to be at kitchen tables, and legislative races, because the Supreme Court, whomever is sitting there, and legislators, whoever are going to hold those seats, are going to respond to what’s happening at the kitchen table. So it’s sort of a triple strategy, conversation, politics, and law, because they don’t function independently. There’s really an interrelation. So that’s why we keep doing what we’re doing, in a positive way.
RENEE LOTH: Nicely put. Professor.
LAWRENCE TRIBE: It’s not common in these conversations for somebody to hear a fellow panelist talk and then just say, “Wow.” I can’t think of a more powerful, articulate, heartfelt, intelligent, peon of praise to education, to conversation, to dialogue, to law.
And I just want to congratulate you.
MARY BONAUTO: I would like to add something about that too which is I don’t know if I was cloistered in someone’s office when I first heard you saying this on the floor of the convention, but I recall you saying something very close to, “I read the Supreme Judicial Court decision. It was way outside of my comfort zone. But my comfort zone is not the measure of another person’s constitutional rights.” And I think part of why you were so effective walking your district is because you grappled when you were out of your comfort zone. And, you knew what that experience was like as you asked people to engage a topic that was outside of their comfort zone. You’ve been there and you’ve done that, and you can do that again with them. So thank you.
RENEE LOTH: You mentioned religion and the strongly felt religious views of many of your constituents. And when I wrote the editorial supporting The Goodridge Decision actually before the decision was even written, I was very careful to make very clear that we were talking about a civil right here. This is a matter of civil law. It’s not about religion, religious opposition to this can go on. And we’re just talking about the state. So I was really surprised.
I don’t know if any of you noticed this but in the vice-presidential debate between Sarah Palin and Joe Biden-- She’s always a laugh line. Did you notice that? Between Sarah Palin and Joe Biden, they were asked about whether they supported gay marriage, and of course neither ticket did, right? And what Joe Biden said in that answer- It was not the most articulate answer, but I think I sort of get what he was getting at and I just wanted to open this up. He seemed to turn that whole thing on its head.
And I got the transcript and had to parse it a little bit. He said “Neither Barack Obama or I support redefining, from a civil side, what constitutes marriage. That is basically the decision to be left to faiths and people who practice their faiths the determination of what you call it.” So that sounds like he’s going down a completely different path, looking for this not to be a matter of civil law, but to be a matter for the religious-- You know there are some religions that do support gay marriage. So what do we think of that? Is that a complete distraction? Or is there some logic to that?
MARIAN WALSH: When I heard that I went, “Ouch!” because as we know-- And this came up many times and needs to come up, is that in Massachusetts-- It was in I think 1892, maybe 1869. It’s been quite some time-- 1692? -- that we gave-- The legislature gave the clergy the authority to perform civil unions. Until that time, you had a member of the clergy marry you only after you had gone to the town hall or wherever. It was two separate locations. And the clergy of Massachusetts approached the legislature and asked for civil authority to marry. But for that-- I would sometimes-- I even said this to Mary-- we should repeal that statute.
MARIAN WALSH: Now I say that somewhat tongue in cheek, but it did occur to me.
And if I wasn’t in such hot water I think I would have gone ahead and filed the bill. But my point is that is a privilege that they enjoy as a matter of statute. And the public thinks, by and large, just the opposite. And again, it comes down to our education and information. There’s so much cultural mythology out there that has been allowed to stand. We are-- Back way up. Look at what their premises are. How do they get them?
Even after the information-- I’ve mailed several people these statutes and some of the copies of the debates around them. They still didn’t think it was true. Most people however, when given the evidence, will believe you. Then it’s “Okay.” Now it’s “Can I be comfortable with it? And, can I digest it? And, am I on board?” And that’s a process you can’t take a pill for. You can’t have a drink over. It just takes a little time and a lot of welcoming.
LAWRENCE TRIBE: One point about that that’s interesting to me, is that in The Goodridge Decision the court did make clear that there were two ways to repair the inequality that existed in Massachusetts Law. And I think that’s clear implicitly, if not explicitly in the decisions of the highest courts of both Connecticut and California. And that is, one way as to say, “Well, if this institution, with this special name called marriage means so much to people, then it can’t be withheld from one group simply because of sexual orientation.” When people say “What’s in a name?” The answer really is “A lot. If it didn’t mean that much to you why would you be opposing it?”
But there is another solution and that is for the state itself to get out of the marriage business, is for the state to say “Call it what you want in your faith, or non-faith. Let your religion bless your union in whatever way it wants. We make available one thing, we call it blah, blah, blah, civil union, whatever, a word that is not freighted for many people with special religious significance, a word that the culture hasn’t infused with quite as much emotion. And we make that available, through the state, to couples that meet certain objective requirements of age, maybe consanguinity. Don’t marry your own brother or mother, whatever, but that’s it.”
And it was clear, I think to most people, that although as a logical matter that was solution, it would strike many people, especially in terms of their initial comfort zone, as such a radical step for there no longer to be anything official called marriage that that was simply unthinkable. But maybe, if you project forward 15 or 20 years, that may be where the country is going. And that may be one solution, to sort of decouple the religiously and emotionally and culturally freighted concept of marriage from what it is the state does when it provides its sanctions.
