Love & Marriage Attorney Defends The Hawaiian Ruling That Allows Same-Sex Marriages
When expressing his point of view, Evan Wolfson doesn’t tend to equivocate. He’s direct, succinct, quick with his facts and forceful in his speech.
In short, he’s everything you would want in an advocate. And he’s especially the advocate you would want if your cause were one that society at large is only just beginning to identify, much less recognize.
In Wolfson’s case, that cause is marriage between people of the same sex - an issue that jumped into national awareness in December when a ruling by Hawaiian Judge Kevin Chang made his state the first in the union to legalize same-sex marriage.
Wolfson, a New York lawyer who served as co-counsel for the plaintiffs in the Hawaii case, will talk about the ramifications of the decision Tuesday night at Gonzaga University.
And when he does, the chances are that you won’t hear him freely use the term “same-sex marriage.”
“I don’t call it same-sex marriage,” Wolfson said during a recent phone interview from his office at the Manhattan-based Lambda Legal Defense and Education Fund. “It’s not same-sex marriage. It’s marriage.”
Period.
The issue of marriage between gays and lesbians is hardly new. The case that Chang ruled on, Baehr vs. Miike, began back in 1990 when three couples - two lesbian, one gay - filed for marriage licenses.
Hawaii’s Department of Health denied their requests, and in 1991 the couples jointly brought suit. Their contention: that the department’s action was unconstitutional.
Two years later, the Hawaiian Supreme Court sent rumbles through both legal and legislative circles when it ruled that, under the state’s constitution, granting marriage licenses to opposite-sex couples while withholding them from same-sex couples amounted to sex discrimination.
The court remanded the case back to the trial level, ordering the state to show why there was a “compelling interest” to warrant such discrimination.
That was the case Judge Chang heard during a nine-day, non-jury trial in September. On Dec. 3, Chang released his 46-page opinion.
“Simply put,” Chang wrote, “the state has failed to establish or prove that the public interest in the well-being of children and families, to the optimal development of children, will be adversely affected by same-sex marriages.”
Almost immediately, Chang’s decision - and in many cases Chang himself - came under attack.
“This is a slap in the face of the Hawaiian people and Americans everywhere,” said Robert H. Knight, director of cultural studies at the Washington-based Family Research Council. “Once again an activist judge has flouted public opinion and a perfectly reasonable law and imposed his own agenda.”
“We’re extremely disappointed that Hawaii chose to unravel a 6,000-year-old institution consisting of a man and a woman,” said Jay Sekulow, an attorney for the American Center for Law and Justice in Virginia Beach, Va.
In a commentary that ran in The Spokesman-Review, syndicated columnist Cal Thomas echoed such views.
“It is not unfair to ask that if ‘gay marriage’ can be mandated as having equal moral status with marriage between a man and a woman, what’s next?” Thomas asked. “On what basis do we prohibit the polygamist from claiming equal treatment under the law and before society, or prevent adult-child ‘marriage’? Preposterous? Not any more.”
But “preposterous” is exactly what Wolfson does say - although having been educated at Yale University and Harvard Law School, he’s obviously capable of coming up with an even better rebuttal.
Several times over, in fact.
“The same crowd running around saying the sky is going to fall if gay people are allowed to get legally married have in the past run around saying the sky will fall if blacks and whites are allowed to get married, the sky will fall if women are treated equally within marriage, the sky will fall if people are allowed to divorce, the sky will fall if people are allowed to use contraception,” Wolfson said. “This is not the first time we have heard these kinds of predictions of the end of civilization as we know it if discrimination stops.”
And discrimination, Wolfson insists, is the core issue.
“I’m not asking for anything different,” he said. “I’m saying stop discrimination in marriage.”
Chang’s decision was based partly on his belief, he wrote, that gays and lesbians “can be fit and loving parents. … (S)tudies and clinical experience presented at trial suggests that children of gay and lesbian parents and same-sex couples tend to adjust and do develop in normal fashion.”
