>> George Chauncey: Hi, my name is George Chauncey. I'm a Professor of American History at Columbia University. And today I'm going to be speaking with Mary Bonauto about the history of the marriage equality movement and the almost forgotten history of what life was like for lesbian and gay couples in the years before they had any legal recognition, what it was like to manage a life together when powerful institutions from hospitals to family courts and probate courts were required by the law to treat them as legal strangers. And I'm really deeply honored that Mary Bonauto has been willing to talk with me about this. For more than 30 years, since 1990, Mary Bonauto has been the civil rights director for GLAD GLBT Legal Advocates and Defenders, the phenomenally influential Boston based gay rights litigation group. She's a recipient of a MacArthur Genius Fellowship and is indeed a brilliant legal strategist who has worked on a very wide range of social issues, has a very capacious social vision. That said, for all the other work she's done, I can say as a historian that the history books are going to remember her as the person who devised and argued successfully the first case in Massachusetts in 2003 that led to a state Supreme Court recognizing that the liberty provisions of the state constitution required that gay couples have the right to marry. So she won marriage equality in the first state, Massachusetts. And then a dozen years later in 2015, she argued the Obergefell case before the Supreme Court. The case, which established the right of gay couples to get married nationwide. There's a reason that she's often been called the Thurgood Marshall of the marriage equality movement. So, Mary, you've worked through many, many issues in your career as a legal advocate, from trans rights to juvenile justice to protecting queer students. But today, we do want to focus on your work on family issues and marriage equality. And this is a different kind of discrimination. And we're going to talk about it in some of the other webinars. It's not as public as raids on gay bars or censorship campaigns, but it's always struck me that it's been a more pervasive, even if less visible form of excluding lesbian and gay people, LGBT people from the rights of full citizens. It's had such incredibly intimate effects on their lives, how they organize their relationships and their relationships with their children. And I wonder if we could go back to 1990 when you became an attorney at GLAD. Can you describe just the cultural and political terrain for gay family issues at that point? >> Mary Bonauto: Absolutely. So first, if I can just set the table in terms of the big picture. So in the mid 1980s, there were two really important things that happened, one national, one more in Massachusetts, and that's where I was based. The national one was the United States Supreme Court, upholding Georgia's enforcement of a sodomy law only against same sex couples, even though the law was not written that way. It was more broadly applicable. But the thing that's important for family law issues, among others, is that the case had been argued by looking to precedents of familial privacy, among other things. And in the opinion, the court went out of its way to say that those arguments were, "At best, facetious" and that there was, "No connection between this relationship, this, you know, what had happened that led to this arrest and those family precedents." So it was a major stain on LGBTQ people having families at all or being seen as having families instead of just reinforce the idea of criminality, of being, you know, an LGBTQ person at that time. The other thing more locally is, you know, in my experience that LGBTQ people, like many others, really care about raising and nurturing the next generation. Not everybody, but people have a lot of love to give. And there were these two men in Massachusetts who had gone through the program, were certified as foster parents, and three children were placed with them in the mid 1980s. And The Boston Globe, not one of its finest hours, did all kinds of sensational shoots of this, of the kids coming and insinuated like, how could the department of whatever or the that department who handles foster care, how could they possibly have been thinking of placing three children with two gay men? And within a very short time, the children were yanked and Massachusetts changed its regulations to say same sex couples, gay people were at the bottom of the list in terms of what's best for children and placing children out of foster care and into a family. And that's what we ended up, GLAD ended up litigating. That did get resolved in 1991. But again, reinforce that idea not only that we don't have a family, but that we absolutely shouldn't have families. We shouldn't have families with children, that we were dangerous. And, you know, those kinds of stigmas made doing legal work in this area very difficult. >> George Chauncey: You know, what you've said really reminds me of the longer sweep of this historical representation of lesbian and gay people, too. And I think of the 40s and 50s. It's all about depictions of them as sexual creatures. And obviously sexual culture was important to gay and lesbian life, but it wasn't the only thing going on. And you just see again and again in the public representations, both of gay people that they're not seen as capable of love. In fact, it was one of the most pernicious things said to young gay people, "You cannot love, you cannot be part of a family" and I think you're bringing home that as recently as 1980s and 90s, that was still a really critical part of the way that people were understood and shaping legal decisions over the lives of people who were in fact in loving relationships. You know, back in 1990, this was way before marriage seemed like a possibility. Most movement organizations were not advocating marriage, they were focused at that point on what seemed like much more critical issues, frontline issues. And yet my sense is that you pretty early on had people coming to you, asking you as an attorney to help them get married. What were the kind of issues they were bringing to you? Why were they... why did they want that? >> Mary Bonauto: You are so right. My first week on the job, I started getting phone calls and I received them regularly over the years before I finally made the jump to do that kind of litigation. But one thing the reason that people called is because they wanted to. They wanted to marry. They saw it was a choice that everyone else had. And they had a love. They had a commitment. They had sometimes been living this commitment for decades, the kinds of self sacrifice and care of one another that you would you know, that I think we idealize as being part of a family. And it's something that they felt expressed who they were and who they were as a couple, and not just two disaggregated individuals who happened to be living together or were roommates or something like that or friends. So that was part of it, and that's always been part of it. That's not all of course, there are a lot of concrete issues and ways in which people were systematically disadvantaged that also contributed to these calls. >> George Chauncey: Well, so I wonder if you could talk a little bit about that, too. What are the kinds of legal vulnerabilities that people faced because their relationships weren't and couldn't be recognized by any form of law. >> Mary Bonauto: So one difficulty people had and it may not seem as accessible now in the era of the Affordable Care Act, but was that it was impossible for people to purchase a family policy of health insurance. So health insurance always a big cost item. And the idea