The Washington Post

Civilities LIVE: What's next for same-sex marriage in VA. and the Fourth District? Freedom to Marry's Evan Wolfson joins us

Jul 29, 2014

Columnist Steven Petrow took questions about LGBT and straight etiquette.

Yesterday the Fourth District court struck down Virginia's same-sex marriage ban and today I'm very pleased to welcome Evan Wolfson to our live chat. Evan is the founder and president of Freedom to Marry, the campaign to win marriage nationwide. He is author of Why Marriage Matters: America, Equality, and Gay People’s Right to Marry. In 2004, Time magazine named him one of the "100 most influential people in the world," and in 2012, he won the Barnard Medal of Distinction alongside President Barack Obama.

Welcome Evan!


Great to be here with you.  Exciting times!

Yes, very exciting times. Tell us about yesterday's decision, if you would, and put it into context too?

Yesterday we saw yet another ruling in favor of the freedom to marry -- the third such federal appellate ruling and the 29th from a federal or state court in the last year. The 4th Circuit Court of Appeals ruled in a case coming out of Virginia that the denial of the freedom to marry violates the U.S. Constitution and must end.

So, what does that mean to same-sex couples in Virginia and in the other Fourth District states?

So far, 29 consecutive federal and state rulings have found in our favor -- with none against -- since last year's Supreme Court decision in the Windsor case.  And that momentum in the courts of law matches the momentum we have built in the court of public opinion.

For now, the decision is not yet final.  There is more process in the courts, but either it will be appealed or it will become law... and it's one step closer to the freedom to marry for all -- couples in the 4th Circuit as well as nationwide.

In every way imaginable it seems as though marriage equality advocates keeping winning in the courts. What keeps you up at night, Evan? What are the possible roadblocks ahead?

We clearly have the momentum, we know what we are doing, we have the right arguments and a great team... but the biggest danger is that we stop doing what we are doing and expect it all to just waft in on a wave of inevitability. The reason we are winning is that we are creating the climate that enables decision-makers, including judges and justices, to do the right thing. We have to keep doing the work until we get the job done.

The Freedom to Marry strategy has always been to set the stage for a Supreme Court ruling that will bring the country to national resolution. We don't have to win within the 4 corners of each state, but we have to win enough states and enough support so as to ensure the win in the Supreme Court. Now our task is to convey that America is ready -- and that the Court must act, because every day of denial is a day of real injustice, indignity, and hardship to families in the 31 states still discriminating.

I know with things moving so quickly these days, it might be hard to predict, but which state do you think will be next to legalize marriage equality and which state do you think will have the toughest time holding off a ban?

We don't know which will be next...  With more than 70 marriage cases across the country, the landscape is very dynamic. We have now won rulings in the 10th Circuit and the 4th, and will soon see arguments and likely rulings in the 6th, 7th, and 9th, with others to come.  What we need to do is keep building support to show the judges and justices they can and MUST bring an end to marriage discrimination nationwide now.

Evan, you wrote that we need to "keep building support to show the judges and justices they can and MUST bring an end to marriage discrimination nationwide now." How much of a role does public opinion play in the court's decisions?


EVAN: Although in theory the Constitution's command of equality should speak for itself, and the judges should follow the legal roadmap that we've laid out... it's clear from history that the courts also want to know that their rulings will be accepted and will be vindicated by history. Thus the work we have done -- and must keep doing -- to grow public support and show that America is ready is an essential ingredient in our momentum and our roadmap to success.

As you well know, the Fourth District includes the Southern states of Va., NC., SC and W. Va. -- some of the most conservative in the nation. Are you surprised that this district court ruled what seems so quickly?

No. It may feel likely "quickly" to some, but we've been laying the groundwork for this moment for decades, and, intensely, several years... and what we're seeing now is the fruition of millions of conversations, tens of battles, and much persuasion and investment. We need to keep at it. We are winning -- but winning is not the same as won.

