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May 17 always had two meanings for Evan Wolfson, and that says a lot about him. Yes, it was the date when the Supreme Judicial Court of Massachusetts said gay marriages had to be allowed in that state. That should have been enough to make May 17 a momentous day for Wolfson, executive director of Freedom to Marry. But he would quickly remind you that it was also the date when, 50 years ago, the U.S. Supreme Court handed down Brown v. Board of Education . And then he would note with satisfaction that one of the San Francisco judges who allowed gay marriages to proceed earlier this year was James Warren, grandson of Earl Warren, who authored Brown. Wolfson, who launched his organization a scant 18 months ago after spending 12 years with Lambda Legal Defense and Education Fund, constantly draws parallels between the gay rights movement and the fight against racial discrimination. He studies and gains encouragement from the lessons taught by the victories, the defeats, the backlashes and the turmoil of the civil rights movement. While fast-breaking events were swirling around him earlier this year, Wolfson’s recreational reading was a book of contemporaneous news reports of the early civil rights movement. The gay rights campaign is moving through all the same phases — slowly at first, but now at warp speed. Through it all, with portraits of Abraham Lincoln and Martin Luther King, Jr., flanking his desk at his New York City office, Wolfson has kept his eyes on the prize: marriage equality, once a dream, now seemingly within reach. “We are winning,” says Wolfson calmly. “We are going to have attacks and advances, and there will be a period of patchwork change. Defeats will move us forward. This is what a civil rights movement looks like.” So it is fitting, perhaps, that when chroniclers of the gay rights movement are asked to name its Thurgood Marshall, its long-view legal strategist, Evan Wolfson’s name often comes up. The match is not perfect, and others living and dead have been important trailblazers for the gay rights movement, notably Thomas Stoddard, a Lambda director who died in 1997, and Mary Bonauto, currently civil rights project director of New England’s Gay & Lesbian Advocates & Defenders. But it is Wolfson, many agree, who has “the vision thing” down pat: the strategic ability to see beyond rapidly changing developments to where it is all leading. “The most impressive thing about Evan is that, unlike many lawyers and leaders within the gay rights movement, he continually thinks big picture,” says Joyce Murdoch, co-author of “Courting Justice,” a history of gay rights cases before the Supreme Court. Enthusiastically, she imagines that just as Marshall joined the high court after his civil rights days, and Ruth Bader Ginsburg became a justice after her women’s rights career, Wolfson, 47, might be the first openly gay justice someday. That would be remarkable on a court whose current chief justice just a quarter-century ago compared homosexuality to measles. In Ratchford v. Gay Lib , the court in 1978 denied review of an appellate ruling that ordered a university to recognize a gay campus group. Then�associate Justice William Rehnquist, joined by Harry Blackmun, dissented from the denial. They argued that from the university’s viewpoint, “the question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to repeal a state law providing that measles sufferers be quarantined. The very act of assemblage under these circumstances undercuts a significant interest of the state.” Wolfson was an undergraduate at Yale College at the time. After Yale and two years in the Peace Corps in West Africa, he headed to Harvard Law School, where his thesis in 1983 was on the rarely explored issue of gay marriage. “From the minute I met him at Harvard, I saw this incredible intelligence he had and a broad background of knowledge in civil rights,” says Timothy Sweeney, who was then head of the Lambda fund. “He is as tenacious an activist as I have ever met.” By the time the Supreme Court revisited gay rights in a significant way, Wolfson was working with Lambda, on the legal team challenging Georgia’s sodomy law in Bowers v. Hardwick . At oral argument in March 1986, Wolfson sat next to Michael Hardwick, the Atlanta bartender whose case the court was considering. The climate was still harshly antigay. At one point Chief Justice Warren Burger asked rhetorically, “Didn’t they used to put people to death for this?” Hearing that, Wolfson told The Advocate magazine, “I knew we were doomed right then and there. The court felt like a very hostile place.” Wolfson was right. Using homophobic language, the court voted 5-to-4 to uphold the Georgia law. “When we lost [ Bowers ], I went through a couple of days of wondering how I could be a lawyer, how I could be part of this system,” Wolfson recalls. “But I never left the system.” From the day of the decision in [ Bowers ] until it was overturned in 2003 in Lawrence et al. v. Texas , Wolfson wore a pink triangle pin to protest the decision. When he argued a case in 2000 before the Supreme Court — where pins with messages are disfavored — Wolfson wore a tie that subtly incorporated the image. Wolfson’s argument at the high court was on behalf of James Dale, who had been drummed out of a Boy Scouts scoutmaster position in New Jersey because he was gay. Dale says now of Wolfson, “He is a visionary. He really gets it and understood the power of my story. He could easily be a millionaire working at some private firm, but he chose to work on these issues.” The argument day in Dale , April 26, 2000, marked a turning point for Wolfson. “It was a huge, great day, like a bar mitzvah,” he recalls. As he traveled back to New York from the Supreme Court, Wolfson recalls receiving a phone call telling him that then-governor Howard Dean of Vermont had signed