that you would have to purchase two policies or two policies, one that covered an adult and their child or children and then another just drove people to destruction. I mean, this was a big outlay. So that was something that, you know, really has taken a very, very long time to resolve. So that's one thing. But I will also say that sometimes we would be dealing with end of life issues. So under our Medicaid laws when you have a person who needs to go into a nursing home and most people can't afford nursing homes, so Medicaid will pay for nursing homes. But the idea is after the person who's in a nursing home may pass. If that person owned a home with their partner and then Medicaid would have put a lien on the house and would foreclose on the house, potentially thrusting out into the cold, you know, the partner of many years. And that's a protection that married people had that unmarried people did not. So that kind of vulnerability and destabilizing influence very concerning. I will also just mention issues around... Again, it's something that seems so simple as a question of just respect for people's sorrow and grief, but that unfortunately didn't work out that way, is issues around disposition of bodies when someone died and give you a couple examples of that. You know, I have dealt with many people who, unfortunately, their partners, you know, had a heart attack, whatever it might be. I have a good friend even whose partner died and she found her partner on the bathroom floor in the morning and no right to call anyone and say, here's what we've agreed or she wants in terms of where to go, her service, anything. It didn't matter. They had to call the family. Now, in that instance, it was a good situation because the family knew about their relationship and was supportive. But other times that has not been the case. And if I could even just give you another example. This preceded my time at GLAD by just a few years, but it was a situation where there was a man who came out to his family and the family did not accept it and threw him out of the house. And the father went into his room and with an axe, destroyed everything in his room and closed the door to leave it there that way. And he went on, thankfully, to find a partner and develop a happy and full life, but became ill. And the mother knew about this, the father had passed. And at the hospital, the hospital says to the partner, the mother has to take the body, that's the law. And the partner, Kevin, at least persuaded them to honor John's wishes to cremate him. So he was cremated, but the mother took the ashes and buried them next to the father. And when Kevin came to us about this and this was not me, this was my predecessors at GLAD. We brought a lawsuit to say that, in fact, John had expressed his wishes to a doctor and although it's true that the family, the legal family normally has rights in these circumstances, priority that if you've expressed your individual wishes about what you want, then that should be respected. And on that basis, we were able to introduce into evidence the notes the doctor took. He wants his partner to have his ashes. They are supposed to be put in some of his favorite fiestaware and definitely not to be in the family plot. And those ashes were exhumed and returned to Kevin for care. >> George Chauncey: And for all of us, people who have lost parents or partners that's just so powerful what happens in those last moments of life being able to be with your partner, with your parent as they're passing and to be able to control possession of their remains is so important to us. And to have that made so difficult and often impossible because of this discrimination and family law is very sobering. And I want to ask you, many of the things that you mentioned are things that could happen to anyone and did happen to anyone at any time. But we're also kind of brought to a head during the Aids crisis when suddenly you had thousands of in the early days, it's spread in many ways now. But in the early days, thousands of young gay men who were stricken with this disease in the prime of their lives in their 20s and 30s, mostly once they were diagnosed, almost no one survived more than two years. Many lost their jobs. And so all these issues came to a head of losing your job and therefore losing your insurance and not being able to get on your parents insurance. Going into the hospital, what's going to happen with remains to even talk a little bit about what the things that went on in hospitals when couples relationship wasn't recognized. And then I'm just curious about what your thoughts are about the impact of Aids in making people think about these issues. >> Mary Bonauto: Well, I will say that the impact of Aids was profound in terms of thinking about family issues, because you had exactly the situation you've described intense vulnerability and not being certain your wishes are going to be respected. I was a somewhat new attorney in the 19... late 1980s and literally took calls from payphones, from people who would call me and say things along the lines of my boyfriend died. His family is here. They are taking everything out of our apartment. What can I do? And as a result, one of the things that I did and I think a few other people did as attorneys is try to make sure we were reaching out as much as possible to ensure that people had wills about whatever little they had, that at least they could express their wishes about what should be done with it, and also to create documents or call different things in different states to make sure that there was medical decision making in place so that if somebody was no longer able to make their own decisions, they would say this is who should be making those decisions rather than default to the family. Now, of course, sometimes the families were very supportive. So I don't mean to like paint with too broad a brush here, but again, at least giving that decision to the individual. So it was very big, but there were too many horror shows for people not to get the point that family really mattered. And complementary to the whole Aids crisis, another thing that was happening in the 1980s was really sort of this advent of planned lesbian families. >> George Chauncey: So you talked a moment ago about wills and I wish you would talk a little bit more about that because my sense is that wills were important, people started writing them as Aids crisis really focused people on the fact that even a young person could die unexpectedly, but that they weren't always providing rock solid legal protection. When you're talking about a will written where one person wants to provide their surviving same sex partner with things from their estate and just talk about that a little bit. >> Mary Bonauto: Absolutely and yes. And it is absolutely connected to the Aids crisis, because if a family, for example, discovers on death or has always been unhappy about their child being with a same sex partner, they could contest this and there's more incentive to do so when there's more at stake. But also there was a principle at stake I think for some people. This I am the family. You are not a family. And so what that means is that Wills could be challenged. And two of the most prominent grounds are that the person making the will lacked capacity. So you're talking about somebody who, you know, was ill. And the question is, what was their state of mind gets into medical evidence and so on. But you had to plan for that vulnerability. And thinking about that at the time that you were even preparing a will. The other issue was undue influence. And again, that's rife with options for insinuations about somebody trying to take advantage of somebody else, especially