MARY BONAUTO: May I weigh in on this? I have to-- I have a slightly different perspective here, and I’m not willing to go to that solution yet. And I say that, in part, because from my perspective there’s a very active disinformation campaign going on about trying to blur religious and civil marriage. Because, in fact, it remains true in Massachusetts and under every state Constitution, and certainly under the United States Constitution, that every faith remains absolutely free to decide who it will marry and on what terms. And part of why people are confused is because those who oppose us try to blur those lines, and try to raise the specter, that some day the state is going to be telling you that same-sex couples have to walk up the aisle in your church, when it’s simply not true.
So, from my perspective, rather than try to solve a problem that’s not really a problem, I would prefer at least to really do much more education and hope that over time, people will understand. This was one of the issues used in California, very effectively in ads, this idea that eventually churches are going to lose their tax exemptions and be forced to marry people.
LAWRENCE TRIBE: That’s not what I said. I don’t have in mind taking anything away from churches. They can do what they want. But I have in mind taking from the state. And I’m not necessarily even advocating. I’m just saying that one solution may be for the state to get out of the business of using this word. Let churches do what they want.
MARY BONAUTO: Right. We agree that churches can do what they want. And the reason I wouldn’t want the state to get out of this business is because then you’re going to be dealing with people who are not religious, or who are of different faiths, and are not able to obtain a marriage. We’ve had marriage in this country for centuries. And as some of these opinions, like California and Connecticut have been so eloquent about, marriage is really freighted and people understand that that means that you are a family. To say to some families, “Because you can only go through the state, and you can’t get this through a religious venue, you’re going to have something different,” in a way creates a new problem.
So I understand why people think this is a solution. But I feel like the real problem right now is the misinformation out there about how religions remain free to do what they want to do, and marry who they want. No temple can be forced to marry a Catholic couple. No Catholic church can be forced to marry an Orthodox Jewish couple. It’s not going to happen. It’s not going to happen, period.
So, we need to get that information out there before we think about these other kinds of changes. And I also have to say-- And this is where I don’t know how the Supreme Court would view this, maybe you have an opinion about it-- but, how do you take away something that has become a fundamental right in our society? I think best articulated in The Loving Decision, something essential to the pursuit of happiness of a free people, how do you take that away from the government and from people’s aspirations? So, I’m more conflicted about it I think.
MARIAN WALSH: I think, too, the “M” word, the marriage word, became so nuclear. I found in my experience that many people just didn’t want gay couples to be able to use the marriage word. And when I get underneath all that, that was their leg up. Straight couples could be married, but gay couples can’t be married because marriage is religious. And what I found was a very thoughtful conspiracy to say marriage belonged to the religious community, and didn’t belong to the state.
The fact is marriage is a civil contract. And we created it largely for public health reasons. I became for a short time an expert on the history of marriage, and why we have licenses. And the religious piece was very, very late. And what they want to do is not have a separation of church and state, and they wanted to be homogenized. And they don’t want there to be-- They don’t want you to recognize that civil marriage is truly- and the civil state, pardon me- is truly what gives the religious community the authority to marry. They just want to extinguish that, some do.
And I agree with you so much Mary that-- Allow me to make it very clear that that is a law. That is the truth. And the marriage word is one that people can use to show that they have a superior union. It’s better. It’s more holy, more dignified. And I think the marriage word got me into a lot of trouble. And I can understand why it got me into a lot of trouble. And now that I understand I want to use it even more because it’s the truth. And eventually everyone, I think, most people, I believe, are going to feel comfortable and proud, and feel a sense of dignity and great joy. We have a lot of work to do. And I wish there was a shortcut. There’s just a lot of work ahead.
RENEE LOTH: I have a kind of political question. It doesn’t surprise me to learn that South Africa is one of the countries that allows same-sex marriage, or to know that Margaret Marshall grew up there and was very much influenced by the growing up under apartheid. This is a country that has a-- that had a very searing experience with inequality. And yet here in the last election, just a couple of days ago, we saw many of the same, very same people who are electing the very first African-American president, also voted against marriage equality rights.
I haven’t myself looked through all of the exit polls to find out if this is even true. And I don’t want to perpetuate another urban myth. And maybe we’ll talk a little about this, that racial minorities voted against marriage equality at the same time they were electing the first African-American president. I’m wondering why-- first if you think it’s true, and second why. It’s a difficult question for us because none of us is an ethnic nor racial minority here. But why racial and ethnic minorities, if true, don’t see marriage equality as part of their own civil rights struggle? And what can be done about that?
MARY BONAUTO: I’ll start. I’m not going to speak for anyone else, but I’ll just talk a little about this. What I think is to some degree urban myth, and urge us all to be very careful here, there was a CNN exit poll that pegged the numbers at 70% of African Americans voting in favor of Prop 8. That has not been replicated anywhere else in any of the exit polls in California, where the numbers were closer to something like 56% or 54% and so on. So I think we have to be very careful about what the numbers are.
