MARTHA MINOW: Hi, everybody.
I'm Martha Minow.
And it is my great,
great pleasure
to welcome and officially
introduce Mary Bonauto.
But I don't like where
people are sitting because we
have to go like this and this.
So could people move so that
that's more in the center?
Sorry to do that, but that
would be really helpful.
Thank you.
So as you're
moving, I get to say
some great things about her.
Mary is the Shikes Fellow
in Civil Liberties and Civil
Rights here at
Harvard Law School.
And that is a source of
great delight for all of us.
I'm going to say something
she probably doesn't like.
She's sometimes
described as the Thurgood
Marshall of the same-sex
marriage movement.
She didn't like that.
But it's actually
accurate, because it
may seem to some of
you that, wow, things
are really happening
and it's going so fast.
For some people, it's been
10 years, 15 years, 20 years,
30 years working on this.
And the person that I know
who's made the most difference
on this is Mary Bonauto.
And she has, of course,
been the strategist
for the state court approach.
We're going to talk
about that together.
She's also been incredibly
effective at coordinating
often not coordinated people.
And so I'd like to
talk about that, too.
And if we have time,
I'd like to talk
about comparative
social movements
because Mary's also just a
terrific student of, well,
what's worked and what
hasn't worked when you try
to use law for social change.
But most of all,
what I want to do
is make a lot of
time for you all
to have opportunities to ask
questions and engage with her.
But let's just start
with, how did you start
getting into this business?
How did you get into this field?
MARY BONAUTO: Into law?
MARTHA MINOW: Yeah.
MARY BONAUTO: I
mean, sometimes I
think it's because
I had three brothers
and I was the only girl and
I had to make things right.
But setting all that aside,
I just-- what can I say?
Some people just have
an underdog mentality.
I do.
These issues around justice
and our nation's struggle
around justice and
making those promises--
those bedrock promises--
true for more and more people
over time are something that
just really speaks to me
and I care very deeply about.
And then of course,
eventually coming
out-- which was not a good
thing at the time that I did--
and realizing that,
boy, my life was
going to be really different.
My life might even really
be over, and realizing
that, no, that wasn't true.
And law was one
way of making sure
that my life wouldn't be over.
I could either just
suffer from the system
or I could change the system.
Decided to opt on the
change the system side.
And then I was very,
very fortunate.
I was a lawyer in
private practice
in Maine in the late 1980s.
And in the late
1980s, HIV was really
ravaging the gay community.
I was a brand new lawyer.
I volunteered to help.
And that meant I got
a lot of requests
to help people who were
suspected of being gay,
fired immediately.
I got a lot of
experience really fast.
And so when Massachusetts became
the second state in the nation,
in November 1989, to
enact a nondiscrimination
law so you couldn't fire
people-- discriminate
in employment, housing, public
accommodations, and credit--
GLAD, where I now work--
Gay and Lesbian Advocates
and Defenders--
was going to hire
its first ever lawyer to deal
with sexual orientation issues.
And I applied thinking I
would never get this job.
I was only two and a half
years out of law school.
And I probably shouldn't
have gotten the job
and I would never get it today.
But I applied I got it.
And I thought, oh, I'll
do this for two years.
I'll be exhausted.
I'll go back to
private practice.
And that was 25 years ago.
MARTHA MINOW: [LAUGHS]
There were some real
setbacks at that time.
There were some terrible
court decisions.
There was certainly backlash
even when there was progress.
How did you anticipate
what the timeframe
would be for the work
you were going to do?
You thought initially you'd
be there a couple years,
but now what do you think?
MARY BONAUTO: Well,
when I first got there--
it's probably going to
seem like an alien planet,
but I will say it was
based here in Boston.
And at that point,
the overt violence
against the LGBT
community was rampant.
And frankly, there
were a lot of concerns
that often, police officials
were directly involved in it.
And sometimes there
was evidence of that.
And so it was just your basic
physical safety-- moving around
felt very compromised.
And it was also
true at that time--
some of the public
accommodations cases
I brought actually
involved people who
were simply patronizing
businesses, from used car sales
people to Dunkin'
Donuts, who were then
attacked because
someone thought,
usually correctly,
that they were gay.
It was that kind of environment.
I know it's hard to imagine
now, but that was true.
And then of course
when I started at GLAD,
it was just a few years
after the Supreme Court
had decided a case called
Bowers versus Hardwick, which
upheld states'
power to criminalize
what they call sodomy.
And as a result,
there was this taint
that came out of
the Supreme Court
across the nation-- the idea
that all gay people were
criminal.
And in fact, that
was a question I
was commonly asked at the time.
And so there was this real
sense of illegitimacy and stigma
and fear.
So from my perspective,
part of what I wanted to do
is try to get a handle on the
violence, turn the tables,
and say, hey, you should be
prosecuting these crimes,
not committing them.
This is something
that's serious.
There were actually
laws on the books that
needed to be enforced
and try to get
some of those laws enforced.
And I brought a lot of
employment discrimination
cases.
And initially, no
one would touch them.
The idea was that it was some--
this is a quote from a layer--
like, this is way too militant.
How can you expect
me to do this?
And really, all I
was asking to do
was to partner with
a more senior lawyer
to enforce a duly enacted
law of the Commonwealth.
But eventually, the
private bar got it--
that these cases were
real, legitimate,
and in fact, you could
make money on them, too.
And that allowed
us to transition,
I think, into some other work.
Because as I was just
saying to a gentleman
before we started
here, it was one thing
to be able to just be
able to move about safely,
and then of course
to have your job
and hopefully not be terminated
once somebody realized
your sexual orientation,
and eventually
even to be out on your job.
But then there was this
other whole conversation
that obviously needed to
happen about, well, guess what?
This person who
you work with may
go home at night and have
a partner of 10 years
or may have kids.
And guess what?
They're legal strangers
to their partner.
They have no legal connection to
them and no means for doing so.
Likewise, unless they're the
birth or adoptive parent,
they're going to have no legal
connection with their child.
And that really, I think,
reinaugurated a different phase
of our family law work.