when the family didn't particularly know of or if they did know of, didn't appreciate the relationship that was involved. So, yes, wills were extremely important, as were other medical... as were medical decision making documents and financial. But still, we had to run a gauntlet in terms of trying to protect people with those. GLAD had a whole program called Living Legacy to try to get out there and get documents to anyone who needed them. >> George Chauncey: And then in terms of older people who've been together for a long time, Social Security, pensions, how did that work out? >> Mary Bonauto: Not well. You know, again, under tax and other laws, pensions are for people, for individuals are for people who are married, who would have survivorship benefits, not for partners. And likewise, with respect to Social Security, it's not entirely... it is largely a marriage based system. When you start talking about other adults, kids can get in other ways. But yeah, it's what that meant is like for Social Security, we represented a man who had been with his partner since he was 18 years old and 60 years later was still with him, caring for him through his Parkinson's. And when his partner died, he, you know, feeling a widow, did what the other widows did and went to Social Security only to find out that their relationship did not count at all. And on the pensions, we had a very difficult situation, really wanted to be able to do something about it on behalf of a man who had been with a Boston firefighter for the better part of 40 years. And Captain Campbell, you know, retired, came down with throat cancer. And Martin, his partner, because they were not allowed to marry at the time, took care of him. And he had a lot of mucus in his throat, had to clear it, swab it to keep him from choking and stayed with him right through the end. And at the end of this, Martin not only lost the love of his life, but he lost his economic security because the pension disappeared like that, because there was no relationship that the law had to attend to. >> George Chauncey: And it was impossible to go to the company supplying this pension and explain the circumstances and have them respond? >> Mary Bonauto: No, it was not, because the underlying laws were such that your relationships were invisible. You were legal strangers, you had no claim to bring. >> George Chauncey: So my sense is that in the 80s and 90s, attorneys like yourself all over the country were scrambling to come up with stopgap alternative legal measures that could help people survive some of these life crises or weather them a little bit more successfully. One was domestic partnership, which might be a way of allowing someone to convey his or her medical insurance to a partner. I mean, talk a little bit more about the kind of big picture family issues, what happened when a lesbian couple decided to have kids? >> Mary Bonauto: Sure. >> George Chauncey: It's so, you know, part of it is, well, not so easy, but part of it can take place. But then what were the legal issues there that you were having people call you about? >> Mary Bonauto: Well, at least if you're talking about a couple that decided to from the get go to have kids on their own, you know, the part of the question is the law was set up for biology, birth, marriage and adoption. Those were the markers of family. If you didn't give birth to the child, if you weren't married and it wasn't an adoption, then who is this other parent? So that immediately meant that let's say, for example, you had two women and a child. You know, was there a legal relationship between the two women? Those two points? No. And was there a relationship between each of the adults and the child? No, only one of them. So that's immediately a very difficult legal structure to navigate. What does that, you know, parent who is not regarded as a parent, like what's their right to make medical decision making, to make medical decisions in an emergency? Believe me, those issues arose. Handle school issues. Be able to attend school conferences if somebody was just too uncomfortable with this. Lots of issues along those lines. And then, of course, it all was most difficult and excruciating if the couple separated. And there was conflict and so on, because in those circumstances, truly, you know, the fact that someone gave birth was the trump card and the children would really lose out on the protection of another parent. And sometimes it was that other parent, for example, who was providing their health insurance because that was their job allowed them to do so, for example. So losing that relationship and then losing the financial protections, you know, that makes it just too crude because it was just a terrible situation for everyone and something that had to be addressed and became a focus of the work. >> George Chauncey: And can I just add to that? I can remember in the days when that first became possible in certain cities, the pictures that were taken as people walked out of city hall that first day holding up their domestic partners certificate. And in retrospect, it seems, yeah, kind of meaningless, a piece of paper. But it was the first time they had some tangible recognition of their relationship that that it was valued in a way that their brothers and sisters relationships were valued. And it's so powerful. Those images still just radiate the importance of this. >> Mary Bonauto: Yes, it's the difference between utter invisibility and being seen, if not in your full humanity, at least in some way. So, yes. >> George Chauncey: But it also had some practical results, right? >> Mary Bonauto: Well, it did, depending on the place. So, for example, you know, I had an old friend who's in 1990. Her partner lost her job and the loss. And so this woman lost her health insurance. And my friend wanted to be able to provide insurance for her on her job just like everyone else can. And suffice it to say, we had to work really hard for that for six years and convince the union to fight for it and the university to agree to it. But they did. So domestic partnership could mean something if you made it and the underlying laws permitted it. But on the other hand, in Massachusetts, where again in the early 90s, Cambridge, Boston we're really trying to think about creating domestic partnership registries with some protections. We ran into a real hurdle around health insurance because the underlying laws said it needs to be a spousal relationship, period. And that fight wasn't really won until we were able to obtain marriage in Massachusetts in 2004. >> George Chauncey: And then there's the issue of what happens when relationships go bad, when a couple who've been together break up like both straight and couples... both straight and gay couples do. Straight married couples get a divorce. What did gay couples do at that point? >> Mary Bonauto: Well, without marriage, I mean, it's the kind of thing where we would joke sometimes that one of the benefits of marriage was divorce. I hate to say it that way, but there were rules. You know, that property is going to be divided equitably. You'll look sometimes, depending on the state, to the contribution of both parties, to the assets in the marriage, et cetera, et cetera. But there were no rules. And what that usually meant was if there was a partner who had more financial resources or more financial sophistication, you know, they were able to dominate. They were able to really not settle up to disregard the relationship. They had placed assets in their name while the other person is taking care of things at home or running a small shop or whatever it might be. They were able to keep assets that way, and then in the course of any proceedings and