An Idea Whose Time as Come

 Mary Bonauto makes her Supreme Court debut today and the stakes couldn't be higher. (image via  Wikimedia Commons )

Mary Bonauto makes her Supreme Court debut today and the stakes couldn't be higher. (image via Wikimedia Commons)

Five years ago, I interviewed Mary Bonauto, civil rights lawyer with Gay & Lesbian Advocates & Defenders (GLAD). She had just undertaken one of the first steps in her long-term legal strategy to legalize same-sex marriage throughout the entire country. Filing narrow challenges to the federal Defense of Marriage Act, Bonauto was very sensitive to the idea that many people in this country just weren't ready for the idea of marriage equality and didn't want to provoke a backlash.

There were also strategic reasons. Long known as the "Thurgood Marshall" of gay rights, she had decided to take a page out of the man's playbook by filing narrow challenges to anti-marriage equality laws rather than go for it all at once. By steadily chipping away at these laws, pro-same-sex marriage attorneys would have a raft of precedents on their side when they started filing broader-based challenges in the future.

As such, she tailored her initial challenges (Gill v. Office of Personnel Management in Massachusetts, as well as similar cases in New York and Connecticut) narrowly - targeting only one section of DOMA and avoiding the part of the law that guaranteed states the right not to recognize same-sex marriages performed in another state. She even expressed concern that the Prop 8 challenge, which was making its way through the courts at the same time, was too much, too soon (indeed, that case, along with one of Bonauto's cases were eventually heard by the Supreme Court at the same time in 2013). She was clear that she wanted every state to recognize and allow same-sex marriages - she was just concerned that it wasn't the right time. "There are times when it's important to take things in pieces," Bonauto said at the time. "This is one of those times."

I should have asked her if she thought the country would be ready for marriage equality by 2015, or if that was wishful thinking. Today, she makes her oral argument before the Supreme Court in the case of Obergefell v. Hodges. The case could resolve many of the outstanding issues left in the marriage equality debate (like if there is a right to marry a consenting adult of the same gender, or if states must recognize out-of-state same-sex marriages). It's true that the Court could decide not to rule on these issues or take a more narrow approach and save the rest for another day. But the fact that Bonauto decided that the country could accept marriage equality and that it was time to press the broad issue of whether or not there's a constitutional right to same-sex marriage speaks volumes. Today, same-sex marriages are legal in 37 states (plus the District of Columbia) and over 60 percent of Americans support it- a record high. It's actually gotten to the point where several GOP presidential candidates, while still opposing gay marriage, have had to finesse their opposition by saying they'd support a gay family member or loved one getting married (even Rick Santorum had to perform some political jiu-jitsu on that count).

As Everett Dirksen (quoting Victor Hugo) said during the passage of the 1964 Civil Rights Act "Stronger than all the armies is an idea whose time has come." We'll see if the Supreme Court agrees. (Spoiler alert: The result is very much up in the air).

Victor Li

chicago, il