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Out lawyer Mary Bonauto on winning marriage and what comes next for LGBT Americans

We all know the road to same-sex marriage in the U.S. was a long one and one that involved many people. But if you had to credit one woman whose decades’ worth of work most made this reality possible, it has got to be Mary Bonauto, who history may best remember for arguing the Obergefell v. Hodges decision.

Mary’s work, along with that of same-sex marriage architect Evan Wolfson, is at the center of the new documentary The Freedom to Marry. Ahead of the film’s world premiere at Frameline on June 25, we spoke with Mary about everything from her worries before the final decision to her thoughts on her legacy to what she thinks about the negative political games that followed our victory.

Sadly, given the timing of our interview and the shock we all felt, she also took a few minutes to share her thoughts about the tragedy in Orlando.

AfterEllen.com: By your own expectations, did we get same-sex marriage in the U.S. sooner than you would have thought possible even just a decade ago?

Mary Bonauto: Yes. Although by the time that we actually got it, it seemed right on time. And that’s because circumstances kept evolving, changing, because of the work so many millions of people were doing on the ground.

AE: There’s a moment in the film where someone says they hope future generations of LGBT people do take for granted the fact that they can get married because they should be able to take that for granted. Would you agree with that? And if so, where does honoring our pioneers fall into that?

MB: You know, I agree and disagree with the statement. I want people to feel like of course—I want them to feel in their bones that of course they are entitled to the same protections and freedoms that everyone else has. I do want them to feel that. At the same time, I am a strong believer that history matters and you need to know the contested terrain to understand anything about the world you live in. You need to understand how we arrived at where we are and, as you put it, honor the struggles of those who came before, partly so you can also understand the struggles that face you and the new ones that will come down the pike.

Mary with Evan Wolfson

AE: You’re also shown speaking with Evan Wolfson about the possibility of losing the case. You certainly didn’t seem to take victory for granted. But how prepared were you for a loss and what, at that point, would have been the outlook for same-sex marriage in the country for say, the next 10 years?

MB: Well it’s interesting you point that out because I really do, I really did believe we were right. And the decision came out the way that we had tried to present our argument and also in our written brief. You know, in a sense this had been decided before with respect to race in the Loving v. Virginia case. It talks forcefully about equality and the message of exclusion and stigma that is sent when you exclude gay people from the choice of marrying. But I am somebody who doesn’t believe it’s over until it’s over.

What would have been the outlook? It would have been very grim. It would have been very grim, and it’s the kind of thing that, let me put it this way, that myself and others took seriously enough to actually examine it. Because even though the Supreme Court had denied review in a number of other cases from circuit courts, like in Utah, Oklahoma cases, Idaho, Virginia and so on, what would have essentially happened is that those cases would have been unwound. The old paradigm would have sprung up, so you would have all these amendments back in force. And that would have been pretty disastrous. The classic house divided where some states have protections for LGBTQ families and some do not. And of course there was still a road forward—there’s always a road forward. I’m very much a plan B person. I think Evan is too. And the plan B would be then to have to win state-by-state. In that instance, it would have been convincing legislators to allow amendments to go forward to state constitutions, which would then have to be voted on by the electorate to undo those amendments. So we were definitely looking at a protracted process.

AE: It’s interesting that the film spent a lot of time in Texas. When you talk about this plan B, and you think of a state like Texas, trying to get that through the legislature and through the electorate, it really puts into context how hard it would have been.

MB: Right. Although I have to say this, which is I think sometimes people on the other side complain about the fact that we went to court. And all I can say is, “Exactly what choice did we have?” We worked in some state legislatures and in the state courts in states where those processes were open to us. You couldn’t go to the legislature in Texas because of the amendment and, of course, in over 30 other states. And so the only recourse was going to court, and I think it’s the extremism of our opponents that forced us to make that move.

AE: How important would you say partnerships at both a wide and individual level were in all this? For instance, there were partnerships between organizations like GLAD and Freedom to Marry, but there was also the kind of kinship that, for example, existed between you and Evan.