there were people like me and others who had developed theories that were not divorced but that were based in like dusty old trust law and so on, to be able to argue about these things. But they would still, the more precuneus partner was definitely able to avoid any kind of full accounting. One big development for us in Massachusetts, at least in 1998, was that the state Supreme Court affirmed a course of action that many of us had suggested and hoped would work, which was at least to try to do something in writing if both parties would agree about property and financial arrangements. It's not the same as being on a deed, but at least it is something that could meet the requirements of a contract and be binding. It's not the same as divorce, still, not the same requirement of some sort of equitable distribution. But it was something and there were just too many people who had been left behind. >> George Chauncey: So at the same time that gay male couples were increasingly worried and startled to be confronted by the possibility of one of them dying, lesbian couples who were raising kids together also had to be worried about what would happen if the birth mother died and what would happen to her partner and their child. I wonder if you could talk about that a bit. >> Mary Bonauto: Well, let me start first, if I may, with death, because there was a very important case in Vermont where a woman had a car accident on the way to the dump and... the child's grandparents from the deceased mother's side came in and took the child. And took her to another state. But there was somebody at home who was her parent who fought very hard to get that child back. And one of the first things the child said, this won't be an exact quote was, "Where have you been? Why did you leave me?" Not at all of course what she had wanted was horrified by the whole situation. That's an example of a story that reverberated through the community, that terror. And, you know, likewise, you know, coupled driving and having a close call with an accident and realizing that if the birth mother, you know, the one with the legal chips died, that the other person would be a nobody. So it was very important to think about solutions to that And a woman named Nancy Polikoff, now a retired law professor really built on this innovation from the West Coast called Second Parent Adoption, where again, you know, the other parent would be able to adopt while the existing legal parent retained their rights. And that remains a very important source of protection for people to be able to obtain those second parent adoptions, not just because you're married, but including when you're not married. >> George Chauncey: How solid was second parent adoption? Was it vulnerable to the kind of... attack that you have described affecting people who wrote wills and so forth, or is that a pretty solid arrangement? >> Mary Bonauto: It is a solid arrangement. That said, to my point about couples not always being at their best when they separate, especially when there are no rules of the road for a divorce. And because in a divorce you're also assessing what happens with the children. There were examples and have been examples of couples who've had a second parent adoption, and then one moves to another state and disclaims the effect of the adoption and seeks sole custody or seeks to, you know, to deny visitation or contact or decision making to the other parent. So it remained contested. And it's not free of contestation now, but it is legally supposed to be rock solid. >> George Chauncey: Another complicated set of issues arose when a couple separated. And the question of the relationship of the woman who was not the birth mother to the child. Can you talk a bit about that? >> Mary Bonauto: Yes, and I certainly had many of those cases over the years, and they're very painful cases to see a parent not only turn their back on the other parent, but in a sense to turn their back on the child. And that very important relationship the child has with this other parent. So, yes, in some of those cases, you know, I was dealing with situations where literally either the birth parent or the adoptive parent, the one with the legal rights, would literally say you're nothing more than a babysitter. You're an outsider. I was always in charge. You have no rights. And what the courts needed to do and the law needed to understand is that as a child experiences this, they look to who loves them, who cares for them, who's asking them about school or helping them with their bedtime routines. And that that person is very much a parent to them who's guiding them and supporting them and loving them. And the law has at this point evolved. But we were involved in some of the early cases to say you have to look to some degree at functional relationships. Has this person been functioning as a parent and did the person with the legal rights, the adoptive parent, the birth parent, do they acquiesce to this situation and support it as long as it was convenient for them, but only turn their backs on that reality when they wanted to move on to a different relationship? And that has been a struggle. It remains a struggle to some degree, but we were able, at least to keep some parent-child relationships intact. It's a very important case in Massachusetts in 1999 on this, where we'd been losing for a long time in the courts and the Supreme Judicial Court turned it around in a case that we had and at this point, more than half the states have such rules in place where functional relationships called one thing or another have to be respected. >> George Chauncey: Yeah, I had a student who was born, I guess in the early 90s. A lesbian couple as parents in Vermont. Each of the mothers had a child and they were growing together as a family. And then the women separated and had a very angry, bitter separation. And my student's mother felt she needed to take her away to another place. And she literally never saw her sister again. There was no way, no legal proceeding available to them to establish some kind of rights for these children to see each other and to see their other mother. And it was just excruciating to see. And again, as you said about divorce, it's an incredible thing actually, we don't think of it in this way, but at least does establish a procedure in which very complicated relations, difficult issues can be worked out with the best interests of the child and both parties being heard. And it's yeah, some of the stories that you hear from kids of that generation are really heartbreaking. So you've described a bunch of procedures that you and other attorneys tried to put in place, but also their incapacity to really provide the security that marriage did. Could you talk a little bit about how you started thinking about marriage as the best way to resolve some of these issues? >> Mary Bonauto: Yes, I did think that having access to marriage was extremely important. Number one, I was hearing it from people directly about why this mattered to them, whether it was because this is the person I love and what you do, what I want to do because I love this person, is marry them like my siblings have, like my coworkers do, like my cousin does whatever it might be like. It's not a surprising aspiration for someone to have. Doesn't mean everybody has it, but some people do. And when I was talking to people about marriage, when they were nervous about it and I made... some decisions that perhaps this is the way to go, maybe game on. And I reminded people like this is a choice for individuals, normally not for the government to make, to tell you you can't marry the person you choose to love and commit to for your life, ideally. And not only that, but that