That’s still a majority of course, but again think about California for a moment. In 2000, this same amendment, the exact same text was voted on as a statute. And at that point-- by the way 61% of the electorate approved of it, and it made a lot of gains as you can see, 20 points. But also we approved in all minority communities, including the AfricanAmerican community, compared to just the year 2000. So I think there is discussion going on. There is more work to do, but I want to be very careful, as a white person, to just immediately jump to some conclusion that I have somebody else to blame here. Or that I have to blame African-Americans were not a big enough part of the electorate to make us lose on the Prop 8. It was white people who made us lose Prop 8, if you want to add up all the numbers there. So I really want to be very careful about that. And then, speaking beyond the African-American community, we also made gains compared to 2000 in Latino community where the margins were smaller-- than you know, smaller support than the African-American community. And then, among Latinos 30 and younger, we had support on “No.” So again, I think this is all incredibly dynamic, and I don’t want to make huge generalizations.
RENEE LOTH: Do you think it’s more of a generational divide, if anything?
MARY BONAUTO: I’m not sure that it’s more of a generational divide, but the generational divide is always there. And having said that I don’t think you can take the support of young people for granted either.
LAWRENCE TRIBE: I certainly agree with Mary about being very careful about drawing these inferences from a single poll. But let me just, for the moment, assume that there is some truth in it and ask if it were the case, what might explain it. Now if you go back historically to when the 14th Amendment was adopted, there was a huge struggle of women to be included explicitly in the 14th Amendment. And, despite his visionary character in other ways, Frederic Douglass was at the forefront of the opposition. He said that “We can only make so much progress at one time,” that “If we make it clear that the equal protection clause is going to deal with sex discrimination, as well as race discrimination, somehow, then we may lose.”
There’s an understandable concern at various points in history, on the part of various minorities, that rather than being sort of all in the same boat, which is where people ultimately are, rather than seeing the connections between the fate of one minority group and that of another, to worry a little bit that the fragile gains we’ve made may be jeopardized if we go too far, too fast. And I think there is something in that psychology that could explain at least some of what Renee Loth is asking about.
MARIAN WALSH: I would say two things to that point Renee, that we had that experience in the civil marriage debate. There were many people, especially within the gay community, who had said to us during our constitutional conventions, “Just vote for civil unions. Don’t go for civil marriage. The public’s not ready for it. And we’ll lose civil unions.” And I remember having that vote and that we vote alphabetically. And we-- orally, our names are called. And I really felt strongly that this is either about a principle or it’s not. You can’t fight for something and call it a principle, and then compromise.
This isn’t, “What’s our state flower?”
MARIAN WALSH: So, in our first vote in the constitutional convention on this, I think nine or ten legislators voted not to change the Constitution. There were nine representatives and one senator. Correct me if my memory falls. I was the senator and there were nine state representatives. And it wasn’t because everyone else was against gay rights. It was because there was-- Their point was so well taken. “Well, we might lose civil unions. We’ll have nothing.” And I remember those conversations. And I was in the dog house for a little while in the gay community because I voted the way I did.
“Now we’ll have nothing.” So there was definitely a maturation discussion.
But the other point with the African-American community-- I had spoken with many of my colleagues who represent part of the African American-- or who they are AfricanAmerican and we would have conversations because we had a mutual concern. Their institutional churches were as much against gay marriage as my institutional church was. And it was very cultural. So I really felt we had some common ground. We had pursued that.
And having been to other parts of the country where evangelical religions are much more widespread, you know, “Jesus Christ is my personal Savior.” In those faith communities, the idea of gay marriage is unthinkable. And we have segments of that around the country. And again, it comes down to-- It’s not uniform. There are exceptions. It comes down to more education. And we used to make jokes, you know “Was Jesus Christ gay?” Or we used to try to have some kind of a way to reach out and have discussion on this within the theology of that community.
So I think a lot of it is the faith-based culture, which is both in institutional churches and also in smaller evangelical churches, and also again the education piece. So it still comes down to that, I think.
RENEE LOTH: Okay. We’re going to be going to questions any minute. So if you want to start lining up around the microphones I’ll be calling on you in a minute. I just want to very quickly, though, ask a kind of technical question, what you think will become of the- Is it 18,000? -- same-sex marriages that have already been duly performed in California, in the near term? While we’re waiting for [simultaneous conversation]
LAWRENCE TRIBE: I think even if the California Supreme Court isn’t as principled as I hope it will be about whether Prop 8 is valid at all, I think that it will conclude-- This is just a guess, and when you live by the crystal ball you got a light brown glass and I’m not sure if I want that in my head. But my guess will be that the California Supreme Court will at least say that those couples who-- before the effective date of Prop 8, were married, those marriages will remain valid. I’d be pretty surprised if they were to say, “We’re going to yank those marriages from people.”
MARY BONAUTO: And right now the Attorney General is taking the position that the amendment is prospective only the marriages are valid. And to my knowledge there is nothing before the California Supreme Court contesting the validity of the marriages. Of course having said that, there are groups like the Liberty Council and the Alliance Defense Fund who have made no secret of their attempt, the fact that they are going to attempt to invalidate marriages in whole or in part in their own strategic litigation.
