Rewriting History: The Revolution Began In 2008

Recently, The New York Times published an excerpt from Jo Becker’s forthcoming book Forcing the Spring: Inside the Fight for Marriage Equality.  The excerpt in question detailed the end of President Obama’s phony “evolution” in coming to support marriage equality.  Becker’s book however, has set off something off a nuclear reaction of criticism.  I have not read the book, but from all that I have read, that opprobrium is more than merited.

The basic flaw of Becker’s book, which she herself does not deny, is that she either ignores or disregards practically everything about the marriage equality movement prior to the 2008 election when both Obama and California’s noxious Proposition 8 won at the polls.  The heroes of Becker’s book are: (1) a then-unknown political consultant named Chad Griffin who founded Americans for Equal Rights (AFER) to overturn Prop 8 in the courts and later became president of the Human Rights Campaign; (2) David Boies and Ted Olsen, the superstar lawyers who headed up the legal team (hired by AFER) to overturn Prop 8 and by extension bring marriage equality to the whole nation; and (3) Ken Mehlman, the (gay) former head of the Republican National Committee who, along with Olsen, allegedly helped make marriage equality palatable to Republicans–and who was also a major fundraiser for AFER.  According to Becker it was their combined efforts that led first to public White House embrace of marriage equality and then victory at the Supreme Court.

Except, of course, that is not how the story goes.  2008 was an important touchstone, but it is only one part of a larger story that has not been written yet and has not been finished.  In framing her story as such, Becker ignored the entirety of the marriage equality movement, and worse, has slighted its most important architects.  One of those architects, Andrew Sullivan, is outraged, and has posted a great many blog posts to that effect.

Now I am no fan of Andrew Sullivan.  He is myopic, stubborn, self-promotional, and at times downright dishonest.  His continued bashing of the gay left for the resignation of Brandon Eich, rather than say, Mozilla (who got rid of him) or Eich himself (for donating to Prop 8) is more about Sullivan’s political agenda than any kind of passion for free speech.  In Sullivan’s world, the gay left deserves the blame.

Nevertheless, in this instance his reading appears to be absolutely true.  It is because Sullivan is the messenger, probably too many people will refuse to hear his message, and it is a message that needs to be heard.  Becker, for her part, herself did not acquit herself particularly well in her response to the criticism, effectively saying she was not trying to write an overarching history–an about-face from her publisher’s publicity materials and even her own writing.  What Becker’s critics (including Sullivan, Nathaniel Frank, Chris Geidner, Isaac Chotiner, Gabriel Arana, Dan Savage, Frank Rich, Jim Messina, John Aravosis, Michelangelo Signorile, Noah Feldman, and many others) have pointed out is that Becker disregarded or ignored the marriage equality movement’s most important activists and touchstone moments while propping up the lesser lights of the Prop 8 team to whom she had full access.  Among the disregarded include Evan Wolfson, Mary Bonauto, and Sullivan, as he himself was quick to note.

But Sullivan, despite being correct, engaged in a little revisionism of his own.  Yes, it is true that his 1989 cover story for The New Republic was a major statement, particularly as he made a conservative case for marriage equality, and yes it is also true that many gay people criticized him (and Wolfson), sometimes especially viciously, for advocating marriage rights.  But Sullivan’s rants make it seem like marriage equality was his brainchild, born in 1989, and aided in part by Wolfson (a staunch liberal) and some other gay conservative and libertarian thinkers.  Sullivan was by no means the first person to make the case for marriage equality; same-sex unions have existed around the world throughout recorded history.  In fact, a little over a month after Sullivan wrote his cover story, six same-sex couples in Denmark entered into the world’s first registered partnerships, which was like civil unions but without child custody rights.  As the New York Times noted at the time, registered partnerships in Denmark were the culmination of “a 40-year campaign by gay rights advocates.”  (Full marriage equality did not come to Denmark until 2012.)  While it is tempting here in the United States to think that the rest of the world follows our lead on LGBT rights because of Stonewall and such, the truth is that the movement for gay rights and same-sex marriage was a central European (re: German) innovation.

Even in the United States, the push for same-sex marriage did not start with Sullivan or even Wolfson, whose 1983 law school thesis was about marriage equality.  (Wolfson was probably the most unfairly maligned figure in Becker’s book, tarred as a reactionary and an obstacle to progress, when the truth is that no one has been more important to the success of the marriage equality movement.)  In truth, even Wolfson was late to the game.  In 1970, Richard John Baker and James Michael McConnell tried to get a marriage license in Minnesota and were tried.  They appealed their case all the way to the United States Supreme Court, who turned it down for “want of a substantial federal question.”  (Although Minnesota now has marriage equality and clearly the Supreme Court has recognized that there is a substantial federal question involved, Baker and McConnell’s case, Baker v. Nelson, was not explicitly overturned and still lurks in opposition briefs in marriage equality cases.)  Other same-sex couples in the 1970’s also tried to get marriage licenses with no more lasting success.