whole way there's a gateway of protections here and responsibilities that really help to stabilize and support people in all kinds of ways they cannot anticipate. So, you know, we've had issues of workers compensation where somebody's injured or killed on a job and non-marital partner, no protection's there, spouse, absolutely protections there. You know, Social Security, you can't contract your way into Social Security. It doesn't exist that way. You can't contract your way into different tax arrangements. So when you start thinking about breaking down these issues, the only way to really provide the protection and security and really recognition that this is my family for some people was to marry. And I will say for myself as an attorney at GLAD, you know, I really was experiencing the civil rights dimension of this, that there were lots of people who were like, yeah, you're all good and we love you but no way can you join the Boy Scouts and no way should you gay people being in the military and absolutely forget about it with marriage. And you start recognizing that there's some themes here and that by telling LGBTQ people you're not qualified to marry, no matter how long you've been together and no matter what your commitment was really a statement about our lack of equal citizenship that had to be addressed because it was affecting our lives more generally as well. >> George Chauncey: You know, you've sometimes spoken to me about the power of marriage, just as a word about communicating the compelling significance of a relationship. Can you talk about that a bit? >> Mary Bonauto: Absolutely. I mean, we see now because we have marriage that there is this unquestioned assumption that your spouse has a right to be by your side in in emergency. Absolutely. And there is such relief for people about that. But pre marriage, among the many examples, one that really stands out in my mind arose in Florida. And it involved these two women who had been together 21 years. Together they had fostered 22 children. And they were on a trip, they left from Miami. A little cruise with three of their children. And while they were out at sea, one of them had a stroke or something like a brain aneurysm had to be flown off to Jackson Memorial Hospital. And the partner arrived the children arrived. They knew this was terribly serious. They tried to get information, could not get it. They were kept waiting despite repeated requests, waiting for over eight hours to get any information at all. And it was only when the woman's sister showed up that they were finally able to come in and have any time with their mom, with their partner before she passed. And that is excruciating for people and one of the staff at the hospital even said to the partner, you're in an anti gay city. You're in an anti-gay state. And that was supposed to suffice as an explanation. >> George Chauncey: And did they have any other kind of legal documentation of their relationship? >> Mary Bonauto: They absolutely did. And in fact, the power of attorney was faxed to the hospital and was still disregarded. And the idea that you have to count on the kindness of strangers. The basic humanity of strangers is what I think also continues to terrify people that prejudice can take over. >> George Chauncey: Whereas to be able to say, you're married, we're married. I need to go there and be with my spouse. It's just compelling and taken instantly as providing you that right. >> Mary Bonauto: Not foolproof, but a lot better protection. >> George Chauncey: A lot better, yes. So obviously you played an absolutely central role in the long campaign for marriage equality. Were one of the first attorneys to really decide that this was going to be a goal for yourself, that you thought it was important for lesbian gay couples to have this right. And if we think of that movement as lasting roughly 20 years, it actually lasted longer. But if we start with the Hawaii case in the mid 90s and then the case that you filed in Vermont a little bit later in the 90s, going all the way up to Obergefell to being decided by the Supreme Court in 2015, kind of talking about a 20 year period there. And I wonder when you first started thinking about marriage. A, when did you first start thinking about marriage as a goal and... when couples didn't have any kind of legal recognition, how did you think you were going to go from there to actually winning the right to marry? That's a pretty huge leap. It's there now, we all kind of take it for granted. But just ten years ago and certainly 20 years ago, it was almost unthinkable. How did you think it and how did you think we were going to get there? >> Mary Bonauto: There are a few answers to that question. I mean, one is when I came to GLAD in 1990, even though we had, you know, had a very tumultuous decade in the 80s. But again, a lot of silver linings there in terms of people understanding we had to fight for our families. And there were some cases that were won in the 1980s that did not exist in the 1970s. So by the time 1990 rolled around and I started at GLAD and I started in part because Massachusetts became the second state in the nation to enact a non-discrimination law based on sexual orientation after a 17 year legislative fight, I felt like we were on a roll. I felt like things were different from how they had been 5 or 10 years ago myself in my own life. And I really believe that once people knew more about us, they would find that we had more in common than you would think. So I had enormous optimism. Maybe it was being in my 20s, I don't know. But I had enormous optimism. But then I also just really felt the humanity of it all. And so for me, in terms of really getting focused on it, like from the time I received that first call, I didn't say, "Oh, marriage is unattainable." I didn't say, "That's silly." I didn't say any of that. I said, I get it, I understand and this is not the right time. You know, we are in the middle of a referendum process about our non-discrimination law. People are having a hard time coping with us having legal rights to contest discrimination. Let's get through that. Let's get through a few other things and see if we can make, you know, make more of a fight on the family side. So I felt like it was partly like that we would get there, but we were not there and ready to make that fight yet. And I will also say, like, I encourage people not to bring lawsuits. I encourage people to think about raising this issue as a matter of public policy in the legislature and not that many of them did. And what changed my mind about it being the time to move was the Hawaii Supreme Court decision in 1993 from the State Supreme Court because these three couples loved each other, wanted to get married and had been turned away. A lower court had turned them away, and the Hawaii Supreme Court said no, that complaint should not have been dismissed at a bare minimum, the states a claim of sex discrimination and that means this exclusion has to be justified under our state constitution. And... I remember receiving from people like two pages or three pages from the opinion that listed all the kinds of protections and rights that come with marriage. That was sort of like it was educational for people to just see like, whoa, I didn't realize there were all these protections for it because of course people will not married themselves, so they would not have known. And I just saw if a court can get this because I didn't think a court would appreciate this at that time, that we shouldn't lose this opportunity. So I didn't file a case immediately, but I definitely tried in my way to support the Hawaii litigation as it continued, supported the effort, and helped really further the