In 1991, when Tobias Wolff was a senior in college, he watched the Senate confirmation hearings for then-Supreme Court nominee Clarence Thomas, which focused largely on the sexual harassment allegations raised by Anita Hill. He had a strong reaction to the proceedings, particularly the way in which members of the Senate Judiciary Committee conducted themselves. Strong enough, he recalls, to determine his own future.
Wolff, now a professor at Penn Law School, says he was “not terribly impressed” with how the committee handled the set of competing allegations, and his displeasure energized him to enter law as a field of study.
Originally enrolled at New York University, Wolff transferred to Yale, where he received his A.B. and J.D. He began as a J.D./Ph.D. candidate in history, but says he “really fell in love” with law during his first year of law school. Midway through his first year, he says, he knew being a law professor was something he wanted to explore.
After clerking at the U.S. Court of Appeals for the Ninth Circuit, Wolff taught law at the University of California, Davis. He arrived at Penn in 2007, where he now specializes in conflict of laws and complex litigation.
He is also a leading legal advocate for equal justice for lesbian, gay, bisexual and transgender (LGBT) communities, serving on the Board of Directors of the Equal Justice Society and as legal advisor and LGBT policy chair during Barack Obama’s 2008 presidential campaign. In California, Wolff filed a petition to stop the enactment of Proposition 8. After it passed, he filed a brief to strike it down.
Wolff spoke with the Current about the field of law, whether ‘gay is the new black,’ and about the ongoing struggle for equal rights in America.
Q. In November of 2008, you filed a petition with the California Supreme Court to stop the enactment of Proposition 8. Where are you now in the fight for gay marriage?
A. In California, I’m sad to say that we lost that fight. The Supreme Court of California issued a ruling in this case, Strauss v. Horton, and we lost, and that was a disappointing loss. There are two efforts underway in California now. One is an effort to build support for a repeal of Proposition 8 through the ballot box. There’s a debate underway in California about which election cycle to try that repeal effort, 2010 or 2012.
Second, there’s a lawsuit right now in federal court bringing federal constitutional claims. There are two very high-profile lawyers. Ted Olson, who used to be President [George W.] Bush’s solicitor general and represented Bush in the Bush v. Gore case, and David Boies, who is a liberal lawyer who represented Al Gore in Bush v. Gore. It’s an interesting pair. They have filed a federal constitutional challenge to Prop 8.
There’s no question in my mind that their claims are meritorious. There’s no question in my mind that Prop 8 violates the federal Constitution. The question is whether it’s the right time to bring the lawsuit and whether the Supreme Court of the United States will be ready to recognize their claims. I’ve played a role in that suit. I filed a brief on behalf of Equality California emphasizing a fairly narrow constitutional argument, which I think is correct and which supporters could use to strike down Prop 8 without answering the broader question about marriage equality for people around the country. That lawsuit is underway. They have, I think, a tentative trial date in early January. There’s a lot of energy in California.
Q. California and Proposition 8 have recently gotten most of the attention in this debate. Is there any legal action happening in the rest of the country?
A. The opponents of equal rights in Maine are trying to block the Maine statute that would give equal marriage rights to gay and lesbian couples in that state. There’s a big campaign underway there. It’s very close, but it looks like we might win that campaign.
A legislator in New Hampshire has just announced that he’s going to try to block the New Hampshire marriage statute from going into effect, although I don’t think that he has much chance of success there.
In New York and New Jersey, we currently have efforts underway to enact marriage equality through the legislature. So there does appear to be some momentum. It’s an exciting time.
Q. Do you think Pennsylvania will ever allow gay marriage or is the middle of the state too conservative?
A. Pennsylvania is pretty far behind in a lot of ways on equal rights. It’s actually one of the worst states in the country when it comes to recognizing the equal rights of its gay, lesbian and transgender inhabitants. There are about 12 million people in Pennsylvania and by conservative estimates that means there are probably about 750,000 LGBT residents. That’s a lot of people to be denying rights to. I think that Pennsylvania’s going to have to come into the 21st century eventually, and the question is when. Obviously the legislature has [had] its hands full with the budgetary crisis. I don’t know the answer to the question of when Pennsylvania will get its act together but it’s overdue.
Q. The 14th Amendment seems pretty clear in its guarantee that no state shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ What exactly is the opposition’s legal argument for denying gay marriage?
