What winning same-sex marriage in Mass. meant, as told by the lawyer who argued it

Twenty years ago, two Malden women, Marcia Kadish and Tanya McCloskey, became the first same-sex couple to be legally married in the United States. The momentous event — in a courthouse, just after midnight — was the result of a decision made the year before by the Massachusetts Supreme Judicial Court. Mary Bonauto, an attorney with GLAD — then known as the Gay and Lesbian Advocates and Defenders — represented seven couples in a suit against the Massachusetts Department of Public Health before the state’s highest court.

The historic ruling made in the case, Goodridge v. Department of Public Health, made Massachusetts the first state to officially legalize same-sex marriage, following a small handful of countries that had already taken the step. Two decades later, same-sex marriage has been legalized in dozens of countries, extending the right to more than 1.2 billion people.

Bonauto was the architect and lead litigator with GLAD, now known as the GLBTQ Legal Advocates and Defenders. Bonauto reflected on the case with GBH's All Things Considered host Arun Rath. What follows is a lightly edited transcript.

Arun Rath: So first, let's take our minds back 20 years to the state of politics leading up to this case. What had to happen for this case to reach the Supreme Judicial Court here in the first place?

Mary Bonauto: A few things. One is, we had been hearing from same-sex couples for many years about all the problems that they had because they did not have an officially recognized family, particularly a marital family. I'm talking about the couples themselves who were unable to buy policies for health insurance together, or file their taxes together. I'm talking about the kids who would say things, like, “When people see us together, they see two guys and a kid. They don't see a family,” and it's true that marriage simply provides lots of protections for families that help the kids thrive and help the families thrive.

So there was a lot of pent-up demand, if you will, because there were a lot of people who wanted to marry each other, wanted to define themselves by this commitment, and yet were blocked from doing so.

And there was no real alternative. The Legislature had turned down incredibly modest domestic partnership measures, and so, eventually, with all of the real stories we were hearing about people aspiring to make that commitment, we eventually collected some people who'd been interested. That was seven couples, the seven Goodridge plaintiff couples, and we started the process in court.

We filed a case under the Massachusetts Constitution, which is full of protections for equality and liberty — which is exactly what this was about as a legal matter.

Rath: It's really amazing, actually, to kind of think back to what it was like before, because I remember, you know, going back to the ’80s and ’90s, during during the AIDS crisis, when there were so many people who couldn't be the legal caregiver for their for their life partner.

Bonauto: Exactly right. And I think the whole AIDS crisis really heightened awareness in the LGBTQ community that having a legally recognized family matters. It's a pretty horrible thing to be turned away from caring for the person that you have loved for years, and those experiences were not confined to the time of the AIDS pandemic.

So, in addition to HIV and AIDS, you had many, many more couples having children of their own volition. Like many people wanting to raise and nurture the next generation and bring children into their family. But again, that family was not seen as a family, and it could be very, very difficult for the non-birth parent, for example, to be able to be seen as a legal parent. And that really matters! Kids and parents deserve that security.

Rath: That was an amazing moment of victory, but it was really just the start. If you can summarize an awful lot, tell us about the road from victory in Massachusetts to seeing the federal Supreme Court legalizing same-sex marriage nationwide in 2015.

Bonauto: So first of all, we filed the Goodridge case in Massachusetts with these seven couples — who all, I think, were tremendous in terms of simply explaining very patiently and willingly to the public why they were taking this extraordinary step of becoming a plaintiff in a marriage case. They were talking about why marriage mattered to them and to their children, and actually to their larger communities, as well. It mattered to their employers in many cases, who wanted to be able to treat same-sex couples more fairly and provide the kinds of protections that were otherwise foreclosed. So, that was one piece of it.

They file this case, we lose in the first round, and ultimately the Supreme Judicial Court of Massachusetts — in, really, an historic ruling, breaks that historic barrier. And I really think that decision, as well as the vigorous defense of that decision in the commonwealth by ordinary people, who really came to convince their legislators in the course of three and a half years not to change Goodridge, but to keep it. Those things all really mattered.

We had marriages happening in 2004, and then we had that marriage ruling really anchored in Massachusetts — no one was going to take it away. We really had a turning point in the country. And many more states, and even legislatures, started approving of marriage.

As those accumulated, we received another wave of calls from people whose marriages were being disrespected by the federal government, in everything from social security to taxation to family and medical leave, you name it. Because there are over a thousand federal laws governing how married people are treated under federal law.

And so, again, we put together a case to challenge that law in federal court, saying: Under federal law, normally there's just one class of married people, and you're saying people who are married to someone of the same sex in Massachusetts are not married — but that just flatly violates equality principles.

We won that case at the district court level and at the Court of Appeals, locally. Ultimately it was another case that took it over the line in the U.S. Supreme Court.

But, as of 2013, that process was completed and the federal government began respecting marriages nationwide. And I think that mattered, too. And I will just say that that effort, again, began in Massachusetts.

Rath: So, 10 years after that, we have a very different Supreme Court — and a U.S. Supreme Court that has showed some inclinations toward looking at past decisions such as Roe v Wade. Justice Clarence Thomas commented about revisiting some past decisions, implying the federal same-sex marriage ruling [Obergefell v. Hodges] would be among them. How concerned are you that the rights that you achieved in Massachusetts, and beyond, could be under threat?

Bonauto: Well, I will say this: I am always concerned about the future. I was concerned about it a long time ago, too. When we think about the possibility of Obergefell being overturned, I want to say: It would be outrageous. That decision really should be safe. At the same time, I am not complacent about anything.

I would say it is essential in so many issues for people to stay engaged in the political process, to be paying attention carefully to what the federal judiciary is doing, and also on the human level, to make sure people know we're families and why marriage, among many other things, really matters. So that's one thing that I would say.

But the other piece of it is: the whole idea that you can marry the person you love and have a family is a central part of how our society is organized. And same-sex couples have now been easily folded into that system, and there is no need to disrupt that. Essentially, all the same rules apply to same-sex couples as to other married couples. So it has simplified things for businesses and all kinds of economic actors, and for governments, too, because there are defined and predictable rules. So again, you would like to think that it would be outrageous to change any of that.