effort to educate people about what marriage was, why it's a fundamental right, how it had changed over time, you know, exclusions based on race being, you know, not the same, but really illustrative to say, yeah. Sometimes a state draws a line about who can participate in marriage in the wrong place, and it's drawn the wrong line here. There is no justification for this. Like, look at tradition. Okay, tradition. Nice. But like, what's the reason for continuing this tradition? What is the reason that same sex couples alone have to be excluded? You know, sometimes people have a philosophical idea about the real purpose of marriage is, you know, procreation and raising of children. Yes, fine. You know, people want to do those things. Terrific. But it's not enforced. You know, it's not like there's a mandate to have a marriage, to have a marriage with children. >> George Chauncey: You don't have a fertility check before you get married. >> Mary Bonauto: Indeed. Far from it. And you had you know, we had fun with this one in terms of whatever. We had examples, certainly of people in their 70s and 80s who were marrying at those ages because of love, not because they thought they were going to have a set of children. So in one way or another, when you looked at the rationales, they really seem born more of habit. And a lot of assumptions about LGBTQ people rather than really how the state police the boundaries of marriage. So, you know, I was on the road talking about these things and trying to give people hope that this actually was doable. And there are a lot of people who wanted to hear that and needed to hear that. Of course, there are people who completely oppose this. They wanted to start from scratch, have a new system for how you think about families and supporting relationships and children. And I think those efforts are also important to do. I think the more the government can do to like, help people live the lives they want to live and have their families be secure is a good thing. But I also just felt like right now that's marriage and so I can do some of both. But marriage is absolutely part of it. >> George Chauncey: After Hawaii, the next big case was the case that you and a couple of colleagues filed in Vermont and I wonder why you chose Vermont. And what do you think the significance of the Vermont case was? >> Mary Bonauto: We filed myself, Beth Robinson, Susan Murray filed this case in Vermont because, again, there have been a real interest in bringing forward litigation and figuring out some way to get to marriage in Vermont. But it really was also an outgrowth of Hawaii. The whole... The people who oppose this, all of them were very focused on Hawaii. And we really also felt like we needed to have another state to show this wasn't just a one off in Hawaii, that this is something that other people in the nation want it as well. So that was part of why we filed. And one similarity between Hawaii, Vermont, my case in Massachusetts and so on from there was that these cases were based on the state constitution. And that's extremely important because in our federalist system, the idea is that states can do some experimentation and that that experimentation is valuable to the nation as a whole and understanding the experiences of states. And when a case is decided under the state constitution and the ordinary course, it's not reviewable by the U.S. Supreme Court. So that allowed us to lower the stakes to some degree about a decision for a period of time. And the Vermont litigation was a phenomenal experience working with these people and with our three plaintiff couples. And, you know, again, ordinary Vermonters who wanted this to happen for them, for their relationships, their families. And one of the things that's so interesting is that the case was argued by Beth Robinson about two weeks after Hawaii and Alaska had amended their constitutions. Now, in Hawaii's case, to say that only the legislature can change any definition of marriage, Alaska is to ban it. And I think that must have influenced the court, because the chief justice at the time later said so in a law review article. But it may have really influenced the outcome of the case. We thought we had lined this up perfectly to be able to win marriage and that some state had to be first as one of the justices had suggested, at oral argument. But the court decided absolutely same sex couples are entitled to the same rights and protections under state law as are available to married couples. But we're going to let the legislature decide how to do this. And that forced us into the democratic process to have this fight and that was very difficult but I think in the end, also extremely productive. And we ended up with the nation's first civil unions, a parallel status mostly to marriage at the state level, not the federal level. And that was beneficial in the sense of it provided protections for people, but also for the larger country to sort of wrap their mind around the idea that it was okay, it was okay if same sex couples who had made this commitment would be able to share some basic state level protections with spouses and to provide a model of that. So there were some really great things that came out of there. And for me, one of the most meaningful parts of the decision was toward the end of the opinion in which the court said that the decision was really a respect for the common humanity, common humanity of Vermonters who aspire to this institution. And I had never seen that in a court opinion before. To have us have us in this aspiration be referred to as part of our common humanity. And I think that has carried forward in the following decisions. >> George Chauncey: So it was a real turning point when Vermont state legislature enacted civil unions for all the reasons you've laid out. And yet you weren't satisfied with civil unions. Why not? A lot of people said, yeah, civil unions are great. They don't have all the connotations of marriage. Why wasn't that sufficient for you? >> Mary Bonauto: It wasn't that it wasn't sufficient for me, although it wasn't it wasn't sufficient for my clients who wanted to marry, who aspired to be in that institution that everyone understood as a marker of family and that had such power in and of itself. And that brought with it all of these other protections. And that itself would remove the stain of saying, like, you're identically situated to any other couple who wants to make this commitment, but you alone are not able to. So again, really speaking to that equal citizenship point. >> George Chauncey: So a year later, in 2001, you filed a case in Massachusetts, the Goodridge case, that would make history two years later when Massachusetts Supreme Judicial Court ruled for the first time in the country that the state constitution required that same sex couples be allowed to marry. Why did you choose Massachusetts to file this case and what do you think the significance of that ruling was for the longer term project of securing marriage equality? >> Mary Bonauto: With respect to both Vermont and Massachusetts, the state constitutions were very clear about equality rights. In Vermont, it was phrased as common benefits for all families, among other things. In Vermont... I'm sorry, in Massachusetts, our Constitution was penned by John Adams, and there were multiple equality provisions and liberty, as you say. And the decision was really grounded in both. And the court had to wrestle with, again, this is not a policy decision. This is a question about whether the state has drawn the wrong line, like what is the justification for excluding this group of people? And the court found no justification. You know, procreation was raised, child rearing was