Mary L. Bonauto is the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD). Since 1990, she has litigated in the state and federal courts of New England on discrimination issues, parental rights, free speech and religious liberty, and relationship recognition. She and two Vermont co-counsel won a 1999 ruling that same-sex couples are entitled to all marital benefits and protections in Baker v. State of Vermont, which led to the nation’s first civil union law. She was lead counsel in Goodridge v. Dep’t of Public Health, the first high court ruling striking a marriage prohibition for same-sex couples; co-counsel in Kerrigan v. Dep’t of Public Health, in which the Connecticut Supreme Court also ruled for marriage; advocated in state legislatures for marriage; and served on the Executive Committee of the 2009 and 2012 Maine ballot campaigns. Mary led GLAD’s federal court challenges to DOMA in Gill and Pedersen, leading to the first District Court and Court of Appeals victories against DOMA, and then coordinated amici briefs for the Windsor case at the Supreme Court.
1. As a leader, how do you help to push and encourage others to join the types of groundbreaking decisions that would lead to victories like Goodridge – especially among concerns about the feasibility of such an undertaking?
GLAD’s work is premised on clear constitutional values, belief in the worth and dignity of all people, and optimism in change over time. Our cases tend to focus on what is “fair,” which includes both pro-equality components that level the playing field for all as well as anti-subjugation components that acknowledge the persistence and depth of prejudice. We have confidence that with the right case (or bill) at the right time, people will stand up for our shared constitutional values around equal citizenship, avoiding double standards, and concern for the welfare of all people. Of course, optimism without work won’t get you far. We look at every angle, including every argument that can be leveled against us, and think about how to respond and, where possible, how to find common ground, even before we move forward. Arguments without soul won’t get very far either, which is why the plaintiffs in our cases and real people in legislative initiatives are so central. It is them and their stories that convince others that there is a legal (often moral) dilemma that must be resolved – despite their individual discomfort – by resort to our national values of equal treatment and justice for all.
2. How can a leader most effectively deal with his or her opponents, both professionally and personally?
Institutionally, GLAD strives to stay on the high road, and that culture has been helpful for all of us. Even though there have plenty of times when our opponents demonized and maligned us, we consciously avoided doing the same self-defeating thing to them. After all, when you seek respect for your own common humanity, that means respecting the humanity of others. I suppose that is a version of the golden rule. Keeping focused on the LGBT people we serve, and our collective hopes for a brighter and freer future, helps with perspective too.
Overall, we have all tried to keep our eyes on the prize, tell the truth, work with integrity, eviscerate the arguments against us, and treat people with respect, because it is the best we can do. That is not to say that I have never been boiling mad or very hurt or terribly saddened, because of course I have.
3. What was your experience working with the Boston Bar Association in the fight for marriage equality?
The BBA was a key partner both before and after the Goodridge ruling. First, the BBA worked through its committees, ultimately forging a consensus to urge the Council to support marriage. After full throttled debate, the Council agreed and the BBA then submitted a terrific amicus brief to the SJC addressing the protections and responsibilities conferred by marriage, drafted by Bingham McCutchen. Perhaps it was with the BBA’s brief in mind that Chief Justice Marshall commented, “The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death.”
After the Goodridge ruling, the BBA was there to remind the public that the ruling was grounded in principles of liberty and equality dear to all of us. There were several lawsuits to thwart the ruling and constitutional amendment proceedings to undo it. In December 2003, the State Senate crafted a civil union bill which “preserved” marriage by barring access for same-sex couples and allowed state-level protections. It then asked the SJC for an advisory opinion as to whether such a bill met the mandate of Goodridge. BBA President Renee Landers spoke inspiringly at a press conference and, standing with the plaintiffs in Goodridge, joined an amicus brief arguing that “creating a separate status for a group of people when there is no legitimate reason for doing so is inherently unequal, and therefore unconstitutional.” Four of the Justices opined that “maintaining a second-class citizen status for same-sex couples by excluding them from the institution of civil marriage is the constitutional infirmity at issue.” Bonnie Sashin at the BBA was always in touch about how the BBA could help, and the BBA spoke out at critical junctures to urge defeat of constitutional amendment proposals to undo Goodridge or substitute civil unions for marriage. Many individual BBA leaders and members were great advocates with their own legislators and with other attorneys. Quite deservedly, the BBA was there to celebrate the outpouring of joy that accompanied the first marriages on May 17, 2004.
The BBA’s commitment has not slackened. It has joined amici briefs in several cases challenging the federal Defense of Marriage Act, including at the U.S. Supreme Court, and the portion requiring discrimination against gay people’s marriages has now been declared unconstitutional. The BBA has also stepped up for justice in other marriage equality cases around the nation.
4. From where the nation and legal system is at this point, what are the next steps, and what leadership is necessary to continue on in the fight for marriage equality?
To succeed, any justice struggle must engage all three branches of government and the court of public opinion. Ten years after Goodridge, we are at a point when each is fully engaged. We have now won marriage in the courts (starting with Massachusetts), in state legislatures (whether Massachusetts legislators rebuffing a constitutional amendment to reverse Goodridge in 2005 and 2007 or Vermont’s dramatic override of a Governor’s veto in 2009), and at the ballot (starting with Maine voters changing their minds and voting for marriage in 2012 after having voted against it in 2009, along with Maryland and Washington).
Chief executives can be tremendous leaders, and Governor Patrick led the way among Governors. His leadership made a tremendous difference in defeating the final attempt to amend the constitution here in 2007, along with the leadership of then Senate President Terese Murray and then House Speaker Sal DiMasi. It is only since then that marriage has been secure in the Commonwealth. Nationally, 14% of Americans have changed their minds to support marriage equality from 2003 to 2013. President Obama’s description of his journey from opposing marriage to supporting it is exactly the kind of transformation happening for many Americans, both about marriage and about LGBT people more generally.
None of these accomplishments would have been possible in a vacuum. No minority can succeed without the support of allies, and allies have been crucial at every stage in the struggle here. There were early movers like the Boston Bar Association and Massachusetts Bar Association, a spectrum of civil rights groups, and children’s advocates, who joined briefs in support of the Goodridge plaintiffs. Now our allies in this struggle include many major faith groups who support the dignity and equality of gay people and same sex couples, as well as labor and business (the three largest labor organizations and 278 employers filed separate briefs in the Supreme Court DOMA litigation), and many other important voices.
Since the Supreme Court’s rulings in Windsor (striking down DOMA Section 3) and Hollingsworth (finding there was no jurisdiction to review a 9th Circuit ruling striking down California’s Prop 8), there has been tremendous activity. State legislatures in Illinois and Hawaii approved of marriage within days of each other in November, just as there was a burst of activity in the spring with Delaware, Rhode Island, and Minnesota passing marriage laws. New Jersey’s Supreme Court cleared the way for marriage by refusing to stay a lower court’s ruling that the “civil union” nomenclature thwarted access to federal marital protections now available post-Windsor, demonstrating that marriage was necessary to provide equality. There are nearly 40 lawsuits pending around the nation, most in federal court, in purple and red states, and people are engaged on the issues. My hope is that over the next few years, the Supreme Court will ultimately settle the issue as the final arbiter in our federal system.