We'd already been
doing cases where
people had been challenged
about their ability
to maintain custody
of their children
when their sexual orientation
was revealed and so on.
And anyway, we've just
continued to build over time.
And I remember in the
early '90s and so on,
one of the things you would
never talk about was marriage.
Just don't talk about it
because if you say anything
about marriage or suggest
that anything that's going on
might someday lead to
marriage, forget it.
You're not going to get it.
And guess what?
When you enact
nondiscrimination laws,
it doesn't lead to
marriage, in fact.
But it's one of those
sort of stepping stones
that changes the discussion
about what's right
and what's wrong.
Because law, of course, has
enormous normative influence
about what is permissible
and what is not.
So when you start saying
that actually, it's
not OK to beat up the
gay people-- actually,
there are laws to
prosecute people who do.
Actually, you're not supposed
to fire people simply
because who they are-- you're
supposed to judge how they're
doing on their jobs--
and you start changing
that normative discussion, it
does eventually pave the way
for, really, full citizenship.
And part of that's
been marriage.
But part of it's also been
acknowledging LGBT people
in all walks of life, in all
ages, and in every context.
MARTHA MINOW: Litigation
is one of your major tools.
How do you locate litigation
amid all of the tools?
MARY BONAUTO: When
I started at GLAD,
litigation was a primary tool
because for the most part--
it's not like we weren't engaged
in the legislative process.
We were.
But it was mostly defense--
trying to fend off bad laws.
The idea of trying
to enact protections
was extremely difficult.
That has changed.
It's not like legislatures
are eager to do all kinds
of positive LGBT things.
They're not.
It's always a struggle,
even today, even here
in Massachusetts.
But having said that,
the legislative branch
is more open.
And so we do now
much more effectively
engage in litigation,
in legislation
with the executive branch,
with agencies, and sometimes
directly over their
heads, and then also,
extremely importantly, with
the court of public opinion.
And I think to make lasting
change in this country,
you need to be engaged in
each of those quarters.
And the public opinion piece--
I never thought I'd end up here,
but I just found
myself inevitably just
talking to people from
all walks of life--
obviously not just LGBT
people-- but trying
to make the case for
fairness in whatever context
it was-- in schools
and why schools should
redress completely
hostile behaviors
of particular students rather
than blame the students
for being who they were.
I just found myself
having to really make
the case for why something
is right almost regardless
of whether something
is legal or not.
So I really think
that's the key, is
working in all four branches.
MARTHA MINOW: You
described the early '90s.
I remember very well being part
of some conversations where
people said, well, marriage--
it's the wrong thing
to go for-- big debates, big
arguments within the movement.
So how did marriage start
to become a priority?
MARY BONAUTO: Marriage
became a priority.
And it became a priority
from the ground up.
And my first week on the
job the GLAD in 1990,
I received a call from a
couple in western Massachusetts
who'd been together 10 years
and wanted to get married.
And there'd been a little bit
of fanfare in the gay community
that a lawyer had
been hired at GLAD.
So they thought, OK.
Finally, somebody will
deal with this for us.
And I said no.
And I said no so many times to
so many people over the years
because it didn't feel
like the right time.
I mean, I felt-- in 1990
on my first day on the job,
I'm going to talk to
police departments
about how they're hunting
down gay people to arrest.
It didn't feel
like the right time
to bring forward a
case on marriage.
And so part of it
is, I want to say
there's just been this steady
drumbeat of what is really
an understandable human
aspiration for some people
to want to have and participate
in this enormous social and
legal institution that
really is imbued with values
of love and commitment.
And I know people have
their own marriages
and their ideals
are what they are,
but it's a huge social
and legal institution.
And I will say that the
government's exclusion
of same-sex couples
from marriage
is a profound statement
of disrespect that
affects LGBT people
in all walks of life.
So I do feel like it has to be
addressed on the human level
and on the governmental level.
But the other thing that
happened was in 1993,
the Hawaii Supreme
Court issued a ruling
that it looked to them like
a trial court had erred
in dismissing a case brought
by three same-sex couples
because they thought
that there was
sex discrimination involved.
And they wanted to send
the case back for trial
so that Hawaii could demonstrate
its compelling interests
in maintaining this
discriminatory system.
MARTHA MINOW: Stop
there one second.
Let's everybody understand this.
This was on sex discrimination.
So the theory was--
MARY BONAUTO: The theory--
it was a very formal theory
that a man who
wanted to marry a man
could not, but
could marry a woman.
So his own choice of
who he wanted to marry
was constrained by his own sex.
There's also-- and
this is a big part
of what we do-- a part
of what we do now--
and I'm sorry I'm jumping ahead.
But sex stereotyping and the
idea that a man should only
be attracted to a
woman is a huge part
of what we do in advancing
sexual orientation, sex,
and gender identity cases now.
But anyway, I'll bracket that.
Anyway, what
happened, essentially,
was-- I guess to not
put too fine a point
on it-- all hell broke loose.
And what I mean by that is there
were enormous efforts in Hawaii
to squelch this development.
It took three years for the
case actually to get to trial.
In the meantime, the
United States Congress
passed, very swiftly, the
Defense of Marriage Act.
MARTHA MINOW: Signed
by President Clinton.
MARY BONAUTO: Signed
by President Clinton.
Exactly.
He even campaigned on it for
a while until he was caught.
And it had two parts,
one of which, in my view,
invited states to enact public
policies against, quote,
"same-sex marriage"
so that they would
not have to respect
marriages that
were certified in some states.
If you went to Hawaii and
got married and came home
and your state passed one
of these public policies,
then your state would be free
to disregard your marriage
as, essentially, a nullity.
And the other piece is the
piece that was struck down
in Windsor,-- Section 3 of
the Defense of Marriage Act--
which said that for all
purposes, under federal law,
a marriage is only a unit
of a man and a woman.
And therefore, the
federal government
would disrespect marriages
of same-sex couples
once they came to fruition.
Of course, the Congress
thought by-- having followed
this all really closely,
the Congress really
thought that by
passing this law,
no state would ever allow
marriage for same-sex couples.
Thankfully, they were wrong.
