Why not civil unions?

Reassessing gay marriage in light of what trans-pired next

“I felt that simply allowing gay people to continue to suffer was not acceptable.”

–Mary Bonauto (2014)

The first time I tried to break into a lesbian clique I was 19. To make conversation I raved about the recent court ruling out of Massachusetts, Goodridge v. Department of Public Health.

“Can you believe it? Like how it just came out of nowhere? Gay marriage, who was even thinking about that?!”

The other lesbians laughed awkwardly, glanced at each other. Faux pas.

The November 2003 decision had not come out of nowhere. Hawaii and Vermont stepped up to the brink of legalizing gay marriage in the 1990s, and for months leading up to Goodridge, culture war pundits had been circling Boston like sharks. The cosmopolitan conservatives of the National Review, for example, had blogged 171 times about “gay marriage” before Goodridge came down.

I felt as though I was up to date on gay stuff because I spent so much time furtively researching it, but I was mostly just squinting between the lines of Virginia Woolf novels and chasing down rumors about various hot actresses being lesbians (they weren’t).

Even though I’d never thought about marrying a woman before I saw that November 2003 headline, I became fixated on “gay marriage” after it. More specifically, I was anxious for my side to protect the Massachusetts ruling from getting defiled into a “civil union” compromise.

Why? And was “compromise” even the right word?

When I dove back into the old marriage debates recently, I found gay activists who were obsessed with how straight people saw them. They believed that sameness was the only road to respect. I get where they were coming from – I remember – but the slogans don’t move me anymore. In fact, the focus on symbolism, dudgeon and magic words reminds me of today’s trans movement.

The fight for equal tax benefits was logical and righteous; the fight for the word “marriage” was mawkish and cost over $150 million.

The leaders of this campaign were two gay lawyers: Evan Wolfson, a smooth operator based in NYC, and Mary Bonauto, an indignant New Englander. In this post I’ll show you how they steamrolled skeptics — including lesbians.

Ultimately I’ll argue that Wolfson and Bonauto’s work fed the trans movement.

It Came from Somewhere

In 1970 a gay couple sought a marriage license in Minnesota and appealed the denial to the US Supreme Court, which blew them off. The next year, gay protestors occupied the New York City Marriage License Bureau, serving cake to “amused” cops. By 1974, gay rights advocates were making the case for marriage in a debate on public television. 

But to truly understand the historical roots of gay marriage, you have to watch season 1 of Gentleman Jack. 

The UK’s first gay marriage advocate was a cis white gay who employed child laborers

“Samesex Marriage and Morality: The Human Rights Vision of the Constitution” (Harvard Law School, 1983)

In 1983, a law student named Evan Wolfson pulled together all the arguments in favor of gay marriage into an academic paper with over 700 footnotes. It contained history, court decisions, social science data, and defensiveness about gay promiscuity. He meant gay men, presumably.

In the paper, Wolfson rejects the idea of a “quasi-marital status” that would grant the same rights as marriage under a different name:

“Quasi-marital status … is a ‘separate but equal’ marital institution; therein lies its inadequacy. Such a solution … does not do justice to the rights of self-expression and self-definition in our system. … Such government imprimaturs and categorizations inevitably constitute badges of distinction[.]”

With the terms “separate but equal” and “badge of distinction,” Wolfson is invoking the struggle for racial equality. It’s a bad analogy. Black people in the Jim Crow South were physically separated from whites. A white student couldn’t see a black peer’s humanity because they were in different buildings. Marriage law did not physically separate gays and straights. It symbolically separated them. 

Wolfson on symbolism:

“The reason samesex marriage is particularly essential to gay individuals is perhaps precisely the reason it continues to be withheld: the importance it has as an expression of their equal worth as they are. Marriage is a statement about oneself to society, reflecting the central value of freedom, the aspiration to be master of the identity one creates in the world.”

Worrying so much about the image you project, and believing the state should help you project it, is very trans.

This is as dark and manipulative as anything Jamison Green would conjure in the 1990s:

“Gay individuals, like society as a whole, lose faith in their ability to develop personal relationships and in their capacity to love [if they cannot marry]. The resultant alienation often takes on a political cast as well, as gay citizens on some levels [sic] reject the society which rejects them. Deprived of a stable shelter perhaps even more essential to them than to those conforming to majority standards, gay people often stand exposed and alone.”