The most important motivating factor in the battle for same-sex marriage however, was not a person but an epidemic–a fact that no one involved in the marriage movement would deny.  When the AIDS pandemic hit in the early 1980’s, it was seen as a gay disease; the original name was not AIDS, it was GRID–Gay Related Immune Deficiency.  The AIDS epidemic was therefore treated not as a health crisis, but as a moral judgment on a deserving population of degenerates.  (Never mind that other populations were also suffering.)  The lack of legal protections for couples became immediately and horrifically apparent.  Two men who built a life together learned that the law did not protect them when the worst hit.  Same-sex partners were denied hospital access to their dying lovers, often by spiteful, homophobic family members.  Survivors were thrown out of their homes, and their assets were seized.  (Those who now call gay people bullies?  They were the ones who remorselessly threw same-sex partners out in the streets.)   It was out of this mass tragedy, not Prop 8, that the marriage movement took on an urgency that is only now coming to fruition.  There were major setbacks along the way, most famously DOMA in the 1990’s, and the slew of state constitutional bans that followed, particularly in the 2004 elections.*  Nevertheless, despite the worst backlashes, it was clear to all but the most pigheaded reactionaries that progress was marching only forward, just longer than hoped.  This was not a movement that had lost its way as Becker would have you believe, but one that was steadily influencing the law and public opinion to get to the point where a federal court challenge was feasible.  And until 2003, the movement labored under the shadow of Bowers v. Hardwick, a reminder of the dangers of a Supreme Court setback.

To disregard all this, to treat Evan Wolfson, a man who devoted most of his professional life to the cause of marriage equality, so disdainfully, to nearly ignore Mary Bonauto,** in favor of Griffin, Boies, and Olsen is both shameful and misguided.  Let us not forget that Prop 8 was not a resounding victory for marriage equality; it was a limited case won on a technicality and will be forever overshadowed by its immensely more important companion case United States v. Windsor, which Becker astonishingly downplays (Signorile claims that Becker threw Edie Windsor and her attorney Roberta Kaplan under the bus).  Getting back California was a big win, but it was nowhere near the “marriage everywhere” decision that AFER had promised.  Windsor, on the other hand, (and I cannot say this enough) is the most significant civil rights decision since Brown v. Board of Education.  Around the country, every federal court decision about marriage equality orbits around Windsor.  In that sense, Olsen and Boies dramatically failed.  Even now, it is entirely likely that Boies and Olsen will not be first in the race back to the Supreme Court, as they are focused in Virginia and the cases in Utah and Oklahoma are much more likely to get there first.  (I linked to Feldman’s piece above, and it is worth linking to again to note how risky a game Boies and Olsen played, and how we can only hope they don’t get a second bite at the apple.)

So as easy (and tempting) as it is to Sullivan, he is absolutely correct that Jo Becker’s history of the battle for marriage equality is access journalism of the worst kind.  Griffin, Olsen, and Boies gave her the unfettered access, and they are the ones who are lionized.

Footnotes: 

*  I once went to hear Dan Savage speak, something I recommend everyone should do, and someone asked him whether Ken Mehlman has done enough to be forgiven for his part in the 2004 elections.  Savage equivocated during the course of his answer moving from “not yet” to “yes,” which shows how much ambivalence Mehlman engenders in the LGBT community.  For my part, no matter what Ken Mehlman does, no matter how many times he apologizes, no matter how much money he raises for AFER, no matter how many Republican politicians he talks to, I will never forgive him for his part in 2004.  He exploited fear and hatred of gay people in order to make the world a worse place for everyone.  Sometimes an apology, no matter how sincere, can’t undo the damage.

** I greatly admire Mary Bonauto, who has proved time and time again to be the most important LGBT rights attorney in the country.  Bonauto brought the LGBT rights movement its first two important, permanent legal victories in Vermont (civil unions) and Massachusetts (marriage).  Bonauto and her organization Gay & Lesbian Advocates & Defenders (GLAD) were involved in every single marriage equality triumph in New England, including wildly successful challenges to DOMA that were concurrent with Windsor.  In fact, had Elena Kagen not overseen the Justice Department’s response to the DOMA cases in the First Circuit, we might today be extolling the virtues of Gil rather than Windsor.  The Supreme Court chose Windsor, a legally–if not factually–identical case, because all nine Justices would be present.  Bonauto did play an important part in Windsor; she coordinated the amicus briefs, which meant that she was heavily involved in Supreme Court strategy.  Having said that however, Bonauto is not–as some people refer to her–the Thurgood Marshall of the LGBT rights movement, despite the fact that she is the movement’s most important legal figure.  This is a statement which misunderstands the history of the Civil Rights movement and makes a false analogy.  The Civil Rights movement was a decades long, well-structured, campaign that ran almost entirely through the NAACP and its autonomous-in-name-only legal arm the Legal Defense Fund (the two entities are now completely separate).  As head of the Legal Defense Fund, Thurgood Marshall was the central figure of the movement’s legal strategy, especially at the Supreme Court where he personally argued multiple cases.  A somewhat better analogy is in the (non-abortion) gender equality cases of the 1970’s, which ran through the ACLU’s Women’s Rights Project.  As head of the Women’s Rights Project, Ruth Bader Ginsburg shaped the movement and its direction.  GLAD however, is one of several LGBT rights organizations and, unlike some others, limited to a geographic region (New England).  Although groups like GLAD, Lambda, and the ACLU may work in tandem, there is also a competition between them, which Ariel Levy discussed in her New Yorker article about Edie Windsor.  There is no Thurgood Marshall (or Ruth Bader Ginsburg) of the LGBT rights movement.  This is not a knock on anyone, it is a recognition of the LGBT movement’s decentralization.

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