But anyway, all
hell broke loose.
But I will say this--
that Hawaii was incredibly
productive, even though
ultimately, the Hawaii
constitution was amended so
that only the legislature would
quote, unquote, "change the
definition of marriage."
But nonetheless, there
was just so much awakening
to people's aspirations--
that they wanted this.
They wanted to have this choice.
Many people wanted to marry.
And even some people
who didn't want to marry
felt like we deserved to have
this same freedom of choice
to decide whether
to marry or not.
And we brought
litigation in Vermont.
GLAD, where I work, works
in six New England states.
We were looking at
state constitutions.
We were looking very
carefully at courts.
We were looking very carefully
at state legislatures.
And for a variety
of reasons, really
principally having to
do with the legislature
and the amendment process--
if you were to win,
what would happen politically?
Would there be an amendment
as there had been in Hawaii?
We decided to go
to Vermont first.
And in 1999, the
Vermont Supreme Court
did something that seemed
amazing at the time--
and it was-- which was to say
that same-sex couples should
have all the same rights and
protections under state law
that are conferred by
marriage as anyone else
and called this a recognition
of our common humanity.
And then sort of-- can I just
say-- everything broke loose
in Vermont, as well.
But essentially,
the legislature,
which was tasked with
implementing the ruling,
came forward with this
idea of civil unions.
We worked very
closely with them.
My co-counsel in Vermont
worked very closely with them--
Beth Robinson and Susan Murray.
And they were incredibly
gutsy, I have to tell you.
I mean, there were
people who came out
as gay in this process.
There were people who came
out about gay family members.
There was this real sense
of vulnerability up there.
I mean, it was
extremely intense.
There were people who
were big Operation Rescue,
anti-abortion people who
would stalk folks in the hall.
It was very, very tense.
But ultimately, they passed
the civil union law and people
started joining in civil
union in July of 2000.
Big legislative
backlash, absolutely.
Democrats lost control of
the House, not the Senate.
And I think that really
terrified Democrats
around the nation for a while.
So we didn't really have a
lot of political supporters.
But actually, after all was said
and done, and things really did
settle down to some
degree in Vermont
and we started moving forward
on a positive trajectory
again there.
I'd lived in
Massachusetts at the time.
I now life in Maine.
But I really couldn't
go to the grocery store
without somebody approaching
me about this issue.
If they could do
this in Vermont,
why can't we do this
in Massachusetts?
[LAUGHTER]
MARY BONAUTO: And I
have to say, I agreed.
And Chief Justice
Marshall is here.
And she's written
very eloquently
about the Adams Constitution
here in Massachusetts.
And what can I say?
I'm a fan as well.
And I really did believe
that Massachusetts
would be the place to break
that historic barrier.
And so we very-- again,
suffice it to say,
we had no shortage of
people who wanted to serve
as plaintiffs in a case.
And sometimes that's a red flag.
You're too eager to
participate as a plaintiff.
It's a lot of work
to be a plaintiff.
You're there as an ambassador
for a larger community,
not just to sort of talk about
your own personal predilections
about things.
But in any event, we spent a
very long time constructing
a case and filed the case under
the Massachusetts Constitution
in April, 2001.
And on November 18, 2003,
the Supreme Judicial Court,
in an opinion by
Justice Marshall,
broke that historic barrier
and has really become a marker
by which all future efforts
to look at equality for LGBT
people has been judged.
And I have to say, that
decision and people
marrying in Massachusetts is
what really changed everything.
The principle was right.
And then people seeing
the reality of what
it looks like when
same-sex couples marry--
a lot of happiness-- it's
hard to argue with it.
So anyway, that's part
of how we got there.
MARTHA MINOW: So Massachusetts
was the right place
to bring the suit
in part because
of the tradition or
constitutional tradition,
partly because of
the public attitudes,
but also partly because of
the structure of the state
constitution.
So why was that?
MARY BONAUTO: That's
exactly right.
I mean, Massachusetts is
one of very few states
that has a incredibly rigorous
process for amending the state
constitution.
So there are two ways to
amend the constitution
in Massachusetts.
One is for a legislator
to bring forward
a amendment, in which
case the amendment has
to be approved by a majority
of two successive legislatures.
So there needs to be
an intervening election
and a lot can
happen in the course
of an intervening election.
So that's one part of it.
And then there's also a process
for a citizen to initiate
a change to the constitution.
And the scary thing about
that is that it takes only 25%
of the legislature, in two
separate legislative sessions,
to approve of it.
And we happened to know--
I happened to know-- we
pay attention to our opponents.
It's always a good thing to do.
So paying attention
to our opponents,
we were aware of the
fact that they were still
really upset about
Vermont and they
were going to move forward
with a constitutional amendment
here.
And I felt like,
there's no way we're
going to have a vote on a
constitutional amendment
here without trying
to win first.
And again, we were
already moving forward
with taking that
litigation anyway.
So eventually what happened
is the decision comes down.
There's already an existing
legislative amendment
being considered in the
Massachusetts legislature.
So we went in November.
There's an attempt
in Massachusetts--
I hope this doesn't make
Justice Marshall uncomfortable.
But my perspective
is what happens
is that members of
the legislature who
were really upset
about the decision
and felt like they
should control this issue
put forward an
advisory question.
They put together a
civil union bill and say,
won't this pass
constitutional muster?
And of course, it's civil unions
with a marriage ban in it.
And the Supreme
Judicial Court issues
advisory opinion saying, no.
This doesn't satisfy the
constitutional mandate
of Goodridge, which
is about equality.
This just reinforces the
constitutional infirmity
that we were addressing
in the first place.
Well, I will say, that
decision comes down,
and the next day is the first
day of the Constitutional
Convention.
And the tempers were high.
Ooh, they were high.
Who are they to tell us?
We're the legislature,
et cetera.
So it was a very hot time.
But I will tell you,
it's been incredible.
It's been incredible to
see the power of a court
being so clear about principle.
Because what happened
and continued to build
is after that decision, and then
after the follow-on decision
and the opinions of
the justices saying,
no, civil unions are not
enough-- it's unequal--
was that more and more people
began to rally to our side.