LAWRENCE TRIBE: You all know that the Attorney General of California is Jerry Brown, remember? Governor Moonbeam?
MARY BONAUTO: Is that a good sign?
RENEE LOTH: Okay. I want to remind the questioners that this is an opportunity to ask a very brief, very succinct question, not to make a speech or pontificate. Really, you can see we have a lot of people and it’s just not fair to others to take up more than your share of the air time. I’m going to start with you, sir.
Q: I’d like to talk about the end game and whether we can solicit selfishness in our favor. Think about 25 or 50 years from now when one-third of the states allow gay and lesbian marriage and the rest of the businessmen in the other states say, “You know, we’re losing a lot of very smart people with initiative because they want to move to a state where they can get married.” How will the end game play out? It’s ultimately going to have to depend on selfishness and economics. Could that be one way?
MARY BONAUTO: I actually have a number of reactions to that. I hope that the end game is before 25 years. And I actually think you raise a very good point. If you think about-- There’s 1997 that in reaction to the Hawaiian litigation, the right wing and others went to Hawaii and said, “Please, please give them something so that we can put an amendment out on the ballot.” And we got reciprocal beneficiary relationships in Hawaii.
And since that time, we now have 11 states where you have marriage…(inaudible), civil unions, registered domestic partnership, and a number of others, recognition of marriages in New York and Rhode Island and then a number of states with more meager domestic partnership. That’s 11 states in a fairly short amount of time, and a lot of that actually post-Goodridge.
So, I actually think the trajectory is good. And I see clearly everybody knows there’s going to be a battle royale in New York. This year the senate has now shifted to Democratic hands. The issue was marriage. And I think it’s very possible we’re going to get marriage in New York, in New Jersey, in Vermont in this next calendar year.
MARY BONAUTO: I love legislatures. I’m also very fond of courts. And there’s a case pending and to be argued in the Iowa Supreme Court in December. So this is not just an East-West issue. It’s also in the middle of the country. So, I do think you’re going to see more and more states doing this. And you’re absolutely right, that eventually it becomes very hard to transfer people. And businesses are going to become our allies when they say “We can’t transfer people because they don’t want their relationships to suddenly evaporate and be returned to being legal strangers.” So those are among the allies, I think, we will have over time.
LAWRENCE TRIBE: Remember Lincoln’s theme, “We can’t long survive as a house divided, a nation half-slave and half-free.” This is a version of that. It’s bound to come nationally. And I think I agree with Mary that it’s sooner rather than later.
Q: If you were giving advice to federal judges, and more specifically, U.S. Supreme Court judges, or if you were giving advice to legislatures that existed in states that don’t have constitutional amendments banning same-sex marriage, what advice would you give them about this difficulty? Arguably, the Supreme Court was ahead of its time in Roe v. Wade and it drew incredibly vicious reaction. In fact, created a huge, incredibly conservative movement in our country for many, many years, which we may now be coming to the end of. How far ahead of the public should courts and legislatures in those states be?
MARIAN WALSH: I would say lead or follow, that’s the question right? I guess what I feel is that politics are everywhere, in a marriage, on the bench. That’s not necessarily a bad thing. Are those politics informed with truth and law and judgment? When you take a Roe v. Wade example, that may be one of the most notable, political, fallout decisions we have. And I think that, whenever we talk about something that can be instructive, I personally try to stay away from extremes because I think that the benefit of learning from experience is less productive with an extreme. I think that the progress we’re making on the civil rights, civil marriage equation is far greater, is much more deliberate, and has the likelihood of a great deal more success.
I also think that rationale and reasoning for the civil marriage discussion doesn’t get the same criticism in some quarters as Roe v. Wade does, in some quarters. In most quarters Roe v. Wade legally is celebrated. So, I don’t think that it might be the best example for this particular social discourse. And I think that we’ll always have some segments of our political universe who are going to say whenever a judge makes a decision, different from where they’re at, that’s an activist judge.
I found it very interesting in our gay marriage debate in Massachusetts that many of our critics were saying this is an activist court. They were legislating. They were taking away the people’s right. And I listened to that over and over. And I said “What am I missing?” I actually went back-- This was how foolish it got-- I went back and looked at everything the court did, everything that the citizens had done, because they had every right to petition to change the Constitution. The court had done its job. Its job is to hear matters before them, and to rule on them. They didn’t hijack the process. They made a decision. But when you don’t like the decision you say they stole the process.
And, if they had hijacked the process, we would have had relief for that. And I don’t mean to be so trite with this, it comes back to our being patient, our having good humor, our acting as if this is the first time I’ve ever heard this point of view, or had this conversation. Wherever that person is at, or that entity is at, or that institution is at, is to try to understand how they feel, what they see, what they think, how they got there, so that we can then have a real dialogue. So it’s not a polarization, or “I showed them,” or “You’re quiet until you get your chance to speak.” That’s how we move this debate, and every other debate, that’s going to give people in our country, and those who want to come here, a real chance to be and meet their promise. It doesn’t change.