MB: The easiest thing to talk about for a moment is the relationship among the LGBT legal organizations, which is [GLAD] and Lambda Legal, ACLU and NCLR. Evan left Lambda, as you know, in 2003 and founded Freedom to Marry. After Prop 8, I think a number of people agreed we needed sort of a central messaging warehouse. Somebody like Evan, who’s just a verbal virtuoso and really inspiring, to get out there in some of these amendment states and really help people understand that we could make this fight. We could make this fight anywhere. And so at that point I think the collaboration really was reinvigorated between Evan and the LGBT legal groups because we were in those states litigating, trying to figure out paths forward. Over time, Freedom to Marry was able to contribute much more in terms of participating in the messaging, being able to help finance local operations of state equality groups, of state marriage groups—that was extremely important.

I met [Evan] in 1990. We hit it right off, and that never changed. And there were times when we talked a lot and times we didn’t talk very much, but we both always knew we were rowing as hard as possible in the same direction. We occasionally had our disagreements, don’t get me wrong, but he is a terrific colleague and friend.

AE: So as you know, you’re widely considered the “godmother of the marriage movement.” Yet in the film, you say you “resist [the] framing” that this is your “life’s work.” How come?

MB: Well it’s the idea that marriage is my life’s work. And it’s only because I believe so strongly that we have so much more justice yet to achieve for LGBTQ people. So this is important, no doubt about it. I mean, I’ve worked really hard on it. I really believe it’s important. But I also believe there are so many struggles that our community still faces and new challenges that we will face. We have so much more work to do. So I don’t want to be only the “marriage person.” I want to be the “justice for all” person.

AE: You mention in the film that the marriage case in 1991 in Hawaii changed you. Can you expand upon how it changed you and your motivations as a lawyer?

MB: It wasn’t really even on my radar until 1993 when the Supreme Court of Hawaii ruled that the lower courts had been wrong to toss the case out on what’s called a “motion to dismiss.” That’s when I became a lawyer on the case, May of 1993, and that’s when much of the LGBT community became aware of the case. It was like, “You’ve got to be kidding me? There’s a court that actually gets this?” Because from my perspective having started at GLAD in 1990, and I started at a time when the non-discrimination law that I was there to enforce was about to go on the ballot, and I was dealing with massive amounts of violence, it was very hard to secure protections for families, even vis-à-vis parent-child relationships. The idea of a court respecting a relationship between two adults who weren’t dead or severally disabled or incapacitated just seemed extremely—it seemed further off, like we had more groundwork to do. Nonetheless, even though I thought we still had more groundwork to do, I was also quick to seize the moment. Because once a court had said, “This is discrimination and it has to be justified by a state,” I felt like we had to seize that opportunity, we could not let it pass, and the battle was on, and we had to win.

AE: I suspect that you’ve probably been to a lot of same-sex weddings, but how did you experience April DeBoer and Jayne Rowse’s wedding? How was that one particularly special for you?

MB: You know, it was special. You’re absolutely right about that. I mean, one of the things that made it special was just how inclusive they were of their family and their kids. The kids were right up there with them. And of course it was the judge who decided the marriage trial, hopefully, the final trial on whether or not same-sex couples could be good parents, it was that judge performing the ceremony [Note: that would be U.S. District Judge Bernard Friedman of Michigan]. And then in the audience were plenty of people who’ve struggled hard and long in Michigan to try to achieve non-discrimination protections, family protections—you know, really have been battered around, really in the trenches. And, of course, all of the co-counsels were there, myself included, as well as the rest of the legal teams. So it really brought together just so many different elements of what I think our struggle has been, but around this celebration of their love and their family. And that’s what it felt like. It felt like they were getting married and the whole family was getting married. It was terrific.

AE: You’ve been involved in the struggle to legalize same-sex marriage for so long now that the obvious question becomes: what’s next for Mary Bonauto? So, what’s next?