And I will tell you, I
will never forget this.
But there was a
legislator who was
a senator-- a Democratic
senator named Marian Walsh-- who
was basically on the
other side of everything
I'd ever done to that point.
And she stood up in the
convention and said,
this decision is so
beyond my comfort level.
But I have read it.
I have read the
Massachusetts Constitution.
And this decision is correct.
And my comfort zone is not the
measure of my constituents'
constitutional rights.
And time and again,
people rose to principle.
And then, of course, once
people started marrying in May,
people were also able to just
rally around the reality.
At the time, there was a lot
of Armageddon-ish discussion--
like, what was going
to happen on that day
when marriages started?
But then of course,
what happened?
It was a really nice day.
[LAUGHTER]
MARY BONAUTO: So I think that
reality and the fear going away
also helped.
And again, the joy really
spread through the land.
And it was just
unfortunate for a while
that this was a self-contained
experiment in Massachusetts
because Governor Romney
had erected some barriers
around the state so
people from out of state
mostly couldn't marry.
But eventually,
that all changed.
And the secret that was once
the secret of Massachusetts
has now become known
through the land.
MARTHA MINOW: The
midnight weddings
started the joy, the sharing.
But also, I, again,
want to say that
this constitutional
structure-- the speed bumps--
helped so that there were a
lot of people who got married.
And I think it would be hard
to live in Massachusetts
and not know somebody
who had gotten
married under
Goodridge by the time
that it was plausible to
imagine legislative change.
MARY BONAUTO: That's
exactly right.
And just tell me if
this is too wonky, OK?
MARTHA MINOW: No.
Please.
MARY BONAUTO: So what
eventually happened-- I mean,
when the Constitutional
Convention sessions commenced
in February of
2004, our opponents
were very confident we'd
be dead in an hour-- they
would've passed something.
It would've been the first
time there'd been a passage.
We'd have the intervening
election in '04.
And then in '05,
that would be it.
We were alive at midnight.
We were alive for several
days before they finally
agreed to put civil
unions in the constitution
with a marriage ban.
That was the amendment that
passed in the first round.
Well, by the time we got
2005 and the legislature
took this issue up again after
the intervening 2004 elections,
the Republican sponsor of that
amendment stood up to say,
I withdraw my support
from my own amendment
because we've all seen
now what this looks like
and there's no
reason to be afraid.
MARTHA MINOW: Yes.
Amazing.
Absolutely amazing.
MARY BONAUTO: Yes.
MARTHA MINOW: I'm going
to open it up in a minute,
so think about your questions
that you want to ask.
Some people say this has
been the fastest successful
social change effort using the
courts in American history.
A, is that true?
B, how would you assess
what made this happen?
MARY BONAUTO: In terms
of whether it's true--
every group that
has been stigmatized
or whatever has its
own unique history.
So I will just say in
terms of when you count--
where do you begin counting?
Even in my own life,
I know plenty people
who did not live long enough
to see what we have today.
There's a whole
pre-Stonewall history
of people who had
lives that were
squelched by official
government discrimination.
And on marriage itself, there
were people who were really
inspired by the US Supreme
Court decision in Loving
versus Virginia in 1967 and its
justifiable statements about,
this is a fundamental
liberty for all Americans--
and it felt like, we are
among the all Americans here--
and then had their cases treated
very dismissively by state
courts and the Supreme Court
dismissing a case from a couple
Minnesota for want of any
substantial federal question,
in 1972.
So anyway, I think you
have to count back a ways.
And I think what happened
on the marriage issue--
and on a lot of issues-- is
that there was a sense that this
is just not possible
and we shouldn't even
bother to want it.
But when it comes to
marriage, there were always
some people who wanted it.
And it took
something like Hawaii
to make people feel again
like, it's OK to want it again.
And even though
people thought we
were nuts for the kind
of work we were doing,
I will say that Vermont-- even
though it didn't achieve what
we had hoped it would achieve--
gave people the confidence
that we could win something.
And we also, in
Vermont, by the way,
withstood constitutional
amendment attempts.
And there, it takes
3/4 of the Senate
to approve of an amendment
before it can go forward.
So it's a little more--
even more rigorous
than Massachusetts.
And again, it has to go twice.
So anyway-- so it depends
on when you count.
MARTHA MINOW: I think it's
just such an important point.
And certainly, the
family law case books
include cases from the '70s.
People went to court trying
to get a marriage license,
being denied by the
clerk, being told
you don't fit the definition
of marriage in this dictionary.
So people have been trying
for a long, long time.
And marriage, of
course, is just,
as you say, one piece of a
much larger social movement.
That's been, oftentimes,
fighting just for safety.
MARY BONAUTO: Exactly.
And if you look around today--
I will just say, very quickly,
that there are 29
states that don't
have any sort of a
nondiscrimination
law for sexual orientation
and gender identity.
Now again, you can try to use
sex to achieve gender identity
protections and so on.
I get that.
That's great.
But there's no explicit law.
And there's no law
at the federal level.
And you know what?
There isn't going to
be one for some time.
MARTHA MINOW: So employment
discrimination, where you
started, is still a problem.
MARY BONAUTO: Exactly.
And now, of course, we're in
this incredibly ironic position
where people are marrying
in states where they have
no protection from
discrimination, some of whom
are losing their jobs.
MARTHA MINOW: Right.
MARY BONAUTO: Yeah.
MARTHA MINOW: So I'm
going to open it up.
But as you come up and ask a
question, I'm going to ask you,
the Supreme Court
had the opportunity,
of course, to take
up this question
again recently and didn't.
And how should we read that?
MARY BONAUTO: I think we should
read it as, we're going to win.
[LAUGHTER]
MARY BONAUTO: At least
that's what I hope.
Yeah.
I don't know how you put the
toothpaste back in the tube.
And marriage is
not just-- marriage
is a far-reaching legal
status that transforms you
as an individual, in
relation to others,
in relation to the state.
And I don't know how
you could just suddenly
decide to unmarry people.
And I think if
they really thought
there was something wrong
here, they would've stopped it.