LAWRENCE TRIBE: I agree, especially with the point that we should not draw too many lessons from Roe v Wade. It is an extreme. One book that I wrote was called
Abortion: The Clash of Absolutes, and it’s a book on which Barack Obama was my research assistant. It is a clash of absolutes. A lot of people for whom the unborn is an absolute value, a human life that can’t be taken, are not going to be argued out of that position. The possibility of moving people on an issue like same-sex marriage, I think, is considerably greater.
MARY BONAUTO: And I’ll just add one thing which is, I agree that Roe is not the right comparison. When you’re talking about a state, you’re talking about a much smaller body of what you’re deciding. Roe decided the issue for the country. And, on judicial activism generally, I think we all know that’s been a debate that’s been with us as long as we’ve had our country. There’s always going to be that tension about what is the proper decision maker in a particular circumstance.
And I personally enjoy the irony of California in this sense, which is that the legislature, of course, passed a marriage bill, to be vetoed by Governor Schwarzenegger. And then they passed it again to be vetoed by Governor Schwarzenegger. Now, what if Governor
Schwarzenegger had signed that? Don’t you think they would have gone forward with an Amendment process anyway? It was just really, it was because the courts decided it, that they needed to go forward with the Amendment? No. It was the substance of the issue. So the decision maker I think is really a false issue.
LAWRENCE TRIBE: And that’s true about Roe v. Wade as well. They talk about states’ rights but that’s not what it’s really about.
RENEE LOTH: And now Governor Schwarzenegger is saying he hopes it will be overturned by the courts.
RENEE LOTH: A complete circle.
Q: I came here out of not understanding, defining a person essentially as heterosexual, homosexual, gay. I find the use of these terms to describe a person essentially, whether it be gay or heterosexual or homosexual, offensive. I came here to learn. I understand people of the same sex being in love who aren’t biologically related as brother and sister. I understand people who are-- I mean there are married people who say you are sisters-inlaw. That’s family. You’re in love and you’re of the same sex. It isn’t a marriage.
There are people of the-- Sometimes I think what happened to friendship? There are people of the same sex who love one another deeply, and people of the opposite sex who love one another deeply, that are not married. They have deep loving, long-lasting friendships. You don’t hear about friendship that much anymore. What happened? Sometimes, I think jokingly what’s the big deal about marriage? Have you seen the divorce rates? Marriage isn’t the be all/end all. So it’s just a comment, I came to learn and listen. Thank you.
Q: Yes. I’m proud to be married in Massachusetts. But it’s mostly painful, except when I’m paying my taxes to know that I don’t have full marriage equality because of the Federal Defense of Marriage Act. So, I would like the panel to comment on what are the possible-- I mean looking into the future and say how long do I have to live with this inequality? Could you sort of speculate on that? What might be the different paths we have to getting to full-marriage equality, which would mean federal recognition as well as state recognition for our marriages? Thank you.
LAWRENCE TRIBE: The Defense of Marriage Act has these two parts, as you know. One part actually, was simply an insult to gay people, but it had no operative effect. It was the part that gave permission to states which didn’t recognize same-sex marriage, to deny recognition to couples from Connecticut or California or Massachusetts- California not necessarily, where same-sex marriage is recognized. The fact is that states had that right all along. The constitutional provision that says that states have to recognize judgments from other states for very complicated reasons never applied to marriage. So, that part of the Defense of Marriage Act is just insulting, but it didn’t do anything.
The part that actually did something is that part that said “For purposes of federal law,” federal tax law and all the rest, “same-sex marriage will not be recognized.” That in my view is actually unconstitutional. It violates the equality component of the Due Process Clause of the Fifth Amendment. But the Supreme Court, as currently composed, will not agree with that. They hopefully will not rule on it, will not be invited to rule on it. When they will be ready to say that that’s an unconstitutional discrimination is a function of the longevity of some of the younger members of the court, more than any else.
RENEE LOTH: Is there a congressional opportunity to overturn the DOMA?
MARY BONAUTO: Well, what I’ve heard about the Congress-- As you know the President-Elect actually supports repeal of both Sections Two and Three of the Federal Defense of Marriage Act. However, it’s not as though the concerns of gay people have been readily addressed by the last number of Congresses. So, there are a number of other issues that are really paramount in dealing with employment discrimination, hate crimes, immigration issues, the military-- the largest employer in the country. So I think that those are going to get attention before anything else. And it’s with great trepidation that I would ever dare to even suggest any disagreement with Professor Tribe, but I would like to say that I think that the-- with respect to Section Three of DOMA, the Federal Discrimination Act.
LAWRENCE TRIBE: You should explain to people what Section Three is.
