Mary Bonauto has played a key role in almost every big win in the marriage fight, and she’s not done yet. “I want to be a part of helping take it over the finish line.”
Mary Bonauto is escorted by police on May 17, 2004, the first day same-sex couples could marry in Massachusetts.
Susan R. Symonds / Infinity Portrait Design / Via infinityportraitdesign.com
PORTLAND, Maine — Ten years after the Massachusetts Supreme Judicial Court ordered that the state become the first in the country to allow same-sex couples to marry, the once-feared concept has gained mainstream popular support, is recognized by the federal government, and is now the reality in 15 states and Washington, D.C.
Without Mary Bonauto, however, marriage equality might never have happened.
The lawyer brought marriage equality cases in Vermont, Massachusetts, and Connecticut. She argued the case to the justices in Massachusetts who brought marriage equality to the United States. She won the first decision striking down the Defense of Marriage Act's federal definition of marriage, and the first appellate decision too — a ruling that forced the issue before the U.S. Supreme Court earlier this year. If there's been a big moment in marriage equality's long march to reality, Bonauto was probably there.
And it's no secret either: The movement's other leading lawyers openly credit Bonauto for making the success possible.
Evan Wolfson, the lawyer who served as co-counsel in the Hawaii case that started the marriage equality discussion in full force back in the 1990s and now runs Freedom to Marry, gives Bonauto credit as the lawyer who "was able to deliver it." Paul Smith, whose argument at the Supreme Court led the justices to end sodomy laws across the nation, says she has been "essential" to LGBT progress since the 1990s.
"For Mary, it's all about winning — and it's not winning for her sake, it's winning for the dignity and the equality of gay people," says Roberta Kaplan, the attorney who argued against DOMA at the Supreme Court this year. "And everything that she has done in her career — everything — has been focused on that objective."
WHEN Bonauto first started at Gay & Lesbian Advocates & Defenders (GLAD), her task wasn't marriage equality at all, the 52-year-old lawyer explains at her kitchen table.
At home in Portland, where she lives with her wife, Jennifer Wriggins, and their twin daughters, Bonauto does not have the sharp edges of a lawyer who has squared off with the federal government on one of the most divisive issue of the day. She's just picked up pastries from her favorite bakery — not the kind of place that makes trendy cupcakes — in her minivan. Her gentle demeanor, however, is countered by a rapid-fire manner of speaking, belying the legal mind behind an easy smile.
After growing up and going to college in upstate New York, Bonauto graduated from Boston's Northeastern University School of Law in 1987 and began her legal practice in Maine. Bonauto became the director of Boston-based GLAD's civil rights project in 1990 to help litigate cases aimed at enforcing a new Massachusetts law banning sexual orientation–based discrimination in employment.
She told Wriggins that the job might only last a year or two.
"It wasn't clear the law was going to be around," she says. Though the discrimination ban had been signed into law by then-Gov. Michael Dukakis in 1989, a bid was under way to put the law on the ballot and up for a vote.
It did stay on the books, though, and Bonauto began bringing cases under the law.
"I was two and a half years out of law school, and I was trying to take on this idea … of showing why these nondiscrimination laws made sense, why nondiscrimination is the right policy," she says.
"The ferocity of the litigation was an indicator of where we were at because people were just so offended at being sued by 'a fag,'" she says of the era. "I mean, 'You're telling me I can't get rid of this person? You've got to be kidding me.'"
It was in this environment that Bonauto turned down potential challenges to marriage laws.
"On my very first week on the job, a couple called me, and I had to say no. I said no a lot, and it's not like I like saying no. I wanted to get married to Jenny, I did," she says. "For me, just, as a strategic matter, it was absolutely not the right time. And I have no second thoughts about that. At all."
But everything changed in 1993, when the Hawaii Supreme Court irrevocably shifted the focus of LGBT organizations — and of those opposed to LGBT rights.
In a landmark ruling, the Hawaii court held that the state would have to show a compelling reason for treating same-sex couples differently from opposite-sex couples. The ultimate results of the ruling in Hawaii would be muted for 20 years: The state passed a constitutional amendment in 1998 that allowed the lawmakers to restrict marriage to opposite-sex couples, before becoming the 15th state to legalize same-sex couples' marriage last week.
The ruling, however, reverberated far beyond Hawaii. At the time, the LGBT movement had, primarily, been focused on defensive efforts — from addressing hate crimes to repealing sodomy laws to responding to the AIDS crisis — and passing anti-discrimination laws. Now marriage really began drawing the attention of advocates.
LGBT advocates weren't the only people, though, who took note: Congress passed DOMA in 1996 in an effort to stop any other state or the federal government from needing to recognize any marriages of same-sex couples granted in Hawaii.
"It was one of those things where people's hopes had really been kindled, and then they were smashed," Bonauto says. "And then we faced the onslaught of the state marriage statutes."
After President Bill Clinton signed DOMA into law, Bonauto took the first of several key steps to change history, working with lawyers in Vermont to file a lawsuit in 1997 seeking marriage licenses for same-sex couples in the state.
"When Mary first started pushing that strategy with respect to the Vermont case, everyone told her she was crazy," says Kaplan. "It's one of the most brilliant, concerted litigation strategies I have ever seen — going step by step by step."
Bonauto and others at GLAD began working on the marriage case with two Vermont attorneys, Beth Robinson and Susan Murray. As they did so, though, the effort faced scrutiny from within the LGBT political and legal world. Coming so soon after the passage of DOMA and as voters in Hawaii and Alaska passed amendments halting marriage equality efforts in their tracks, the marriage equality fight that Bonauto has led did not start with a united front. Some advocates worried the trio's legal efforts in Vermont could set off a damaging chain reaction.
"I think there was a sense [from the political groups] that the legal groups were crazy," Bonauto says. "I remember many conversations … where the political groups would come in and they would basically caution us about doing things that would trigger a federal marriage amendment. That was always the concern."
The case reached the Vermont Supreme Court for oral argument on Nov. 18, 1998, and Robinson — now a justice on that court — argued the case. After a wait of more than a year, the decision finally came down on Dec. 20, 1999.
Bonauto immediately flew to Vermont from Massachusetts — before she had even read the opinion. "I had to jump on an airplane without seeing it … [or knowing] exactly what it meant," she says.
Vermont Supreme Court Chief Justice Jeffrey Amestoy wrote for the court that "legal protection and security for [same-sex couples'] avowed commitment to an intimate and lasting human relationship is simply, when all is said and done, a recognition of our common humanity."
Despite the language, the decision shocked Bonauto. The court had ducked the question of whether marriage needed to be extended to same-sex couples by leaving that decision to the legislature — an out that led the legislature to create civil unions instead. Particularly coming after the steamrolling against marriage equality on the federal level in 1996 with DOMA and the 1998 loss before the voters in Hawaii, Bonauto and others were looking for marriage. The civil union concept, as Bonauto says, gave otherwise supportive politicians room to believe, "We can be fair to gay couples, and it doesn't have to be marriage!"
Nonetheless, judging the political reality at the time, GLAD backed the move — although she called it "a bitter thing" and acknowledged that some of their coalition partners left the group over the decision because it was not marriage.
"Looking back on it in hindsight, knowing how much grief I have felt over civil unions over the years," Bonauto says, "I still think it was the right thing to do because we didn't have any comprehensive status anywhere. We didn't really have a family in a way that seemed like a family to anyone, as a legal matter."
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