I mean, I have a lot
of theories about what
might have been going on.
As you know, so
far post Windsor,
we have been winning
marriage cases
with very few
exceptions-- the district
of Puerto Rico, the
district of Louisiana,
and one state court case.
But we're talking dozens of
wins at this point-- winning
in the Tenth Circuit and the
Fourth Circuit and the Seventh
Circuit.
MARTHA MINOW: Amazing places.
MARY BONAUTO: It's
pretty incredible stuff.
So I think it's that we win and
they're waiting for a conflict
to arise.
MARTHA MINOW: Great.
So say who you are.
MAN: My name is [? Yasin ?]
[? al ?] [? Diq. ?]
I'm a second-year
student here at HLS.
And I wanted to
ask you a question.
It was really interesting to
hear that you kind of began
this movement or
at least started
to initiate or instigate
progress at a time
when individuals were
being fired for being
members of the LGBT community.
And now, while at
Harvard Law School,
we see so many of our employers
celebrating this specific niche
at the law school and catering
to the individual needs
of LGBTQ students
in the workplace.
So it was just kind of
interesting to think
that now, I live in this
world because of the work
that you've done.
And so I wanted to just ask you
a quick question about finding
pride for yourself to
advocate for this movement
at a time when it really
felt dangerous to speak up
about who you were and
the group of people
that you wanted to fight for.
Because there is
a battle within as
we move forward to create
movements for social change.
And so how do we navigate
our own identities
as we try to speak
on behalf of others?
MARY BONAUTO: It's
a great question.
I've been in the fortunate
position of, the discrimination
that LGBT people face
is the discrimination
that I have faced.
And so there's a
definite alignment there.
And I think a lot of
people would not have taken
on the jobs that I took on.
And I was told, at the time
that I took the job at GLAD,
that I was throwing
away my career.
It was going to mark me forever.
And I felt that
it was important.
And I will also say this.
Why did I have the
nerve to do this?
I don't know.
But I did have the
nerve to do this.
Is it because my
parents loved me?
I mean, I really don't know.
But I did really feel very,
very deeply that this was wrong
and the person that people
had loved before was
the same person I was now.
And I needed to make
people see that.
And I will tell
you-- I mean, I don't
want to go on about
this-- but I had
plenty of problems related
to my own sexual orientation,
including people
trying to burn down
the house I lived in when I
was in Boston in law school.
And at the time, it
was inconceivable to me
that I would ever go to
the authorities about that.
It was something we were able
to take care of internally,
becasue at the back door,
I had a fire extinguisher.
But it was just inconceivable
to ask for help.
So I will just say
that I have just--
I understood how
important this was,
and what really seemed to
me just off kilter it was,
and that there were ways
to find common ground.
MARTHA MINOW: Can you say a word
about the campaign in Maine,
because-- say a word about that.
[LAUGHTER]
MARY BONAUTO: OK.
Well, perspective one on
Maine is, as you know,
we won in court here
in Massachusetts
on the marriage issue.
And winning in
court just rekindled
what's been a 200-year
discussion about who
should be in charge-- the
courts or the people--
forgetting that the
people, of course,
authorized the courts to
play the role that they play.
And so anyway, in
the whole narrative
and the arc of
the marriage work,
it was important also
to win in legislatures.
We started winning
in legislatures
here in New England--
in New Hampshire
and Maine and Vermont in 2009.
It was very important
to get there.
And then in Maine, we were
forced to go to the ballot
and we lost narrowly, just as
they had lost in California--
same kind of campaign.
And in Maine, the only
way to move forward again
would be to put ourselves on
the ballot-- to initiate a law
to say, please let us marry.
And I'm going to say something.
I am not a huge fan of the
citizen initiative process.
I am not a big fan
of direct democracy.
Perhaps that is
elitist on my part.
Sorry.
But I know it started as
this whole progressive thing
and I feel like it's
been completely contorted
by money and other interests.
Anyway, so the whole idea of
putting myself on the ballot
was really loathsome.
But we also realized it was the
only way forward, so we did.
And how do you win?
If you put yourself
on the ballot,
you have got to talk
to a lot of people.
Now, we had been
talking to people,
but we really had to ramp it up.
And so thankfully, there
were many, many people--
gay and non-gay--
throughout the state who
were willing to really,
truly engage their neighbors
and go out in their communities
in all kinds of weather
for years and have genuine
conversations about,
what does marriage
mean to you and to me,
and to find common ground.
So this was not coming out
stories in the sense of,
let me tell you I'm gay and this
is why you should support me.
It was really trying to find
common ground about marriage.
And our ads were to that
effect, that we ran,
where we had-- our first
ad was a Mainer who
was in Machias, Maine,
which is extremely remote.
You're really tough
if you live there.
He was a World War II pilot.
And he was sitting
around a table with four
generations of his family.
And he was talking
about what he fought for
and why he wanted his
granddaughter Katie
be able to get married, too.
And the ads were of that nature.
And we didn't script them.
They were Mainers who you
would not necessarily expect
to be with us who were with us.
And it gave people
permission to sort of rethink
their previous opposition.
And just as President Obama-- I
think, extremely importantly--
came out in support
of marriage and talked
about his own journey
of understanding.
He'd been opposed, but his
daughters have friends.
And he's thought about the
golden rule, and how would
I want to be treated, and
this is the government.
That kind of thing
has given people
permission to rethink
their previous opposition.
And this isn't a completely
accurate, up-to-date statistic,
but as of about a year
ago, 14% of Americans
had changed their minds on this
issue, which is phenomenal,
in a very short amount of time.
So anyway, in Maine, we went
through this whole experience
of truly, very deliberately
trying to find common ground
and listening, not just talking.
And I have to say, I think it's
just such an important lesson
for all legal and social justice
movements, is how to make sure
we're always integrating
all of those elements,
including that one.
MARTHA MINOW: Great.
WOMAN: Hello.
I'm a 2L.
My name is [INAUDIBLE].
And my question stems, actually,
from a recent interaction
I had with a same-sex couple
that were living in Israel
and moved to the States
after DOMA was struck down.