I've seen a lot of court decisions this year over gays' right to marry and one state's recognition of another state's marriage of such. They've all gone the same way. When do you think the Supreme court is going to take up this issue and make a final decision on the subject? It feels like they dropped the ball by not doing so completely when they struck down parts of DOMA.

Our strategy has always been not just to get to the Supreme Court, but to win there. And the key to that has always been getting to the Court having built a critical mass of states and support. We didn't quite have that in 2013, but do have it now, which is why our core work now is to convey that America is ready and there is urgency for the Court to rule.  Freedom to Marry is drumming out that message with our partners, with powerful stories, with work on the ground in the South and all corners of the country, and with a real focus on underscoring that we now have majority support in the South and Mountain West as well as the Industrial Heartland, among young Republicans, and even young Evangelicals, as well as business. 

Yesterday after the court ruling North Carolina's Attorney General Roy Cooper responded by saying that the state's ban on the freedom to marry "will almost surely be overturned." Is that premature? What are the possible scenarios?

The AG is right that the discrimination in NC and other states will almost surely be overturned. The question is when. Until it is, of course, we have to keep at it -- persuading, telling stories, showing support, etc. And having political leadership from state attorneys general, as well as governors and others, adds to the case and climate we are making to enable and encourage the courts to keep doing the right thing and finish the job.  That said, it's not done until it's done.

I live in Jacksonville, Fl. I was born in 1965 and today I have no more rights now as a gay person than the day I was born. No marriage, employment, housing protections or right to accommodation. Please send help! In the meantime, every other state has had big encouraging statewide decisions while the two in Florida only affected the counties involved. Once again leaving Jacksonville with virtually NO progress. What's going on here? Thank you Evan. You are doing amazing work. Dave Uible

You are right that until we've ended discrimination in every corner of the country, the work is not finished.  That's why we launched Southerners for the Freedom to Marry (check it out online). That's why we have organizers on the ground in Florida and other Southern states, working closely with local organizations such as Equality Florida. And that's why we have to do the work locally -- with people like you speaking up neighbor-to-neighbor, to make the case in Florida, even as we work to bring national progress that can bring gains to parts of the country we haven't yet reached.  It's the synergy between national and local that best advances our cause.

So there have been a great (yay!) number of judicial decisions this summer that strike down laws banning same sex marriage. Do you think the next step is getting the legislatures of those states to go ahead and pass laws making same sex marriage legal? (Daphne Burt)

No, right now our focus needs to be on maintaining the momentum and continuing to shape the climate that will lead to an end to marriage discrimination via a Supreme Court ruling, ideally in 2015.  But part of doing that work is also local activism and engagement to pass other needed laws, including state and local bans on discrimination in employment, housing, etc.

Supposing VA decides not to appeal, and NC Attorney General has said he will stop defending Amendment 1 there. Do either West Virginia or South Carolina have legal standing to appeal?

Not exactly. There are cases pending now in every state, including in WV and SC. The 4th Circuit ruling will either be appealed or will become the controlling precedent that governs those states. What's needed is more work in WV and SC (like everywhere) to showcase real families in each state harmed every day by the denial of the freedom to marry and the absence of legal protection and respect.

This fall, my husband and I (we are a male couple) are planning a vacation to the national parks of Utah. I remember years ago a recommendation to carry with you medical power of attorney documents when traveling, since some hospitals might restrict access to your spouse unless you can prove you have a legal right to it. I take for granted now that where we live and where we often travel (Oregon, New York), our marriage is recognized. So what happens when we go somewhere else? Should I dig out these papers and take them with us?

Unfortunately, yes. Even with the irrefutable progress we have made -- 19 states + DC with the freedom to marry, up from zero little more than a decade ago -- America is still a house divided because of the patchwork of discrimination state by state and the absence of national equality and federal legislation prohibiting discrimination. That's part of our case to the courts and decision-makers: until the Supreme Court takes a marriage case and rules nationwide, until Congress includes sexual orientation and gender identity in Civil Rights legislation at the federal level, Americans will be vulnerable and unfairly discriminated against.