into law a bill allowing civil unions for same-sex couples. “Two pieces of my life really came together,” he says. “One chapter had come to an end.” As it turned out, the court handed Wolfson a defeat in the Dale case, ruling that New Jersey had violated the First Amendment associational rights of the Boy Scouts by using public accommodations law to require that Dale remain in the scouts. But by then Wolfson had taken the Vermont news as a signal to turn back to his recurrent goal of advancing the cause of gay marriage. While at Lambda, he had headed its marriage project and was co-counsel in the landmark 1993 Hawaii Supreme Court case Baehr v. Lewin , wherein the court required the state to present a “compelling” reason for banning same-sex marriage. With Lambda’s blessing, Wolfson decided that his best next step was to focus exclusively on the marriage issue — as he put it, to “step back from the day-to-day fight and figure out how to move ahead.” With a grant from the Evelyn & Walter Haas, Jr., Fund, Wolfson launched Freedom to Marry in early 2003. It has a $1.1 million budget, which Wolfson is quick to point out is a pittance next to the hundreds of millions of dollars groups such as Focus on the Family are pouring into the fight against gay marriages. “It’s an ideal fit,” says Rutgers University School of Law professor Suzanne Goldberg, who used to work with Wolfson at Lambda. “With all his passion and commitment, it is wonderful he is now able to focus fully on this issue.” Once the high court overturned Bowers in June of last year, the movement toward gay marriage shifted into high gear — as dissenting justice Antonin Scalia ruefully predicted. Wolfson is in constant touch with gay rights groups, though he is not micromanaging the debate or dictating a message. “Evan sees the advantage of a variety of people advocating for marriage equality,” says Goldberg. Wolfson acknowledges that part of his job has been to calm the concerns of fellow activists. Some in the gay rights movement — most vocally, Rep. Barney Frank, D-Massachusetts — fear that the marriage issue is moving too fast and has already produced a backlash in the general public that could harm the cause. “Now is not the time,” Frank told the The Washington Post in March, dousing the enthusiasm of the movement with this further comment: “When you’re engaged in a political fight, if you’re doing something that really, really, really makes you feel good, then it’s probably not the best tactic.” Wolfson dismisses the nattering concerns about timing and backlash, resorting as usual to history. “Martin Luther King hated the word �backlash,’” he says, pointing to King’s 1963 letter from jail in Birmingham. “For years now I have heard the word �wait!’ ” King wrote. “ It rings in the ear of every Negro with piercing familiarity. This �wait’ has almost always meant �never.’” Wolfson also thinks there is no meaningful division in the ranks of gay people. “We are fighting for the right to marry, and virtually all gay people want that choice, and they deserve that choice.” Marriage, symbolically and otherwise, is such a central institution in society that the gay rights movement would be incomplete if it was not one of its objectives, says longtime friend Sweeney, now an official of the Haas fund, who works with Wolfson. “It is redefining, for a lot of nongay people, who gay people are in a more complete way,” says Sweeney. “Evan felt all along that this vision would come true.” Moving the marriage debate front and center has been essential to focusing the nation’s attention on how nonthreatening the prospect is, Wolfson says. One of his favorite maxims is, “There’s no marriage without engagement. We have to engage nongay people and embolden them to do the right thing.” Once a reasonable percentage of the population has become comfortable with, even if not wild about, the idea, then the courts will act, says Wolfson: “It’s not just a legal strategy. You can’t leave it to the courts. You need both — a much fuller engagement.” In his new book “Why Marriage Matters,” Wolfson urges gays to tell their stories to disabuse friends and family of the notion the debate is about “hypotheticals.” Exhibit A for this multidimensional strategy, Wolfson says, is Lawrence v. Texas , which struck down the Texas antisodomy law last year, repudiating Bowers v. Hardwick in the process. Some counseled against bringing the Lawrence challenge out of similar concerns about timing and backlash, but it was necessary, Wolfson says. And the victory came, Wolfson thinks, because the court sensed from the public that Bowers had become anachronistic, even repugnant. The court’s language in Lawrence renouncing Bowers , he adds, shows receptivity to the idea that “there is every connection between parenting and family and, yes, marriage” for gay as well as straight people. Likewise, the turmoil of 2004 over the issue — the renegade wedding ceremonies in San Francisco and elsewhere — has already produced a shift in public attitude. A year ago, civil unions were at the outer edge of what seemed palatable to the public; now they are seen as a tepid fallback, the easy second choice to marriages. Wolfson is unwaveringly confident that gay marriages will become an accepted reality, though he does not predict when — or by which precise route. “Thirty years from now people will look back and say, �What were we thinking? Why would we deny committed couples the protection of marriage?’” Wolfson asks. Then, invoking history to the end, Wolfson offers Gandhi’s simple description of the evolution of change: “First they ignore you. Then they laugh at you. Then they fight you. Then you win.” Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected]. This article was originally published in The American Lawyer magazine, aRecorder affiliate based in New York City.

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