One was a US citizen
and one wasn't.
So I was wondering, all
the issues-- everything
that we're dealing with
here, domestically--
how do you see it being
perceived globally?
And what effect is it having
internationally, not only on US
citizens living internationally,
but everywhere in general?
MARY BONAUTO: So as a general
matter, what is happening here,
how is it being received
internationally?
Well, what do you
think about how it's
being received internationally?
WOMAN: I actually have
never considered the issue
until I met the couple.
I've never considered that it's
had an impact outside of this,
because you read The New
York Times, The Wall Street
Journal, you only see what's
happening in the States, so--
MARY BONAUTO: Right.
MARTHA MINOW: There's
also the reverse,
which is, how have the
developments in other countries
affected what's gone on here?
MARY BONAUTO: True.
You want to talk about that?
MARTHA MINOW: Well, I'll
just say two things.
You know so much more
about it than I do.
But interestingly,
the United States
started to have state decisions
and practices approving
adoption and foster care by
same-sex couples at a time
that it was not allowed,
particularly in Scandinavia,
where Scandinavia was moving
ahead on marriage or civil
union or something like that.
And so the comparison
between the two, I think,
was very, very striking.
MARY BONAUTO: Exactly.
I can't globalize about
the reactions elsewhere,
but I will say
certainly, there's
been an effect of
inspiring some people.
And so I have been,
over the years,
connected with
people from Canada,
from Ireland, from various other
countries who look to our work
as some sort of model and to
what degree can it map on.
But I will also say
that clearly, there's
some opposition out there.
And this is actually
findable and you can
see it on the web for yourself.
But some of the opponents
that we have faced here,
of the right wing
organizations like the National
Organization for
Marriage, have really
taken their campaign
international
and are a big source of
the various countries
rallying against us
now, including-- they
were in Russia recently
at this family conference
where they were, again,
trying to inaugurate
a whole new series
of anti-gay laws.
So the movement's
been internationalized
in both respects.
Our opponents are out and about.
And I haven't, at this
point, had a lot of time
to go work on other
countries' laws or anything.
But clearly, we try to
share to the extent we can.
MARTHA MINOW: Sure.
Say who you are.
DIANE: My name is
Diane [? Drial. ?]
I had a question about the
relationship between impact
litigation and low-income
LGBTQ populations.
So I was thinking that
many of the impact
projects that organizations like
GLAD and [INAUDIBLE] pick up
are ones that have
benefited people
who already have the means
to take care of theirselves.
And it just the LGBTQ
piece that was making
lives difficult for them.
So when you pass
marriage, you're
benefiting people who are
already in the position
to get married.
When you pass even
anti-discrimination laws,
you're benefiting people
who are not perpetually
unemployed or unemployable.
And I was wondering
if you think there's
something inherent about impact
litigation that, at least
heretofore, has only--
not only, but has had
a disproportional benefit
for wealthy people
and if there's something that
we can change about the impact
projects we take
on now to benefit
low-income LGBTQ populations.
MARY BONAUTO: Yeah.
Thank you for the question.
And it's something, actually,
we are thinking about a lot.
So I guess one area where we may
not share the same perspective
is when I look at
marriage, you're right.
It's for people who
are eligible to marry.
So they are in a couple
and they're not already
married and whatever.
So yes, that's true.
But I know that that affects
people from all walks of life,
without a doubt.
And the protections it provides
are extremely valuable.
So I think there's
ways in which impact
litigation does affect
enormous swaths of people.
And you look at employment
discrimination, too.
And I think about the
people who I've represented.
It's not only executives.
I mean, it's people
who are minimum wage
workers, part-time cashiers
at a store, and so on.
And it matters as much
for them as anyone else.
But having said all of that and
pushed back about the framing
the question a little
bit, I will say to you
that one of my big
concerns going forward--
and I was saying
this to the dean just
beforehand-- is people are
very excited about the marriage
work, OK?
And I'm partly responsible for
people being excited about it.
So I'm excited, OK?
But I realize it's
so not everything.
And I am so concerned
about people saying,
I got my marriage.
We're done with DOMA.
We can get off the field.
And I feel very much-- and
this gets into, in part,
into the comparative movement
piece-- is, how do we now
do even a much deeper dive to
think about the kinds of issues
that you are raising to
make sure that we don't
re-instantiate, somehow,
barriers, discrimination norms,
or whatever, and we really
dig much more deeply
to deal with the
economic justice
issues, the trans youth,
the homeless LGBT kids,
as a general matter-- on and on.
So if anything, I feel like
part of what we're going to do--
and already are
doing, actually--
is doubling back for
different rounds and more
strategic employment litigation
in particular industries
and with particular
workers-- anyway, and so on.
So anyway, I hear you.
And I think impact
litigation is not everything.
But I also really
believe, as I look
at other movements and
the amount of pushback
that other moments
inevitably got--
they achieved signal
victories, but their opponents
have not gone away.
And we're in this
for the long haul
and have been able to erode
so much that I don't want
that to happen here either.
And I think it has to do with
even deeper cultural engagement
with all aspects of the
LGBTQ and -I communities.
SHANE: Hi.
My name is Shane.
I'm a 3L.
My question is, I guess,
somewhat related to what
you've been talking
about this whole time,
and it's backlash theory.
And I'm really
curious about bringing
in the comparative element.
If you read Michael
Klarman's book on this,
he still uses the backlash
frame to stay, see?
Courts decided things.
People hate when
courts decide things.
Bad for social movements.
But since that book
has been written,
the LGBT movement
now seems to be
the prime counterexample of
what, in backlash theory,
doesn't actually happen.
And I'm curious, was the
LGBT movement different,
from your perspective, from
other social movements,
whether it be abortion
rights or whether it
be-- death penalty
are the two that I've
heard most talked about.
And if it was different
in a backlash sense, why?
MARY BONAUTO: Yeah.
I think those are
great questions
and I can't answer them.
Sorry.
[LAUGHTER]
I mean, it's the kind
of thing I actually
really want to spend
more time thinking about,
to tell you the truth.