A. To be honest with you, they don’t have much of an argument. Sometimes they talk about arguments about kids. They try to argue that somehow gay and lesbian parents are not as good parents as straight parents. No. 1, that’s just not true. All of the evidence that has sought to answer that question has come to exactly the opposite conclusion: That in fact, all other things being equal, gay and lesbian parents are just as good at being parents as straight parents.
Second, it’s always been a very confusing argument because there are all kinds of groups of people who, on average, have potentially less successful outcomes with their kids. Low-income parents, on average, have less successful outcomes in some ways with their kids, [but] we would never say we’re going to take support away from them. If anything, if we identify a population of people who have some kind of greater challenge in raising their kids, we give them more support. So in addition to the fact that these arguments about [gays and lesbians] raising kids are just wrong on the facts, they’ve never struck me as a particularly good argument for denying gay and lesbian couples the right to get married and for denying them equal support for their kids.
The other thing that opponents of equal treatment tend to say is that they somehow have to defend traditional marriage. I’m never quite sure what they mean by that because, first of all, traditional marriage, if one actually looks at the way that marriage has operated, is not a very pretty picture for women. Until very recently, women were treated as second-class citizens in marriage and basically lost most of their civil rights when they got married, and certainly lost most of their property rights and were treated very harshly under the law. Starting in the 20th century, and most significantly in the 1950s, 60s and 70s, we actually started recognizing equal rights for women generally, and particularly in family law and in the marriage context. So when people who oppose equal rights for gay couples talk about traditional marriage, I’m never quite sure which version of tradition marriage they’re talking about. But regardless, this is an argument that is a little bit tautological. At the end of the day, it seems to be an argument that we want straight couples to be the only ones who can get married because we only want straight couples to be able to get married. That’s not much of a legal argument. It may be an explanation for why these folks don’t like the possibility of gay couples being able to get married, but it’s not much of a legal argument.
Q. President Obama was criticized for a brief his administration filed in support of the federal Defense of Marriage Act. What are your thoughts on his administration’s support of the statute?
A. That’s a complicated issue. There’s a longstanding presumption that the Justice Department will defend statutes against challenges even if they don’t like the statute. The Administration has filed now, I think, three briefs in the Defense of Marriage Act cases. The first one was not very well thought out and it had some arguments in it that were, I think, really insupportable. Unfortunately, the reporting on that first brief was wildly inaccurate. [The media] took a very legitimate criticism about some arguments that [the Administration] made, which were just analytically wrong and insupportable and kind of thoughtless, and then also made some really offensive arguments that were simply not in the brief and never true.
This business about comparing gay relationships to incestuous relationships and so forth was just not an accurate characterization of the brief at all. There’s a lot of work to do in securing equality for this community and if people need to get angry about it, then I think they’re entitled to get angry about it. But, I thought it was unfortunate that the reporting surrounding that brief was really quite inaccurate. Having said that, the briefs did get a lot better and it was good that people raised their voices because the Justice Department and the Administration listened and the next briefs were much better not just in language and tone, but also in the arguments that they make. Not perfect, but much better.
Q. Some people have said that ‘gay is the new black’ in regards to civil rights. How do you feel about this characterization?
A. It is clearly true that gay, lesbian, bisexual and transgender equality is one of the most important civil rights issues of our time. I don’t like particularly this little sound bite that ‘gay is the new black.’ I think that it’s thoughtless in a lot of ways. There are a whole lot of gay, lesbian, bisexual and transgender people of color, and they have a lot to tell us about their respective experiences, and how they overlap and how they inform each other. There are also a lot of black people and leaders who aren’t so happy about the comparison between the civil rights movement and the gay rights movement. I regret the fact that they don’t like that comparison. But I need to respect that fact and be prepared to meet them on their own ground and try to bring them in as allies on this fight.
Q. Former Vice President Dick Cheney has voiced his support for gay marriage. He stated, ‘Freedom means freedom for everyone … People ought to be free to enter any kind of union they wish.’ Would you consider him an ally?
A. I’m glad that he said that. I don’t pretend to know what led the former vice president to that opinion, but presumably the fact that he has a lesbian daughter had some impact on the way that his views took shape. He’s a great example of an unlikely person who has gotten to what sounds like a pretty good space on the issue because he knows and cares about somebody who’s personally impacted by the issue. I don’t know whether I would go so far as to call him an ally, but I’m glad that he has the view that he does on the issue.
Originally published on October 29, 2009