raised, conserving resources was raised. But, of course, if all of these couples had sought to marry a different sex partner, no one would have said anything about resources. So yeah, it was a major, major breakthrough and there was real heart in the opinion. But in the end, it was also very much of a constitutional decision. >> George Chauncey: Yeah, I remember going to Cambridge and which of course Cambridge being Cambridge had to be the first place that opened the doors and let people get licenses to get married. And I interviewed people who were waiting in line that first night before the midnight door opening and asked, "Why are you doing this? You know, what does this mean for you?" And I was stunned to hear again and again that people had never thought this would really happen. And they'd kind of thought, well, they didn't really care that it didn't happen. And it was like, you can't live feeling this burden all the time. And yet suddenly, when it became possible, many of them felt that they'd been complicit in their own second class citizenship before and not having demanded this. Many, of course, had been working for it and trying to win that right. But it just had an electric effect on them. Of course, it also electrified the opponents of marriage equality and you had 11 states passed constitutional amendments by popular referendum that November. [Inaudible] marriage to a man and a woman. When you think back about the political implications of that marriage victory in Massachusetts in '03, marriage actually beginning in May of '04, how do you think about that, the sort of the balance sheet of the reaction that it produced, you had to contend with and the openings that it seemed to provide? >> Mary Bonauto: Yeah, that was an excruciating period. I will say those amendments were very hard. And they passed in states where there was no chance of a state Supreme Court ruling their way, except with maybe one exception. And these states, for the most part, already had statutes on the books that they passed after Hawaii to say there shall be no such thing as a marriage of a same sex couple. So it did feel like, you know, political opportunism. But it was very, very painful because obviously there were people living in these states who had the same aspirations and they were being told, "You're second class citizen, you're a second class citizen." So all I could do, and I think working with other people do, is to try to turn all that around. And for us, turning it around meant making sure that we preserved marriage in Massachusetts because there was a ferocious attempt, repeated attempts to amend the constitution that took three years for finally more than three quarters of the Massachusetts legislature to definitively reject any amendment so that it was done. And so many people in the course, once they saw a marriage starting in May of '04, they saw what it looked like, temperature came way down. It will calm down. See, everything was okay. These are people who are really happy, you know, and families are coming to these ceremonies. And people were starting to see what it looked like. And honestly, that kind of thing made such difference and of course that marriage is a happy affair. So one thing I could do was preserve marriage in Massachusetts. And then in addition to that, you know, we now had couples who were married, but whose marriages were utterly disregarded by the federal government because of a law passed in 1996 to say that the federal government would only respect a marriage of a man and a woman. >> George Chauncey: Passed at the moment when it looked like Hawaii might possibly legalize marriage. >> Mary Bonauto: That is correct. That is correct. And so we actually had people now who should have been able to file one tax return as a couple, people who should have been able to get Social Security benefits when their spouse died, but who had none of that. And we decided to be very deliberative about this and talk to many, many people, reviewed many, many surveys about the kinds of issues people were facing. We thought about it very hard and ultimately did file a case challenging the federal Defense of Marriage Act in March of 2009 with basically a very simple theory. State has one class of marriages, you're married or you're not. But then this federal DOMA law suddenly presumes to come in and say some people are and some people aren't for federal purposes. And as we've been asking all along, what's the reason for disrespecting only these marriages? At the time, the way Congress explained it was Judeo-Christian preference for heterosexuality and some other choice statements. But we felt like we had to challenge this. And we had plaintiffs who had tax issues. We had a a state police major who... an investigator who wasn't able to provide retirement support for her spouse in various ways. We tried to cover a number of really important issues for people, and we argued that case in front of a federal judge in 2010 appointed by Richard Nixon, and he ruled in our favor. And then we were on appeal to the First Circuit Court of Appeals, and they, too ruled in our favor. And at some point, a number of other cases were filed as well, including the Windsor case, you know, in the out of New York State in the Second Circuit. And ultimately, the Supreme Court took that case and DOMA was struck down as a massive equal protection affront. And honestly, that changed everything that allowed us to reach back to the rest of the country, because at that point, the federal government had to respect married couples wherever they lived and you had states then who which did not themselves licensed marriage having to accommodate married same sex couples in their states and adjust themselves to the fact that the federal government was requiring respect for those marriages. So it was a real paradigm shift. And, you know, as you know that I think, to everybody's surprise, unleashed a torrent of marriage litigation that no one was expecting. >> George Chauncey: Yeah, I want to come to that in a moment and and maybe just say and even before the court overturn the Defense of Marriage Act in Windsor, it still feels to me that Massachusetts was such a massive turning point because you started having more states first a trickle and then more and more where the state Supreme Courts ruled that lesbian gay couples had to get married. Then you had legislatures actually moving ahead, most famously when New York State, which people think of as a liberal state, but actually has a very conservative tradition around marriage issues, ruled, voted to allow lesbian and gay couples to marry. And you could see if you look at the polling from the moment of the Massachusetts decision pretty steadily every year after that, 2% more of the population looked favorably at gay marriage. You know, it's been a tiny minority, a quarter of people who'd support a marriage equality a decade before Massachusetts. And the numbers were slowly changing and then steadily after Massachusetts, because, as you say, people realize the sky didn't fall. In fact, a lot of people were getting very happy to be able to get married. It wasn't affecting anyone else. And suddenly it had been easy to argue against it as an abstract threat to the sanctity of marriage. And then much harder when people are actually getting married and the reality of the couple down the street being married. >> Mary Bonauto: You bring up a very good point there, George, because one of the pieces of strategic thinking was not only to bring cases initially only under state constitutions and to insulate them for a period of time, at least from Supreme Court review, give states a chance to experiment and show what this looks like. But we