(Full disclosure: I'm a lifelong Democrat). If in 2016 a Republican President is elected who then has the opportunity to nominate a Supreme Court justice, what's the risk that the SCOTUS candidate would be someone inclined to vote against LGBT rights (including same-sex marriage), forming a 5-4 majority against? Or do you anticipate that in two years' time even the majority of Republicans will have changed their minds? Or do you think this issue will be one of the major ones that costs the GOP the Presidency in 2016?

Clearly there is momentum among Republicans now, as among the country at large... but there still is a long way to go and we should take nothing for granted. Our Young Conservatives for the Freedom to Marry program (check it out online) is pursuing an initiative to strip anti-gay language from the 2016 Republican Platform (much as Freedom to Marry led the way to a marriage plank in the Democratic Platform in 2012). We want to use this and other opportunities between now and then to foster discussion and help move conservatives and Republicans.  56% of Republicans under 45 now support the freedom to marry. We want their numbers, and influence, to grow.


Is this going to have to be fought out one state at a time? I'm told, for example, that Mississippi didn't adopt the Thirteenth Amendment until last year.

No, the Freedom to Marry national strategy (check our website for "Roadmap to Victory") has always been to win national resolution in the Supreme Court. That has always had 2 corollaries: (1) we don't have to win within the 4 corners of every single state, and (2) we do have to win enough states to show a critical mass of support that creates the climate for that Supreme Court national win. We believe we've built that critical mass now -- and with your support, will drumbeat that message and the proof that America is ready so as to continuing encouraging the judges and Justices to finish the job.

Do you think this will be the case that goes to the Supreme Court? I worry that the conservative five will make a jawdroppingly contorted ruling similar to the Hobby Lobby one, or Citizens United.

There are now appellate wins for the freedom to marry in cases out of Utah and Oklahoma -- both from the 10th Circuit federal appellate court -- and now from the 4th Circuit appellate court in this case out of Virginia. We don't know which case the Supreme Court will accept -- one of these, or one of the others also heading their way. Nor do we know when the Court will rule. But Freedom to Marry is working hard to convey to the Court that the country is ready (they CAN take a case and do the right thing) and that every delay in ruling means real unfairness and hardship to so many Americans and their loved ones (they SHOULD take a case and do the right thing). I believe that when the Court takes a freedom to marry case, we will win...but we have to keep building support and moving things forward to increase our chances and, also, to be prepared for another round if that's what it takes to win.

Mr. Wolfson, thank you very much for all of your hard work over many years on this issue. I feel very fortunate to live in a state (Minnesota) where our legislature passed (and with a minimum of drama) marriage equality a couple of years ago so my partner and I have the option of marriage, just like anyone, if we choose. This might be slightly off the subject, but what are your thoughts on how the Hobby Lobby decision might undercut the substantial gains made in marriage equality -- for example, companies refusing to recognize same sex marriages because it violates their religious freedom? How would the courts view such an argument?

The Supreme Court's decision in Hobby Lobby was terrible -- a blow to women's equality, to women's health, to reproductive freedom... as well as a dangerous and wrong-headed blow to the balance our country has carefully and rightly struck to both preserve religious freedom and equal opportunity in the workplace and other public arenas.  But the Court at least professed that its decision was not aimed at carving out a license to discriminate in areas other than contraception. We'll see. For decades, the appropriate standard has been that set forth in the Civil Rights Act of 1964 and similar legislation, which recognizes the compelling interest in prohibiting discrimination when it comes to employment, housing, public accommodations, and other important spheres. There is no basis in Hobby Lobby for a company seeking to discriminate against gay people -- or against legally married couples, gay or non-gay.

What made me change my mind and favor gay marriage was the publicizing of the literally thousands of rights that married partners have that civil unions do not bestow. I now can't believe that I ever opposed it.

