The Defense of the History of (Gay) Marriage

Gay activist and journalist Michelangelo Signorile weighs in on the growing controversy over a new book about the gay marriage battle that tends to overlook the work of a number of advocates at both the state and national level.

The book by Jo Becker, Forcing the Spring: Inside the Fight for Marriage Equality, is billed as the “definitive account” of the marriage equality battle of the past five years. Except it isn’t.

From the book’s Amazon page:

A tour de force of groundbreaking reportage by Pulitzer Prize–winning journalist Jo Becker, Forcing the Spring is the definitive account of five remarkable years in American civil rights history: when the United States experienced a tectonic shift on the issue of marriage equality. Beginning with the historical legal challenge of California’s ban on same-sex marriage, Becker expands the scope to encompass all aspects of this momentous struggle, offering a gripping behind-the-scenes narrative told with the lightning pace of the greatest legal thrillers.

Protesters outside the Supreme Court, and across from the US Congress, for the oral arguments on the gay rights cases involving DOMA and Proposition 8 in March, 2013. © John Aravosis 2013

Protesters outside the Supreme Court, and across from the US Congress, for the oral arguments on the gay rights cases involving DOMA and Proposition 8 in March, 2013. © John Aravosis 2013

For nearly five years, Becker was given free rein in the legal and political war rooms where the strategy of marriage equality was plotted. She takes us inside the remarkable campaign that rebranded a movement; into the Oval Office where the president and his advisors debated how to respond to a fast-changing political landscape; into the chambers of the federal judges who decided that today’s bans on same-sex marriage were no more constitutional than the previous century’s bans on interracial marriage; and into the mindsets of the Supreme Court judges who decided the California case and will likely soon decide the issue for the country at large. From the state-by state efforts to win marriage equality at the ballot box to the landmark Supreme Court case that struck down a law that banned legally married gay and lesbian couples from receiving federal benefits, Becker weaves together the political and legal forces that reshaped a nation.

Signorile walks through three particularly egregious examples of some serious defects in the book, including:

  • Becker’s refusal to name any state advocates who fought, and won, important gay marriage battles in their states in 2012;
  • Her effort to diminish the role, and importance, of Roberta Kaplan, Edie Windsor’s lawyer, in the incredible gains we’ve had over the past few years; and
  • The role AMERICAblog, and specifically Joe Sudbay, played in the debate over the administration’s defense, and then rejection, of the Defense of Marriage Act (DOMA).

I won’t go through all of Mike’s arguments, you can read through them on your own. I would like to weigh in on two points, though.  First, the significance of Prop 8 in our overall marriage quality gains, and the role of AMERICAblog.

Prop 8

As I’ve written before, Proposition 8 in California was a unique evil, the import of which even our straight allies don’t always fully appreciate.  Prop 8 passed in November of 2008, and not only was a statement “against gay marriage,” it repealed the already-existing civil right of gay couples in California to marry.  It was unique in civil rights history, where you’d be hard pressed to find too many examples of civil rights bestowed and then repealed.

prop-8-plaintiffs-air-force-oneBut of course, Prop 8 was even worse than that.  Its advocates claimed that Prop 8 actually dissolved 18,000 legal marriages of gay couples already performed in California.  The new state constitutional amendment, supported by the religious right and Catholic church, and brought back from the dead by the Mormons and their $20 million investment, was vicious.

So, Prop 8 had an incredible impact on the gay psyche. Add to that the legal challenge by esteemed lawyers Boies and Olson, and Prop 8 was hugely important in the marriage equality battle.

Except then a funny thing happened on the way to the promised land: Edie Windsor showed up and crossed the finish line first.

US v Windsor

Here’s some background on Windsor’s case, handled by lawyer Roberta Kaplan, from Wikipedia:


Edie Windsor

In 2007, Edith “Edie” Windsor and Thea Spyer, residents of New York, married in Toronto, Ontario, under the provisions set forth in the Canadian Civil Marriage Act, after 40 years of romantic partnership. Canada’s first openly gay judge, Justice Harvey Brownstone, officiated. Windsor had first suggested engagement in 1965. After Spyer’s death in 2009, Windsor was required to pay $363,053 in federal estate taxes on her inheritance of her wife’s estate. If federal law had recognized the validity of their marriage, Windsor would have qualified for an unlimited spousal deduction and paid no federal estate taxes. In May 2008, New York Governor David Paterson had ordered state agencies to recognize same-sex marriages performed in other jurisdictions. Some lower-level state courts had made similar rulings, but whether the state’s highest court would give such a ruling the force of law, as Windsor’s claim for a refund required, remained uncertain and was disputed throughout her lawsuit.

To make a very long story short, last summer the Supreme Court struck down Section 3 of DOMA, and sided with Windsor.  In the last less-than-year, the Windsor decision has successfully led to at least 14 victories of gay marriage advocates in as many states.