Because my suspicion is--
with all respect to Professor
Klarman and
recognizing that there
are backlashes that happen--
is part of the issue is,
how do you also respond
to those backlashes
and do you have the
resources to respond
to the backlash and
enough creative tools
to respond to the backlash?
So I don't think-- so I suspect
it has to do, in large part,
with people pulling away from
movements after victories
are achieved.
And one of the
things-- when I look
at some of the other
moments out there
and I see how people get on the
defense about particular issues
and the movement becomes defined
by just a couple of issues,
I'm really determined
that the LGBT movement
not become defined by
just a couple of issues,
but continue to
reach out to people
in many different spectrums
and whatever and continue
the cultural engagement.
So anyway, I guess
my thought is,
I don't feel like it's
so much backlash as,
do we maintain the empathy
and the commitment of people
who brought us to where
we got as the battles get
different and harder
and the right wing plays
the long waiting game?
Does that make any sense?
OK.
MARTHA MINOW: Great.
SUZANNE: Hi.
My name is Suzanne.
I'm an LLM from Uganda.
And I'm just curious
whether there
are any universal
principles that you would
say have helped the movement
here to go to the point
where it is and if those
can be applied elsewhere
and also if there is any
sense of responsibility
to maybe a global perspective.
Because I know
that in my country,
discussions of LGBTI Issues
are based on, oh my God.
Look at this.
They are now getting married.
Don't allow these people a right
to privacy because very soon,
it's going to look like
that-- [INAUDIBLE].
I know that that
shouldn't be a limitation
to the kind of
advocacy that needs
to be done here at
all and protections
for LGBTI people in the US.
But is there a kind of
global responsibility
to say hey, we're doing this
and it's really good here,
but the perspectives we
take need to also consider
what's happening around us?
MARY BONAUTO: Yeah.
MARTHA MINOW: Boy.
MARY BONAUTO: That's a
really challenging question.
Even setting aside
Uganda-- I mean,
one of the questions
that I would receive
about Massachusetts
was, don't you
understand that
what you're doing
in Vermont and
Massachusetts is unleashing
this ferocious firestorm in
other states that are now not
only passing statutes
but locking down
their constitutions to make
sure there's no protection
for same-sex families at all?
And haven't you harmed us?
It's part of the
whole backlash thesis.
And it's one thing to
think about that in the US.
Internationally, much
more challenging.
And I guess I'd
have to also ask,
are we better off
not doing this?
I don't think so.
Are we better off
having some broader
discussion about
human rights that's
not led by people like me?
I mean in terms
of your country, I
don't know a lot
about your country,
but we have just represented
somebody from your country
and achieved asylum for him.
And he-- John
Wambere-- appears to be
part of a very vibrant
group of people locally.
MARTHA MINOW: Courageous.
MARY BONAUTO: Yes.
Very courageous-- who
have been bringing
these issues to the fore.
And I have to say, when I think
about-- it's not comparable
exactly, but I will say that
there were plenty of times
here when people were at great
risk for speaking out at all.
The reason my organization
was founded in 1978
was because gay men
who would congregate
at the Boston Public
Library were being
arrested for congregating.
That's in Boston in 1978.
So I get that there
are risks involved,
but I feel-- I guess I'm
hoping that we're all
on different trajectories
but that eventually,
the utter humanity and
goodness of what we're
talking about here--
people being who they are,
being authentic
about who they are,
and wanting to contribute
their full selves
to their community--
is ultimately
going to carry the day.
But I totally get
it's a long timeline.
ALEX CHEN: My name's
Alex Chen and I'm a 3L.
Thank you so much
for being here today.
MARY BONAUTO: Sure.
ALEX CHEN: I guess
my question is
related a little bit to
some of the questions that
have come up before.
I'm curious-- we
look at marriage now
and I think there
are a lot of people
who say it was inevitable
that it would happen,
that it's a fait accompli.
Once something
has happened, it's
very hard to walk back and
say, it wasn't inevitable
that this was going to happen.
It wasn't just a matter
of natural justice.
And there are people
who say that part
of the reason that marriage
was easy to accomplish are--
[LAUGHTER]
ALEX CHEN: Right.
Right.
MARTHA MINOW: It didn't
feel easy along the way.
MARY BONAUTO: Sorry.
It was really easy, right?
ALEX CHEN: They say it's because
the US is better at recognizing
social rights than economic
rights or social issues
rather than economic issues.
And I'm curious to hear
what you think about that.
Do you think there is something
distinctive about marriage--
about it being a social
institution-- that
made these arguments
more legible or literate
to people in the US and whether
that means that it'll be harder
to make other types of
arguments going forward,
to do with LGBT rights-- things
like economic discrimination,
employment discrimination?
Or/and do you think
that there are lessons
that we can take from
that marriage battle that
are ways that we can make
that message that you've
learned from for all of your
decades doing this work?
MARY BONAUTO: OK.
That was a lot of questions, and
a lot of really good questions
in there.
It's interesting about the
economic rights, social rights
comparison.
I'm just going to say,
just to be really,
clear, getting to
marriage was not easy, OK?
And I can say why.
And it wasn't inevitable.
And I have to say-- I
just want to say one thing
about the inevitability piece.
So it is true that in
2005 in Massachusetts,
the Senate Republican
sponsor of this amendment
withdrew his support, but a
citizen-initiated amendment
followed.
And the citizen-initiated
amendment
passed the first round.
And so everything was hinging
on this second Constitutional
Convention in June of 2007.
And again, they
needed 25% support.
And I can't tell
you how much was
unleashed to try to keep
that amendment from passing.
And it was defeated,
which was incredible.
And it's only then, really,
that we hit this turning
point, I think,
of saying OK, it's
really secure in one state.
And you can't make
that one state go away.
And then in '08, we
saw two more states.
And then '09, we had the
legislative victories.
And it's just been
building out since then.
But I want to tell you that had
we lost this in Massachusetts,
I don't know that I'd
be sitting here talking
to you about marriage today.
I really don't.
Anyway, on the economic
rights piece, I will just say,
marriage is an
institution and a shared
experience in this nation.