When I was doing the world's first-ever trial on whether gay people should have the freedom to marry -- back in Hawaii in 1996 with my non-gay co-counsel, Dan Foley -- 27% of Americans supported the freedom to marry.  Now 59% do, with majority support in every region of the country, and even among young Evangelicals and conservatives. You, like most Americans, have moved on the journey toward people have opened their hearts and changed their minds. People do evolve, and that's why we have to keep making the case. Now is no time to stop persuading, no time to stop giving people a chance to get on the right side of history.  Especially when ending marriage discrimination helps families and hurts no one.

On May 20, Federal District Judge John E. Jones III struck down Pennsylvania's DOMA. None of the named defendants were willing to appeal (one of whom was a Recorder of Wills). The Alliance Defending Freedom (ADF) subsequently teamed up with the Schuylkill County Register of Wills, Theresa Santai-Gaffney to attempt to appeal the decision. The appeal attempt was denied at every level until it got to Supreme Court Justice Alito. Justice Alito ruled that Santai-Gaffney and ADF had no standing. Why does ADF and the County Clerks in Virginia have standing?

The clerks arguably do have standing because they are official agents of the state, parties in the case from the get go -- unlike the PA trumped-up pass by the ADF.  ADF doesn't have standing in itself, but is representing the clerks. We will see what happens as the 4th Circuit case moves forward, and meanwhile there are the 10th Circuit victories about to go to the Supreme Court (which may or may not take one or more of them)... and other cases moving along.  [To be clear, ADF stands for the Alliance Defending Freedom -- an anti-gay organization that is the opposite of its name; it's a right-wing funded firm that exists to oppose the freedom and equality of gay people and to impose one set of religious views on everyone else in the country, in defiance of everyone else's personal and religious freedom.]

To me, the best thing about the Fourth Circuit Court is the succinctness of the argument that "we do not legislate on the basis of what makes people uncomfortable."

That certainly was one of many good principles invoked by the court. Close to my heart is the affirmation that this court, like several others, made...that we're not asking for a right to same-sex marriage; we're talking about the same freedom to marry that all Americans enjoy, and that loving and committed couples who are gay should not be denied.  We all have a stake in constitutional freedoms such as the freedom to marry, the essence of which is the freedom to marry the person you fall in love with and want to build your life with, the person who is precious and irreplaceable to you.

Evan, People know you primarily through your work. I've interviewed you before about your personal life, especially your husband and your wedding. Can you share some of the personal Evan with us?

Well, that is a good way to end.  I don't usually talk about myself, because to me this is about basic values of fairness and living up to America's promise of liberty and justice for all.  But I do believe in the power of each of us telling our personal story and making personal asks -- conversations person to person have been the big engine of change and the way in which we've created the climate for the legal and political gains we campaigned (and are campaigning) for.  

So let me just say that in the words of that old "Hair Club for Men" commercial, I am not just the president of Freedom to Marry; I am also a client... and the day I was able to marry my beloved (after we won in NY) was a day of joy and meaning for me, for him, for our families, and for our friends and community... and I still feel its glow nearly 3 years later.  I wish everyone in the country, no matter what state we live in, the same opportunity to share in that joy, as well as the protections, security, responsibilities, and community it brings.  And that is why we have to continue working to end marriage discrimination.  By working together -- -- we can make people's lives better and get our country where it needs to be.  Thank you.

I'd like to thank Evan for joining us today -- especially on such short notice -- since we only got news of the Fourth District's ruling yesterday afternoon. For more info about Freedom to Marry, check out the website. And thanks to all of you for your questions. I'll be back in two weeks with another edition of Civilities LIVE.

In This Chat
Steven Petrow
Steven Petrow is a respected journalist and the go-to source for modern manners. Petrow writes the "Civilities" column for The Washington Post as well as "Manners Hero" for Parade and "Medical Manners" for Everyday Health.
Evan Wolfson
Evan Wolfson is the founder and president of Freedom to Marry, the campaign to win marriage nationwide. He is author of Why Marriage Matters: America, Equality, and Gay People’s Right to Marry. In 2004, Time magazine named him one of the "100 most influential people in the world," and in 2012, he won the Barnard Medal of Distinction alongside President Barack Obama.
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