“Stereotypes” come up repeatedly (“this hostility in part arises out of … stereotypes”), as do arguments that gays should not be stereotyped (“Clearly, no limited stereotype can stand up”; “Homosexual adults are a remarkably diverse group”; “In fact, the diversity is such that some gay people fear that ‘Our differences … are threatening to tear us apart.’”).

After all this discussion of gay people’s needs, desires, culture and humanity, Wolfson drops a bomb in the very last footnote (using the term “sexualism,” which is his coinage meaning, basically, homophobia):

“Today certain people in our society are classed as gay. Tomorrow, with the struggle against sexualism, perhaps we will all be free in our ability to love regardless of arbitrary confines.”

It’s a confusing line, but he seems to be praying for the end of gay identity – even as he acknowledges elsewhere in the paper that homosexuality is probably rooted in biology. It’s almost like the adjective “married” is supposed to replace “gay.” 

Abolishing gay is one way to defeat stereotypes but I think it would be a Pyrrhic victory. 

Baehr v. Lewin (Hawaii, 1993)

In 1991, gay couples sued the Hawaii Department of Health for denying them marriage licenses. They were represented by a local civil rights attorney. The ACLU and the gay rights org Lambda Legal had turned down the gig, thinking the fight for gay marriage was premature. Wolfson was by now working at Lambda following several years as a Brooklyn prosecutor. With Lambda’s backing, he eventually joined the gay trial team in Hawaii.

For years the case bounced up and down between the trial court and appeals courts, as the latter dictated what issues the parties had to address. At one point the state’s highest court ruled that excluding same-sex couples from marriage was sex discrimination. Under Hawaii law, that meant the state would have to prove the law furthered “compelling state interests” or else it would be struck down. 

The parties litigated some more, and then in 1998 Hawaii overrode the whole process by banning same-sex marriage in its state constitution. Game over, case dismissed.

Baker v. State (Vermont, 1999)

In 1997, gay couples sued the state of Vermont. By now the national gay rights movement was on board. Mary Bonauto, of the Gay and Lesbian Advocates and Defenders (GLAD) in Boston, represented the couples along with two local attorneys. She’d been at GLAD since 1990, when she was still in her 20s.

Vermont’s highest court ruled in 1999 that same-sex couples were entitled under the state constitution to all the rights of marriage – except the right to be called married:

“We hold that the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law. Whether this ultimately takes the form of inclusion within the marriage laws themselves or a parallel ‘domestic partnership’ system or some equivalent statutory alternative, rests with the Legislature.”

The court didn’t find, as its Hawaiian counterpart did, that the marriage law discriminated by sex (after all, both sexes were denied the right to marry someone of the same sex) but rather that it treated same-sex couples differently without a good reason.

A 2004 New York Times story described Bonauto as “crushed” by the ruling, and cast what happened next as a defeat:

“When the Vermont Legislature took up the court's invitation, a result was 'civil unions,’ in which the legal benefits of matrimony were extended to gay couples but the all-powerful term -- ‘marriage’ -- was withheld. The distinction evoked a phrase that Thurgood Marshall knew all too well: 'separate but equal[.]’”

Funders Rush In

In 2001, a private foundation called the Evelyn & Walter Haas Jr. Fund wrote a check to Wolfson to launch a nonprofit called Freedom to Marry. The amount was undisclosed; it appears to have been part of the foundation’s first foray into “Gay and Lesbian Rights.”

Speaking to gay media about the new org, Wolfson made a pragmatic point: "We did not win civil unions in Vermont by asking for civil unions.” Demand marriage, settle for civil unions. It sounded like a reasonable strategy, just a conventional approach to bargaining. 

But Wolfson was up to something with that soundbyte: he framed civil unions as a midpoint between marriage and nothing, rather than as an alternative path to the same set of legal rights.

That elevation of marriage wasn’t inevitable. As recently as 1990, in Bonauto’s recollection, “[Wolfson] and I … were two of the very few people [at a meeting of gay rights litigators] who felt like marriage was something that needed to be fought for in the courts.''

Kate Kendell, the executive director of the National Center for Lesbian Rights, scorned marriage as patriarchal in 1994 but eventually recanted under pressure from Wolfson. Paula Ettelbrick, while serving as Lambda’s legal director in 1989, opposed fighting for marriage (emphasis added):

“Justice for gay men and lesbians will be achieved only when we are accepted and supported in this society despite our differences from the dominant culture and the choices we make regarding our relationships.”