And I think that makes
an enormous difference
once people could get over
that it was gay people who
were talking about marriage
and that gay people might
want to marry because
that was like,
why would you want to marry?
Why would anyone want to
marry, and so on-- that yes, it
eventually tied into this whole
huge reservoir of experiences
and warm feelings associated
with the institution.
And I will say this.
In contrast to 10
years ago, there
are many Americas who
believe discrimination
against gay people is wrong.
Now, that belief
is about this deep.
But nonetheless, it's
a helpful building
block for moving forward.
And so in that respect,
we have some advantage,
I think, in moving
forward on other issues
like nondiscrimination.
But when you start talking
about economic rights
and so on, like making sure that
every single person has means
to feed themselves and
housing and shelter--
you know where we are as
a nation on those issues--
nowhere, nowhere in terms
of constitutional law.
And so I just view
marriage and access
to an existing
institution as something
entirely different from that
other whole substantive set
of issues that I think perhaps
tie into more economic rights.
MARTHA MINOW: But let's recall
that Loving wasn't until 1967.
And the Supreme Court
ducked, several times,
the opportunity to
address barriers
to interracial marriage.
And it looks maybe to you
like that was inevitable.
It was not inevitable.
And we were very lucky
to be able to screen
a movie about the
Loving case last year.
And Mrs. Loving actually
agreed to the making
of the movie in part
because she was really
wanted to be helpful to the
same-sex marriage movement.
And so the relationship
between the movements
is, itself, a really
interesting story.
MIHRAB: Hi.
I'm Mihrab.
I'm an LLM from Israel.
And I was interested
in there two things.
First, you mentioned that after
the success of the same sex
marriage movement,
there was a question of,
how do we proceed from here?
So you mentioned the
homeless children and work
discrimination.
But I was wondering, what
are the current most burning
challenges for the LGBT rights
movement as you perceive them?
And do you think that
it's strategically
wise for the LGBT
movement to unite forces
with the feminist movement?
Do you think it makes sense
to see sexual orientation
discrimination as a form
of sex discrimination,
as you mentioned earlier?
MARY BONAUTO: OK.
We're taking the
latter point first.
There are attempts now to
rewrite the whole federal--
what was called ENDA--
Employment Non-Discrimination
Act-- but to basically make
it a much broader law that
would address public
accommodations
and housing, which I support,
and at the same time,
to continue, where sex is
enumerated as a protected
characteristic, to also include
such orientation and gender
identity.
At the same time,
that in litigation we
are pursuing the tactic,
quite rightly, of saying,
well, sexual orientation
and gender identity
are a species of
sex discrimination.
There's nothing that forecloses
us from making both arguments.
Enumeration, as the
Supreme Court has put it,
is an essential
device for conveying
what a law encompasses.
It's not intuitive
to everyone that sex
includes sexual orientation
and gender identity.
So we are proceeding
on both tracks.
And frankly, that unity has
been in place for a long time.
So it's not a question,
really, of joining forces.
Women's groups are actually at
the table, too, in terms of,
do you amend Title IX?
And do you open that
up, since there's so
many people who want to
create possibilities for more
money for football teams?
Maybe you don't open
up Title IX but you
address other-- you
figure out other ways
to provide protections based on
sexual orientation and gender
identity.
So anyway, that's
already happening.
And then the first part
of your question was,
what do I see as some
of the big priorities?
One of the priorities I
see is around young people.
And I mentioned that
here in Boston, 40%
of the homeless youth are LGBT.
And most of them are
homeless because they
have been forced out of their
own families and harassment
at school.
So what is it?
I'm a parent.
So what is it that
convinces a parent
that the best thing is to have
a child leave their own home?
That tells me we have a lot
of work to do on attitudes.
When I think about attitudes,
I think about things like, OK,
what are the
cultural institutions
that shape attitudes?
And there are many of them.
There's the military.
There's the workforce.
There's also school.
And I have long been
a proponent of trying
to think about more
inclusive curricula,
and to do it, of course, in
a community-based setting,
in a consensual way,
to think about what
really makes sense in terms of
teaching this next generation.
And even the battles
that would inevitably
flow from that
kind of discussion
are educational in
and of themselves.
And some would be lost,
but many would be won.
So that's just one example.
Of course, we're also dealing
with really vulnerable youth
who are in state care.
I just had a conversation
recently with somebody
who works with foster
parents who said, guess what?
Foster parents are not equipped,
even here in Massachusetts,
to deal with LGBT kids.
They say, we don't
know what to do.
So there are a lot of
kids who are being lost.
And I view that as something
that has to be addressed.
Because I guess my bottom line
is, your sexual orientation,
your gender identity,
your race, your gender--
they shouldn't matter.
They shouldn't matter in
terms of your freedoms
and your opportunities in life.
And when they do, we
have to do something
about that so that they don't.
Because the goal is to
make sure that people
are contributing what
they can contribute
from their authentic selves
and not spending all their time
fighting discrimination.
So anyway, I view that
as a huge priority.
I would like this
generation to end HIV.
I think that would be
great, and it's doable.
Because again, we're losing--
well, I shouldn't say losing,
but there are about 1,100 people
between the ages of 13 and 24
per month who are
seroconverting to HIV.
And many are youth of color.
I think that has to stop.
I view employment discrimination
as a huge problem.
And I say that for a number
of reasons, but one is this.
Consider the wage
gaps that exist
between LGBT people and others.
They are profound and stark.
And since gay people
are spread out
throughout the
workforce, what accounts
for all of this disparity?
Some of it clearly has
to be discrimination.
And I am perfectly well aware
of discrimination that exists.
And the other piece that I
would say is, to the extent
there is any perception
that gay people are
white and only white, well,
obviously, that has to change.
And we are very excited
about-- and we've always
had plaintiffs from
different walks of life--
but really excited about
featuring that many more
people from different races
and different cultures
and so on in the
litigation that we do.
So anyway, I see those as
some of the priorities.
MARTHA MINOW: I think we
really do need to end.
And I want to
actually give everyone
a chance to say thank you
so much to Mary Bonauto.
[APPLAUSE]
MARY BONAUTO: Thank you.