Something else happened last summer on the same day the historic Windsor decision was issued: The Supreme Court also dismissed the religious right’s challenge of a lower court decision finding Prop 8 unconstitutional.  That means, Prop 8 was struck down and gays in California could once again legally wed. It was a huge victory for Californians. And it had nowhere near the national import of US v. Windsor.

Yes, Prop 8 was  the “it girl” in 2008.  And then it wasn’t.  The true hero – well, the latest and greatest hero of the decades-long fight for marriage equality – was Edie Windsor and her lawyer Roberta Kaplan.

Now that’s not to say that lots of other heroes don’t share the crown.  Prop 8 was important in terms of focusing the gay community, and changing attitudes of the public at large.  And lots of commentators and activists from Andrew Sullivan to Evan Wolfson played a huge role, legally and culturally, in moving the marriage ball forward (in addition to the many state advocates that Mike mentions in his piece).  But the people who crossed the finish line first were Edie Windsor and her lawyer Roberta Kaplan.


And now a quick word about DOMA.

Becker mentions in her book the importance of the Obama administration changing its mind and no longer defending DOMA in the courts.  She writes about how the President was incensed when he found out that the administration’s brief filed in support of DOMA on June 12, 2009 had caused an uproar in the gay community, and with the national media.

But Becker doesn’t mention the fact that the “activists” who caused the firestorm were Joe Sudbay and me, writing on AMERICAblog.  Joe had managed to get a copy of the administration’s brief before anyone else in the media, or activist world, had it. Both of us being lawyers, we went through the brief and ripped it to shreds, piece by piece, over the ensuing hours — publishing minute-by-minute updates on AMERICAblog.

People were livid about the brief, but others were mad at us as well.  Some bought into the administration’s argument that they had no choice but to defend DOMA in court.  After all, the Department of Justice said, DOMA is the law of the land, and how could a department of “justice” not defend the law?

But again, being lawyers, Joe and I knew this wasn’t entirely true.  With the help of then-law-student Paul Sousa’s research, we wrote a story detailing how Reagan, H.W. Bush, Clinton and W. Bush all refused to defend certain laws during their respective administrations. We also asked our friend and colleague Richard Socarides, who is also a lawyer, and who worked in the Clinton White House, if he’d consider penning a piece explaining the options the President had.  So Richard did.  And it ended up being the first, and seminal, piece on the topic.

Two years later, the White House and DOJ relented, and admitted that the President didn’t have to, and no longer would, defend DOMA in court.  It was a huge and welcome victory, and it was owed to the work of a lot of people, from activists to organizations, but Joe and I quite literally got the ball rolling.  And you wouldn’t know any of it from Becker’s “definitive” history of the last five years of the gay marriage battle.

Here’s Mike with more:

AMERICAblog broke the story of the Obama administration's brief defending DOMA on June 12, 2009.

AMERICAblog broke the story of the Obama administration’s brief defending DOMA on June 12, 2009.

In another example Becker claims that President Barack Obama and Attorney General Eric Holder, because of their beliefs about what was constitutional, both realized at the same time that they couldn’t defend the Defense of Marriage Act (DOMA) in court, a decision that was made in 2011. Yet she doesn’t detail the relentless pressure campaign that had been going on for over a year before that decision, coming from the streets and online, including from Joe Sudbay and John Aravosis at AMERICAblog. They began the campaign to stop Obama from defending DOMA after the Justice Department filed an offensive brief defending DOMA in June 2009, in the face of many Obama apologists, some connected to the administration, who attacked them and said that the administration had to defend DOMA. Every word and action of Becker’s insiders is reported in detail, but when it comes to others, they’re just anonymous “activists” or vague events or an unattributed headline here or there.


One final point that Signorile explains in more detail, but Becker also overlooked a rather major turning point in the gay marriage battle: AMERICAblog’s then-deputy Joe Sudbay’s interview with President Obama, in which Joe got the President to say that he was “evolving” on the issue of gay marriage.

Here’s Mike:

Joe Sudbay and four other progressive bloggers interview President Obama at the White House on

Joe Sudbay and four other progressive bloggers interview President Obama at the White House

Becker doesn’t even tell the story of how Sudbay got the president to say, during an interview in October 2010, that he was “evolving” on marriage. (“[A]ttitudes evolve, including mine,” Obama said.) It was a pivotal moment, certainly reported on at great length in the media, that would be used against the president over and over by media pundits and activists demanding that he “evolve already!” Becker doesn’t cover it at all, only mentioning, while telling yet another story about the insiders that took place three months later, that Obama had “now said” that he was “evolving,” again making it seem like it was the insiders who had gotten him there.

Enough credit to go around

There’s more than enough credit to go around on the increasingly-successful battle over marriage equality in America.  And there are far more activists and lawyers and organizations than I can remember, who over the decades played key roles in getting us to where we are today.

But Becker’s book, which portrays itself as the “definitive account” of the past five years, doesn’t mention any of it.

It only goes to prove something I learned long ago. History isn’t written by the victors. History is written by those who step up to write it.  And unless you speak out, and challenge fiction, fantasy will eventually become accepted as fact.

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Follow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in Washington, DC. .

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