MARY BONAUTO: Yeah, Section Three of DOMA being the part that says “For purposes of all federal law marriage is the union of a man and a woman.” So that means all 1,138 rights and responsibilities of marriage under federal law are off-limits to married couples of the same-sex. I will just say that we’ve received, I think, more than 1,000 inquiries about this topic since marriage became effective in Massachusetts. And we’ve obviously looked at it, and it’s really curious. When you look at all the federal statutes, every single one of them that defines any kind of family relationship, it is virtually unheard of for the Congress to pass a law that defines the component of a family relationship as they do with DOMA, and say that a marriage is a man and a woman. And previously, when it came to federal laws and statutes and programs, a state said you were married, and you were married for Social Security, for tax, for whatever--
LAWRENCE TRIBE: But that doesn’t make it unconstitutional.
MARY BONAUTO: No, it doesn’t, but just to say that that is something that makes it highly unusual. And as Professor Tribe wrote a brief that I think everybody understands was incredibly influential, probably controlling in The Romer Case when the court struck down Colorado’s amendment, too. And among other things was the highly unusual character of that enactment to say that-- to withdraw non-discrimination protections from gay people across the board.
I’m not saying that alone makes it-- But it means that if one were to think about addressing Section Three that you are starting with an incredibly unusual enactment, number one. And number two, you’re talking about something that very clearly says-Here you have people who are married in Massachusetts. They’re all in one class.
They’re all the same in Massachusetts Law. But then federal law comes in, divides them into two camps, one who were full marriages, the other, which are nothing. And, as he says, it is a real equality issue. It is, really, an equal protection issue. So I think, especially with marriages in California-- those 18,000 that are out there, and are currently valid, and more marriages to come-- I have to say I think the day is inevitable when this is going to happen, that it’s going to be in court.
Q: My name is Karen Russell and I just wanted to weigh in on this issue. Since I came out in California-- I did not come out here in Massachusetts-- I find it very ironic and hypocritical that the majority of the people in California voted against same-sex marriage, when that’s where I came out. And here in Massachusetts we made it legal before they did.
Okay. The question I have is since that happened there have been rallies and demonstrations, and people walking out of their houses into the streets out there in California, as well as across the country, demonstrating. Do you think any of this will have any effect on Proposition 8 being overturned in California?
MARY BONAUTO: Demonstrations are important. They make people feel good also and involved and connected with the issues. But I will say this. I think the most important thing that anybody can do is to find those people who are conflicted about this issue, who don’t want to discriminate, but really don’t like the idea of extended to same-sex couples, and to have a one-on-one, heart-to-heart conversation with them repeatedly. That is what changes minds, and not demonstrations. So, if I had any recommendation for everyone who cares about this issue, it’s to get raw, real, and vulnerable with people, where it’s outside of your comfort zone to do so. And that’s what’s going to make a lasting difference.
LAWRENCE TRIBE: That is how Barack Obama became President. It was one-to-one conversations on the Internet, things going viral. It wasn’t the 75,000 people here or 100,000 there, so I very much agree. But I also think that it is so empowering for people, as long as it can remain non-violent, to show how strongly they feel. But it’s not an either or. I don’t see any reason why you can’t have a conversation in the morning and go to a demonstration in the afternoon. We can walk and chew gum at the same time.
MARIAN WALSH: You know I have to agree. I think that we have to use all of our senses to learn well. And the collaboration of citizens coming together and having a positive message, and giving witness and education does move people. And if they had a chat as Mary described with a co-worker, private, quiet, raw chat, and then driving home they see 100 people with dignified signs, that aren’t negative on anybody, but just giving witness to a valid truth, it’s one more opportunity to ratify and solidify while they are digesting and discerning.
So I think any opportunity to affect our neighbors, and give witness in a positive way-- I think if we have to choose only one I would do the sidebar that Mary describes. But I think that we need every possible opportunity to give witness and to educate and be patient. I also think it does affect the courts. It affects who’s appointed to the courts. It affects the person appointing to the court, who they appoint. It’s all part of the mix. I think the Obama campaign is our most recent and best testimony to that. It’s productive.
Q: Senator Walsh in your comments you said that you were voting on a principle when you were voting on this, that civil unions would be half-heartedly endorsing what most people here believe in very, very strongly. But Massachusetts is a unique case. Our Constitution is extraordinarily difficult to amend. It’s as blue as the day is long. And it is isolated. You voted on a principle in one state, but that principle doesn’t necessarily transcend. It’s much more conservative, much more evangelical Christian-based for instance, Evangelical Protestants, etc., that the backlash that engendered on our upholding of a principle may have done a disservice to the GLBT Community and organizers in places where the principle that we also strongly believe in may not even exist, but certainly doesn’t have the same kind of support. And I’m wondering if you guys can comment, then on this idea that maybe the success in Massachusetts set back this principle in other places. And for the individuals there, the ramifications they saw were negative, how does that balance with the positive effects that we saw in Massachusetts?
LAWRENCE TRIBE: As someone who was simply an advocate and who was not a lawyer in the case, except I did write an Amicus brief, but who was a little more distant, and as someone who was not in the legislature I have less at stake in a way. And I can tell you that I think it’s completely wrong to believe that the progress in Massachusetts set anything back. It seems to me that the very fact that there was not any sort of demonstrable, negative effect-- The fact that the people began getting used to the idea of co-workers, and relatives, and friends being married, all of that made it easier for other states, other courts, to take the steps they did. I think one would have to have evidence for the proposition that it set anything back. I think that would be a terrible mistake.