MB: I’ve been at my current organization since 1990, and I have no intention of leaving. Part of what I have been doing is going on the road to talk to people about how we have to think about LGBTQ people throughout the entire lifecycle. From the youngest age through the work years, family years, obviously school, health challenges, aging—we have so much work to do in each of those elements. And then, of course, one of the really exciting things about all this is I feel like people are much more, now that we’re not just talking about legal exclusion, I feel like people are much more open to talking about intersectionality and about how diverse our community really is. So we were welcomed to participate and to help out in, for example, the Fisher case—that affirmative action in Texas—and to bring both a women’s angle and a gay angle onto that dispute. So we’ve been welcomed. We’ve always worked on these things, but welcomed in a new way, I think, and with a new voice.

AE: I now want to talk about something that caught a lot of the general public by surprise, but maybe it didn’t for you. What’s happened in some of the Southern states and especially with HB 2, was that something that didn’t catch you by surprise? A lot of the country’s top lawyers are saying that these decisions are absolutely unconstitutional, and the federal government has had their say as well, but was that a move that surprised you at all? Did you see it coming?

MB: I’ve been in an area of the country where we’ve been able to win for a variety of reasons, like not having to do anything at all with the quality of the arguments or anything else. And what I had experienced is every time you win, there’s more pushback. So in that sense, I was not surprised. I think if you look at other justice movements, that’s always been the way too. You get the Civil Rights Act of 1964 passed and the Voting Rights Act and 50 years later the Voting Rights Act is largely gutted, and workplace discrimination is still intensely pervasive.

So I am not surprised by the blowback, which is how I see it. I mean, there’s almost a way in which I see justice movements as sort of being on this spiral where hopefully you’re going to keep going over a lot of the same ground. There’s just ways in which prejudice is used to construct the identity of particular minority groups. And those issues, they’re the same at the core, even though they’re expressed in somewhat different ways. You just have to hope that, even though you’re going to keep spiraling around the same issues, you’re still moving forward at the same time.

And I think we are. I mean, the blowback has been intense, there’s no doubt about it—it’s awful. At the same time, we have made strides, and it shows. You have to remember that some bills were vetoed, in South Dakota, in Georgia, because they didn’t want the blowback from business and from what would happen to tourism and so on. It’s showing that the work we’ve been doing, and a lot of this was work in the marriage movement, of trying to find the common humanity—”We all share the common ground. We share values,”—is making a difference. We’ve definitely made some more friends. But we haven’t persuaded enough people out there of our common humanity and the fact that we are a nation that has the rule of law and not just your own individual religious conscience.

AE: And on that, people do look to you as a leader in our community. Do you have a few words about what happened in Orlando and the community’s response to that?

MB: I’m still grappling with it myself. I will say this, that just as I said a moment ago about the spiral here, we are never going to convince 100 percent of the American public to love us. We are not. And that is true of every other minority group. That means that dangers will remain, and misunderstanding will remain. I know violence is pervasive. I’ve certainly had to deal with that myself. I know violence is pervasive, but I’d like to think that this is a singular act. And either way, whether it is or it is not, what choice do we have but to be honest, truthful, resilient and ourselves? We cannot go back. As much as people need to take care of themselves, get support—I completely understand that.

Like everybody, I’ve been very affected by this. But the other thing I wanted to say is I was remembering last year at this time Dylann Roof had gone into that church in South Carolina, a prayer group, and then shot down nine people because of their race. And when Obergefell was decided, we were dealing with that. We were dealing with the fact that we couldn’t go out there and say, “Yes, this is a country where you secure equality no matter who you are.” Because who you are still matters. That’s been true for certainly black people, for all people of color. It’s true for gay people, too. It’s still going to matter, and we still have to stay committed and vigilant and keep our movement strong.

The Freedom to Marry plays at Frameline in San Francisco on June 25. Visit the movie’s Facebook page to keep up with future screening news.

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