Freedom to Marry got up and running in 2003, holding its meetings in New York City. It defined itself as “a regrantor and an engine of funding,” dishing out over $100,000 to other LGBT groups in its first year. Most were state or local, but one was Lambda. Even though it was already a civil rights stalwart, Freedom to Marry gave it $50,000 for “public education and organizing.”

I wonder if that’s nonprofit-speak for “tell your lesbo staffers to shut up about patriarchy.”

Freedom to Marry was just the beginning. In 2005 a group of philanthropists met in Denver and formed the Civil Marriage Collaborative, “a consortium of foundations that pooled and leveraged their resources and strategically aligned their grantmaking.” The CMC now claims that over an 11-year period, its members poured $153 million into state and national orgs to “change hearts and minds on a massive scale[.]”

Marriage was where the money was. Skeptics with civil rights jobs changed their minds or shut up. 

Goodridge v. Dept. of Public Health (Mass., 2003)

After the Vermont ruling, some advocates worried it was too soon to take another swing for marriage. But Bonauto couldn’t wait: “I felt that simply allowing gay people to continue to suffer was not acceptable.”

Representing Massachusetts couples in a marriage appeal before the state’s highest court, Bonauto argued in a Boston courtroom (as quoted by the NYT):

“[T]here really is no such thing as separating the word 'marriage' from the protections it provides. The reason for that is that one of the most important protections of marriage is the word, because the word is what conveys the status that everyone understands as the ultimate expression of love and commitment.”

The Court ruled for the gays because:

“The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason.”

The Court didn’t discuss civil unions. By the time it ruled, 49% of Americans supported that idea. The figure was probably much higher in tofu-eating Massachusetts, where Republican President George W. Bush had won less than a third of the state’s votes in 2000. In other words, gays there could’ve secured by the democratic process the same substantive rights that Goodridge granted them by court order.

But some gays wanted more than substantive rights. Bonauto’s take: the Court had declared ''it's marriage itself that is so valuable as an institution, and … it's more than the sum of its legal parts.''

How can you expect judges to give you something beyond “legal parts”?

Evan Wolfson and Mary Bonauto circa 2003

Accept Me, You Bigot

Gay marriage gained steam in progressive areas, but many conservative states banned it. In 2009, an Op-Ed in the New York Times called for federal civil unions as a compromise. Over the next week the NYT published outraged responses, mostly from people who favored marriage. One objector wrote:

“I am not willing to give up my status as a human being in the name of ‘compromise.’ I will continue to pursue the real goal of acceptance over tolerance.”

The same year, Maine voters rejected gay marriage in a referendum (the state still permitted marriage-like “domestic partnerships,” as it had since 2004). That’s where Bonauto was living with her partner and kids. In 2014 she reflected:

"I felt dashed into the rocks, because it was so personal to know that your neighbors voted against you, voted against your family. It was an incredibly painful time[.]”

Reading gay couples’ demands for marriage now, I feel bewildered. You found a partner, you’re in love, just be happy! Fuck your neighbors! I’d vote against my neighbor’s family because she plays her music too loud – so what?

We Were Wrong

But no, I understand why many gay people hankered for the word “marriage” in the 2000s. I was one of them.

I’d had a hard time admitting to myself I was gay. In my teens a shadow came up behind me whenever I thought about the subject or sometimes out of nowhere. I worried people would just lose interest in talking to me if they realized I couldn’t talk to them about boys. I only knew a few lesbians this actually happened to (a camp counselor, Ellen Degeneres) but I didn’t know any who were normal and successful.

In hindsight it looks like a “no role models” problem, but at the time it felt hard to justify my unease. I’d grown up in a left-leaning town, and once gay marriage entered the (my) discourse in college, my friends all enthusiastically supported it.

So I blamed my angst on the stigma wafting off of rotten statutes. I thought the problem must be the marriage law because it was the one thing we hadn’t cleansed yet. Or maybe I thought that because I read too many hyperbolic interviews with Mary Bonauto.

Now I think the real problem is gays are a tiny minority. That’s why we have fewer role models, we can’t always find a foothold in quotidian conversations, and we’re doomed to be stereotyped. For example, I have a straight friend (probably more than one) who assumed I was a gender person at first because I have an androgynous style. I don’t blame her – I’ve learned to be leery of gays, too, because in my experience they’re more hostile than straights to gender-critical views. 