MARIAN WALSH: If I may? I appreciate your question and it’s not the first time I’ve heard it. This is how I examined that question when offered to me many times. I examined “What’s my role here? Where is my ego? Where is my personality? Am I discerning? Am I here to be an instrument? Am I living up to my oath to support the Constitution?” That’s the premise of any lawmaker when you begin your term, is that you take an oath to uphold the Constitution. And when I examined the choice I had to support civil unions, and put civil unions in the Constitution, as opposed to what we had gotten five years ago today, affirmed in the Constitution, I said to myself “I am really voting for discrimination.” I see civil unions as a status less than civil marriage and I did not want to participate in discriminating.
Now, again, it’s your point of view. Some feel “Well, having civil unions in the Constitution is better than having nothing in the Constitution.” I think that silence is better than lesser rights. So, I examined it from that perspective. The other thing I felt was that “What am I afraid of?” Not “What am I as a lawmaker afraid of,” but “What are we as a people afraid of?”
Once I became educated, and then convinced, that this was the truth and this was right, you couple that with either an optimism or a pessimism. And I thought I have, and hope again to have an informed optimism, then it has to start somewhere. And, even if temporarily-- And I do think it spurred some of the other states to go do a …(inaudible) strike and have a ban. I can’t prove that. I just have a gut feeling that part of your premise may have ignited that so they wouldn’t have this conversation. I think that part of our social justice part will have sidesteps and short term back-steps. I think that is part of the terrain. I don’t welcome it. I try to avoid it, but it’s going to be part of the equation sometimes. But, if that’s what we have to go through to get the civil rights, we’ll go through it.
So, I don’t want you to think that I was not thoughtful, or it was stubbornness in my point of view. I think that I did a productive, and effective, and right thing. And I thank my constituents for allowing me to be in a position to participate in this. And, without being too sloppy on the anniversary of this, I thank my husband, who I can’t tell you-- He was a district court state judge, who went through great ridicule and criticism-- and not to mention all the food shopping and dry cleaning, everything. Because every where I went took too long, and I would be beat up so often. So we were strategic in many things. But I look back now, and I’m also grateful for the ability to examine this equation at the time. And I’m grateful for my teachers who I think gave me the apparatus.
I’m not saying I was perfect. I’m just saying that I tried, and that the ability to make the effort was, again, because of the teachers that I had along the way. So, I think that discrimination is a very serious thing. And I think that anything less than full civil marriage is discrimination. And the principle can sometimes take a little longer to taste, but it will come if you work for it.
MARY BONAUTO: Do I hear that your question goes to ask whether it was even worth doing in the first place?
Q: Definitely not.
MARY BONAUTO: Okay. Because I want to say one thing about that which is-- two things. When one thinks about attaining that national resolution that Professor Tribe has said will have to come at some point, “We can’t live as a nation divided,” certainly when the Supreme Court decided the issue of interracial marriage, there were 16 states that still forbade, or in some cases criminalized, including in some states in their Constitutions, interracial marriage.
So, as pained as I personally am by amendments in these other states and-- accept responsibility for things that or whatever, just feel badly that people are living in such a regime, it’s also true that those who can move forward, must. And that eventually, to get to that national resolution-- I’m not saying we need to have 34 marriage states. I think we need to have--We will have more marriage states. And we will have more states with civil unions or domestic partnerships. And then we’ll probably have movement in every state, one way or another saying that “What are we going to do about these same sex couples and their families? And can they continue to live in this legal void?” And that’s what’s eventually going to prompt a national resolution. That means places like Massachusetts where you can lead, you have to lead.
LAWRENCE TRIBE: There’s one point about guilt. I’m an expert at guilt. I feel guilty about all kinds of things.
MARIAN WALSH: You’re not even Irish.
LAWRENCE TRIBE: I’m Jewish so it’s the same thing. I don’t think you guys should feel that the states, in which there was an apparent backlash and that banned it, that that’s sort of a cost, because those aren’t states where same-sex marriage was going to suddenly flower anyway. It seems to me that that was a knee-jerk reaction. And it’s true that it’s something you would much rather not have had happen. But I think that, for all the reasons that you’ve given, moving forward when you think it’s a deep matter of principle is something you shouldn’t hesitate to do just because there’ll be some Newtonian backlash in a few places.
MARY BONAUTO: And as a practical matter, too, I just want to remind people that 37 states had statutes or amendments in 2001. For those states that want to continue to agitate and punish and penalize gay people and same-sex couples and make a point, the only thing they could do at that point was to go take the further step and amend their
Constitution for those that hadn’t. It’s really very few statutes that have passed since 2001. So, there was a lash, before there was a backlash is my point.
RENEE LOTH: This is the worst part of my job where I have to start cutting people off.
So I’m going to ask people to move quickly, and the panel too, so we can try to get every question. I think we only have a few minutes left.