also believed we had to win in legislatures and we won in a legislature in mass in 2007. And we view that as a turning point because then we saw more states embracing marriage, New York was certainly notable, like very important being that it is New York. But in the New England area we saw Vermont move from civil unions to marriage. New Hampshire and Maine all approve of marriage legislatively in 2009. And then very importantly, we felt like we also needed to win at the ballot. You know, all of these amendments were effectuated through ballot measures. People had to vote on them. We needed to win. And in 2012, we won at the ballot in Maine, in Minnesota, in Maryland, in Washington state. And so we had that kind of wind at our backs, so to speak, when the Supreme Court took the case that we knew that we knew how to make the case to people about why this mattered and why it was right and why it was okay. >> George Chauncey: It is remarkable after the DOMA decision, the Windsor decision overturning DOMA, my sense is that both Justice Kennedy, who wrote that decision and I may be wrong, but my sense is that you and many other litigators thought it was still going to be many years before the case finally came to the Supreme Court that would definitively establish the right to marry nationwide. And it happened only two years later. I think Justice Kennedy even said something about that from the bench during oral argument that he just hadn't expected that. Why do you think it happened so quickly? Can you talk a bit about that two-year period? >> Mary Bonauto: Absolutely. When the Windsor decision came down and talked about how the state had disrespected and subordinated these same sex couples who had made this commitment to marry, it was in language that was broad enough that really spoke at some level to the fact that state laws denying the right to marry also disrespected and subordinated same sex couples. The Windsor decision talked about how the integrity and stability of families with children was undermined. That DOMA was telling... the federal Defense of Marriage Act was telling the children in these families that they didn't have integrity, that their families were not like others, and that was of concern to Justice Kennedy. And of course, that was also true of constitutional amendments and statutes that forbade marriage. So as some said, there was real music in the Windsor decision. And I will note that dissenting Justice Scalia heard the music too, and didn't like it. And he said, "This decision is so easily transposable to the marriage context or transferable," excuse me. But you could just transpose the language about how DOMA did this and DOMA did X, Y, and Z and say that state marriage laws did the same thing and that logic was true and irrefutable. And so we did see at one point over 100 cases in the states that a number of the LGBTQ litigators were trying to pay attention to and manage and make sure we're adequately briefed at the particularly in federal courts of appeal. Yeah. And what happened? I mean, I'll just tell you that, like, the first one was in Utah in December of 2013, and I think the state had not expected a win at all for the couples and they were not prepared to seek a stay. And so people started getting married in Utah. And when I went out to visit at one point later, because they'd asked me to be involved in some later proceedings, they had one of those little pin that like a pig flying with Utah over it and a heart like, yeah, like pigs are flying in Utah as a result of that decision. And what we saw is one court of appeals after another ruling in favor of the couples, the Supreme Court decided not to review some cases from a number of different circuits in 2014. And then the sixth Circuit Court of Appeals, Michigan, Kentucky, Ohio, Tennessee ruled against couples. And at that point, the issue was joined that we had a split in the circuits and the Supreme Court took that case named Obergefell with many other plaintiffs, including the people who I worked with from Michigan, Jayne Rouse and April DeBoer, and a whole incredible team of Michigan attorneys. And, you know, they all went to the Supreme Court. >> George Chauncey: And why then do you think you won in Obergefell? >> Mary Bonauto: Why do we think we won? >> George Chauncey: Yeah, why did you win again? >> Mary Bonauto: Well, I have to say that it wasn't taking it for granted. There were people who know personalities on the court better than I do who encouraged me not to take it for granted for a second and I didn't. But I think we won, if I may say, because we were right, you know, marriage is long been considered a fundamental right. There's some very eloquent opinions about this. There's one that doesn't get enough airtime that was written by Justice O'Connor called Turner versus Safley about restrictions on an incarcerated person from marrying and the opinion says very clearly, like despite the restrictions of prison life, this is still a public commitment. You know, this is still, for some people, a spiritual endeavor. There's all kinds of protections and benefits that come with the institution. And there's, you know, usually an intimate relationship. So those things all spoke to this situation as well. In addition, of course, to the truly key case of Loving versus Virginia, which was the, you know, the United States Supreme Court striking down centuries of bans on marriage as it was put across the color line on the basis that marriage is a fundamental right, vital personal right for all Americans, and that you can't... government can't tell people they can't marry someone else because of their race. And likewise, we would say sex or sexual orientation. So, again, different circumstances, but the principles were stark. >> George Chauncey: The Supreme Court decided Obergefell and Windsor before it on the legal basis, just as Massachusetts had, and all the other states. And yet that we can see a tremendous cultural shift in response to those cases. And I want to go back to something we talked about before, which is the law's recognition of the humanity of gay people, their capacity to form loving relationships with one another, but indeed the larger public's recognition of that capacity. And I wonder if you could just talk a bit, the legal issues aside, how do you think we... How can we account for the dramatic change we've seen in public opinion in the last 15 or 20 years? >> Mary Bonauto: There's a great deal that goes into that. But I think there's no discounting the time that people have had to process the experience of knowing LGBTQ people, people who marry, attending those weddings, you know, in their workplaces, making adjustments to the fact that people are not outsiders anymore. They're married couples and you treat them like others. It's just the culture had the experience to get to the point where it could be confident that... it wouldn't change anything dramatically. It was really more people making that commitment, being married, having that chance at happiness. And, you know, as people started saying, including one of my daughters at the time, love is love. And, you know, like, what's the big deal? Whoever it is, love is love. And if that's what marriage is about and it's of course about a great many things depending on who you are, that that really, I think, helped carry us. >> George Chauncey: Well, Mary Bonauto, I want to thank you for talking about the campaign for marriage equality and all the legal vulnerabilities that people faced before their relationships could be recognized. And I want to thank you above all for the incredible role you've played in securing those rights. Thank you. >> Mary Bonauto: Thank you and thank you for all you do.