But Wolfson’s position is even more basic, pitting constitutional rights against what he sees as blatant discrimination.
“We’re talking about two people who are in love,” he said. “We’re saying that gay people should be able to do the same things that non-gay people do: find a person to love, fulfill that dream and get married.”
As for columnist Thomas’ contention that legalizing same-sex marriage will lead to, say, polygamy - well, Wolfson doesn’t consider this a serious question.
“What in the world does one thing have to do with the other?” he asked. “If non-gay people can’t marry four people, then gay people shouldn’t be allowed to marry four people. Or your child.
“But,” he added, “I think a more pointed response to Cal Thomas is that when people don’t have a good reason to prevent gay people from getting married, they change the subject. And that’s what that is: It’s a scare tactic, not an argument.”
Scare tactic or no, 1996 saw 37 states consider legislation to deny the legality of same-sex marriage. Sixteen states have adopted such laws. In Congress, the so-called “Defense of Marriage” act passed handily (342-67 in the House of Representatives, 85-14 in the Senate). And it was signed by President Clinton.
In Olympia, the Republican-controlled House of Representatives voted by a 2-to-1 margin to ban same-sex marriages, but the Democrat-controlled Senate killed the measure. Republicans, who now control both houses of the Legislature, have promised to readdress the issue in the coming session - and this time they have the votes to push it through.
As one of his last acts, outgoing Gov. Mike Lowry sponsored a bill to legalize same-sex marriage. But as late as Wednesday, Democratic Gov. Gary Locke, a past supporter of gay issues, was declining to say where specifically he stood on the issue.
Idaho, on the other hand, already has outlawed same-sex marriage. And Republican Sen. Dirk Kempthorne hailed the congressional bill as a way of “saying we want to maintain marriage as it has existed from the foundation of the United States and, in fact, as it exists throughout the world today.”
As far as Wolfson is concerned, though, such lawmaking ultimately won’t make a difference once Hawaii’s Supreme Court upholds Chang’s decision, which Wolfson expects to occur either this year or early in 1998.
“They have in front of them a very powerful decision by a highly respected judge,” Wolfson said. “I think Judge Chang’s analysis will be very persuasive to the state court.”
Then, he says, Congress’ “Defense of Marriage” act, which he labels “a political stunt,” will run squarely up against the U.S. Constitution.
“The federal anti-marriage law will have absolutely no effect in regard to other states because Congress has no power to tell states whether they can or can’t recognize other state’s marriages,” Wolfson said.
As for states that pass their own bans against same-sex marriages, Wolfson says those bans will have no effect because of what is called “the Full Faith and Credit clause” of Article IV of the U.S. Constitution. Which means, he argues, that just as each state is required to recognize the legality of a divorce granted in another state, then each state would have to recognize a marriage performed in another.
“Less than 50 years ago, we saw a similar turbulence around divorce,” Wolfson said. “And there was a time when some states led the way in allowing people to legally terminate a failed marriage when other states, under pressure, didn’t want to recognize it. Ultimately, they went to the Supreme Court, which said that this (situation) is untenable.”
For Wolfson, the whole issue comes down to two points: One, he said, “It’s very important to make clear that we’re talking about civil marriage. This is not about forcing churches to perform marriages.” And two, “What’s under attack here is not just gay people but the separation of church and state and a society that truly respects all families and the equality of everyone.
“If people don’t want to come to my wedding, that’s their business,” Wolfson said. “But they shouldn’t try to stop me from getting married. You don’t have to approve of whom I marry, but don’t try to stop me from making the choice.
“That’s what a free country is - a country that truly respects the equality of all, and that’s what I think people need to hear.”
, DataTimes ILLUSTRATION: Illustration by Rick Nease
MEMO: This sidebar appeared with the story: THE ISSUE Attorney Evan Wolfson will deliver a speech titled “Same-sex Marriage: The State of the Union” at 7:30 p.m. Tuesday at Gonzaga University’s COG. Admission is free.