There is no legal solution. The way you overcome alienation and stereotypes is by living your life like a decent person.

Finally, I don’t think “marriage” helps people “convey the status” of their “love.” I have a friend who won’t marry her boyfriend, though she is completely committed to him, because she endured a nightmare divorce when she was young. I have friends who fantasize about divorce but stay together for the kids. I sat on a folding chair near the back row of a friend’s wedding thinking, should somebody say something? I feel empathy for all these people; I try to understand them; I don’t think I’m thrown off course by the legal term for their relationships. Labels like “married” only mean something to people who don’t care about you.

To the Trans Folks Go the Spoils

Gay activists’ decision to fight for marriage rather than civil unions ended up helping the trans movement. 

1. The Heir

By the time GLAD filed Goodridge, gay rights orgs had already expanded their mission to include “transgender rights.” Lambda and GLAD both handled transgender cases at least as far back as 2000. So trans activism was always part of the gay marriage family. When the gay marriage campaign ended in 2015, trans inherited its assets, alliances, credibility, and clout. 

Civil unions were less controversial than gay marriage. Democratic Vice President Al Gore supported them during his 2000 campaign for president. Republican President George W. Bush supported civil unions during his 2004 reelection campaign. 

So a campaign for civil unions probably would have required fewer resources, generated less drama, and ended sooner. That would’ve meant less money raised, fewer puff pieces about “LGBT rights,” and weaker LGBT alliances with law firms and big corporations.

2. Privileged Gays vs. Vulnerable Trans Youth

At the same time gay activists were weeping over rings and cake, trans activists were championing homeless teens and murdered sex workers. A false dichotomy developed between supposedly-bourgeois “cis gays” and poor vulnerable trans folks.

3. The Rise of Queer

I think it’s understandable for a young lesbian to feel that she’s different from straight girls, and that her relationship with her girlfriend is not the same as her sister’s marriage to a man. The gay marriage movement tells her, basically, that she’s wrong. Trans activists tell her she’s queer. 

Which to choose?

4. Shame as a Weapon of War

As gay marriage began to seem inevitable, its proponents became smug and judgmental. They aggressively shamed their adversaries and no one on the left told them to cool it. Normalizing this tactic was a great boon to trans activism, which seeks to avoid civil dialogue. 

5. See Me How I Tell You to See Me

Gay people’s friends and family would’ve called them “married” if they’d asked them to. But how do you force rando religious conservatives to call you married? Get the law to call you married. Then it’s a fact. 

“Use the word I tell you to use!” Remind you of anyone?

6. Gays v. Christians

We forced religious conservatives to use our word. It alienated them, and their resistance hurt our feelings, and now we’re not teaming up to fight the transing of gay kids.

7. The Pussification of Gays

Mary Bonauto and Evan Wolfson taught my generation of gays that feelings were paramount in public policy debates. Now huge numbers of gays (yes, including lesbians) cheer for men in women’s sports, on the grounds that these men’s feelings are paramount.

Gay support for LGBT activism gives cover to the trans movement because straights fear being called homophobic (see #4).

If we’d been raised on civil unions — the idea that substantive rights matter and symbols don’t — we would be so much cooler, and so much better equipped to call out gender nonsense.

Where Are We Now?

After the US Supreme Court made gay marriage the law of the land in 2015, Evan Wolfson and Mary Bonauto sailed off into the sunset with fistfuls of social justice sinecures. Wolfson teaches at Yale and works for Dentons, the Europe-based global law firm that published an infamous guide to sneaking kiddie trans rights into law. Bonauto has taught at Harvard and served on the board of the Gill Foundation, a major funder of LGBT activism. 

Bonauto married a woman in 2008 in Massachusetts. Wolfson married a man in 2011 in New York. 

The Haas Fund continued donating to the fight for LGBT rights, with more recent work focusing on relatively innocuous areas like employment nondiscrimination. In January 2022 it announced it was winding down its “investments in LGBT Equality.”

Bonauto’s Massachusetts clients, Hillary and Julie Goodridge, married ASAP in 2004 and split a few years later. Reflecting on their divorce in 2019, they cited the stress of being civil rights celebrities as a major factor. Their daughter, who was ten when they separated, remembered she “felt like our family let everyone down.”

And as for me — I have the right to marry but it’s symbolic.