Reshaping Society From the Outside In

Shortly after he was admitted in 1978, Evan Wolfson turned down Harvard Law School.

Wolfson--a New York-based civil rights attorney who is co-counsel on the landmark Hawaii gay marriage case slated for trial Sept. 10--had had a couple of “intense crushes” on male classmates at Yale college and realized he was gay. Needing time to sort out his personal life, he instead joined the Peace Corps, which assigned him to Pagouda, in Togo, Africa.

Looking “utterly remote and beautiful, like the end of the Earth,” the village stood on a plateau at the end of a dirt road with only huts and ponds as far as the eye could see. There, the Pittsburg native taught English and founded the Pittsburg-Pagouda Friendship Library. Students walked miles to use Togo’s second largest public library, whose impact was profound, said then-country director Jody Olsen.

For Wolfson, 39, the experience was also a chance to “explore life free from everything that had gone on before. . . . When people think of the Peace Corps, they think what it’s like to live with no electricity. But that wasn’t what I found different.

“It was the feeling of always being an alien, being alone. That made me think about sexual orientation. I realized that people can be gay on the inside, but how they build their life around that is shaped by society. I made friends in Africa who will undoubtedly marry women. They will never be as happy or as fulfilled as they would be were they able to do what their true heart wants.”

Two years after joining the Peace Corps, and after experiencing his first same-sex relationship, Wolfson reapplied to Harvard, figuring that “If I got in again, I was meant to be a lawyer.” Get in he did. And that’s where he wrote his third year paper on legalizing gay marriage--this in 1983 when the issue was not even a blip on the national consciousness.

Then again, Wolfson had always gone his own way, said his mother, Joan Wolfson. In particular, she recalled a call she once got from the principal at Evan’s public high school.

Wolfson--who even now stands only 5 feet, 6 inches--had been walking toward two swinging doors when a bully barred the way. His friends backed off. But, the principal told her, “Evan pushed the door and said, ‘Excuse me.’ He repeated it two more times, then pushed the door right into this guy.”

In college, Wolfson was elected speaker of the Yale Political Union and was campus coordinator for the ’76 Carter-Mondale campaign. Upon graduation from Harvard Law, with the most lucrative legal jobs open to him, he made another unconventional choice: He became an assistant district attorney in Brooklyn, prosecuting muggers, murderers and rapists. He spent his free time doing pro bono work at the Lambda Legal Defense Fund, the 23-year-old New York-based national gay rights legal organization.

In 1985, Wolfson wrote his first Supreme Court amicus brief on behalf of National Gay Task Force vs. Board of Education of Oklahoma City, contesting a state law permitting the firing of teachers who “promote or support homosexuality.” His side won that one. His second brief was on the closely watched 1986 case Bowers vs. Hardwick, defending a Georgia gay couple arrested at home for sodomy. Gay rights advocates lost that one by the closest of margins.

Wolfson’s work with Lambda caused his boss, Dist. Atty. Elizabeth Holtzman, to ask him to help out on a Supreme Court brief challenging race discrimination. The resulting ’86 decision on Batson vs. Kentucky made it illegal for prosecutors to exclude potential jurors based on race. Wolfson also wrote a successful brief for the New York State Court of Appeals, which made a husband’s rape of his wife a crime in New York State.

Wolfson continued to find himself in the eye of political storms. He went to work for special prosecutor Lawrence E. Walsh, who was investigating the Iran-Contra affair. When the FBI and CIA stonewalled Walsh’s requests for data, backed up by then-Atty. Gen. Richard Thornburgh, Wolfson wrote the first draft of a brief against both the intelligence agencies and the attorney general--in effect a young pup attorney taking on the nation’s top lawyer. “He was completely unafraid,” recalled Walsh, still laughing at the memory. And yet, Walsh said, even in the heat of battle, Wolfson never lost his doggedness or perspective on what was important.

A year later in 1989, Wolfson returned to Lambda as one of four staff attorneys. The organization has since tripled to 12 staff attorneys, with branch offices in Los Angeles and Chicago. Wolfson helped nurture this growth by “being a team assembler rather than a prima donna,” said John Davidson, a Los Angeles staff attorney. “He puts the cause first and uses the law as a tool, rather than using the cause for self-aggrandizement. That’s unusual for a lawyer.”

*

Nevertheless, Wolfson was overridden six years ago when he wanted to take the case of Ninia Baehr and Genora Dancel, who had approached Lambda for help in challenging Hawaii’s marriage law. “The time did not seem ripe; the others thought we had too little chance of winning,” he said. Instead, he gave the couple informal advice as they sought out a Hawaiian civil rights lawyer.

The same summer, he took a vacation with Harvard classmate Bill Treanor, at whose wedding he would subsequently be best man. While others hit the Caribbean, the friends went to the Birmingham, Ala., city jail, where Martin Luther King Jr. had written his historic letter from Birmingham. “Evan wanted to feel what it had been like for King,” said Treanor, now a law professor at Fordham University in New York.

The two visited other historic sights of the movement, including the Southern Christian Leadership Conference fountain in Montgomery, Ala., which lists those who died in the civil rights struggle. “Evan put his hands in that fountain, feeling the water. He was establishing a kinship with those who had gone before him,” Treanor said.

In the meantime, Baehr and Dancel found a Hawaiian attorney who was a partner in a two-man firm. Happily married, with two sons, Dan Foley took on the case because, “They had no one else to turn to. And who am I to tell these people they can’t have what I have?”

Foley had little expectation of winning, but the stakes shot up when the Hawaii Supreme Court decided in 1993 that the state must prove it had a “compelling interest” in disallowing gay marriages. That decision catapulted the issue to congressional hearings and resulted in bills proposed before 37 state legislatures, including California’s, banning recognition of gay marriage. It has also resulted in the House of Representatives passing the Defense of Marriage Act this summer outlawing federal recognition of gay marriage, with both President Clinton and challenger Bob Dole saying they will sign the bill.

The decision also resulted in Foley realizing he was in above his head and asking Wolfson to join him as co-counsel. Why Wolfson?

“Evan comes in having thought about this issue better than I. And without Evan, how could I be dealing with the U.S. Congress? I can’t even afford to fly to Washington,” Foley said.

Finally, the decision resulted in Lambda’s reversing itself, allowing Wolfson to do battle precisely against the kind of overwhelming odds he relishes. And so, 13 years after writing his law school paper, Wolfson will no longer be making a theoretical argument before a single professor. Rather, in Baehr vs. Miiki, he will be arguing about real lives, with the nation looking on.

Each side in the trial will call about half a dozen witnesses to testify to the psychological, social and economic impacts of not allowing gays to marry. Both sides expect an appeal of the verdict, no matter what it is. The case, Wolfson said, centers on gays “no longer being aliens in our own land.”

“For most people, the decision on whom they marry is one of the most important in their lives. To be told that you cannot marry, that your relationships are not worthy, is to be told that you’re a second-class citizen, a stranger in your own land.

“I’ve always dreamed of falling in love and sharing my life with another and having that love respected and honored,” said the still-single lawyer. “This fight is part of that battle.”

Concluded Treanor: “Evan draws great strength from history. He wants to be part of that flow. . . . I look forward someday to being best man at his wedding.”