Q: Quick question. As you stated earlier, you said this year is going to be New York,
New Jersey, and Vermont’s year, something I’m really excited for. I don’t know if you can answer this really well but do you foresee, if they do get marriage, do you foresee something like Prop 8 happening in those states?
MARY BONAUTO: First of all, with respect to the admonition made by Professor Tribe about ground glass, a year from now I could be chewing up on that glass. There’s a lot of reason to expect forward momentum in each of those states and the legislatures this year.
With respect to New Jersey, in New Jersey the amendments have to begin in the state legislature. In Vermont the amendments have to begin in the state Senate and require three-fourths vote. And in New York, again there is no direct initiative of a Constitution.
So it just turns out that of those three states-- Those are states, again, where there’s not a direct initiative. Voters cannot just sight a petition to get something on the Constitution and for the legislature for then to do something and then authorize it to go on the ballot and then take it away, doesn’t make a lot of sense.
Q: I’m so grateful to Renee for turning the direction of the panel in this direction, because I think that marriage, the term, is extremely muddy. And for a long time I thought that it’s important to separate, and maybe just say nobody can have a marriage except through religion, and just have civil marriage for everybody, but that’s not going to fly.
What I really noticed happening today-- I think it’s so important for a lot of people to really get that there’s two things. There’s the civil marriage, and there’s religious marriage. And I noticed that Senator Walsh consistently referred to it as civil marriage. I think that’s more likely to fly than getting rid of the term marriage altogether. I wonder if we couldn’t make a greater effort to always say religious marriage and civil marriage, so that it will help people to understand that there’s really two totally different things.
And the separation of church and state is really important, especially to me because I come from a religion that strongly backs marriage equality. I’m Unitarian. So I really feel like I’m being-- I don’t like my religion to be forced into someone else’s religion.
LAWRENCE TRIBE: Good idea.
MARIAN WALSH: And that’s why I always say civil marriage. Yeah, it’s an important distinction.
Q: Just a short question. I’m wondering if you could explain why in California they weren’t able to challenge the constitutionality of Prop 8 before it went on the ballot, since this question is now raised about whether this was a revision of the Constitution?
LAWRENCE TRIBE: You know I should know, but don’t know what the California procedure is for either the Secretary of State or the Attorney General to keep something off the ballot. But there is a tendency in most states to err on the side of letting something go to the people, saying that even if it’s something that will hurt people when it’s passed, its effect can be stayed. There is a pending petition in the California Supreme Court to stay the effect of Prop 8 until the Supreme Court of California can rule on it. It’s better to let it go to the people. It might be defeated there, rendering it unnecessary for any filter to keep it from the people. And I think that that’s likely what happened.
Q: Hi I know this may sound trivial in light of all the other challenges that are being faced, but I don’t want to be listed as my spouse’s roommate on the 2010 census. In the event that DOMA is not repealed by that time, is there a way we can push for the question to be amended on the census from “Are you married?” to “Are you recognized as married in your home state?”
MARY BONAUTO: Okay. Well, DOMA is not going anywhere by 2010, the time when the census is out. And, from what I understand, there actually have been very high level conversations with Representative Waxman’s office. Representative Waxman chairs a committee that controls the purse strings of the census. And the census is becoming increasingly interested in trying to think about ways to do a better job actually coding data.
So that, even though the question may not reflect what we would want it to reflect, because they’re not going to change the questions at this point, that is incredibly complicated and apparently impossible. But there is going to be better tracking of what it is that is happening to people in Massachusetts, Connecticut and California and other states where there is civil unions and so on, to get a better picture of what the families look like, so that they are not just written out of existence. I’m sorry. This is a vague answer because the details are numbingly tedious, but that’s the gist of it.
RENEE LOTH: That’s like a new editorial subject. I like that.
RENEE LOTH: Last question, thank you. And before you ask it I would just like to thank everybody and remind people that Professor Tribe’s book is going to be for sale.
PROFESSOR TRIBE: Oh, yes. Remember.
RENEE LOTH: And thank everybody ahead of time for such a civil and wonderful discussion. Go ahead.
Q: Elderly gay and lesbian married couples are in a very peculiar position where, prior to DOMA, and even with the DOMA, even married, the surviving spouse was in a position to lose her home and be reduced to poverty. But ironically Bush, who exploited hatred of gays to get elected, signed the estate tax increase exemption. And he also signed the
Pension Protection Act. And now Obama is saying he’s going to remove the tax cuts that Bush put through. I know it’s very complicated, but I wonder what any of you thought about all this?
LAWRENCE TRIBE: It’s worth thinking about. But I have to say that I haven’t focused on it myself. I’d be happy to. I want to. I will.
MARY BONAUTO: Me too. Although I will say this: that the estate tax exemption at the federal level is now $2 million dollars. And I think it would be reduced back down to $1 million dollars. Now again, I recognize that some people have that amount of money, but there’s an awful lot of people who don’t. So I think the estate tax exemption is-- I’m not saying it’s unimportant, doesn’t deserve focus. But it’s not going to be where most people are living their lives.
RENEE LOTH: Well, thank you very much. It was really thoughtful conversation.